The religious status quo could also be a non-observant or explicitly atheistic or agnostic household, which would also have to be respected under the rule that Eugene supports. The alternative is for the courts to determine which religions are "extremist," a questionable role for the judiciary.
Richard T. Foltin Director of National and Legislative Affairs Office of Government and International Affairs p: 202-785-5463, f: 202-659-9896 folt...@ajc.org Join us at the AJC Global Forum 2012, May 2-4 in Washington, D.C. REGISTER NOW Take Action with AJC by visiting the Action Center NOTICE This email may contain confidential and/or privileged material and is intended for the sole use of the intended recipient(s). If you are not the intended recipient, please be advised that you have received this email in error and that any use, disclosure, copying, distribution or other transmission is prohibited, improper and may be unlawful. If you have received this email in error, you must destroy this email and kindly notify the sender by reply email. If this email contains the word CONFIDENTIAL in its Subject line, then even a valid recipient must hold it in confidence and not distribute or disclose it. In such case ONLY the author of the email has permission to forward or otherwise distribute it or disclose its contents to others. -----Original Message----- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Friday, April 20, 2012 9:24 AM To: Law & Religion issues for Law Academics Cc: Law & Religion issues for Law Academics Subject: Re: Mothers leaving ultra-religious groups, and religious upbringing as a factor in custody disputes I don't think it is a difficult question but disagree that the rule is sound. The standard should be the best interest of the child. Stability in an extremist religion is often not in the child's best interest, especially if the child is a girl. For example, the FLDS. The best interest of the child can also trump mainstream religions depending on the facts of the case. The focus must be the child. This sort of assumption that religious status quo is a social good is an unconstitutional preference for religion. This is a good example of when the application of a neutral generally applicable principle can serve the greater good more directly than a religious preference. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University New York, NY 10003 On Apr 20, 2012, at 9:09 AM, "Volokh, Eugene" <vol...@law.ucla.edu> wrote: > There's an interesting op-ed at > http://blog.nj.com/njv_guest_blog/2012/04/among_nj_orthodox_jewish_women.html > that faults the child custody law preference for stability of religious > upbringing: When women leave arranged marriages in the ultra-Orthodox Jewish > community -- and leave ultra-Orthodoxy more general -- they may sometimes > lose custody of their children on the grounds that the person who remains > within the community is more able to provide stability of religious > upbringing. > > I'm inclined to say that this rule (which of course could equally apply to > fathers who leave a religious community as well, though I don't know how > relatively frequent such departures are) is a sound one, for children who are > old enough to have some experience with the religion and thus some stake in > stability of religious upbringing. To be sure, the rule does create some > pressure against departing the faith, since often someone who leaves the > group can no longer raise the children in the same religious environment even > if she's willing to, because the group might no longer accept her; but this > seems in this situation to be an acceptable and denominationally neutral rule > (especially if it is equally applied to a parent who moves into a > ultra-religious community which disrupts the stability of the children's > nonreligious, or only mildly religious, upbringing). But I still thought I'd > mention the op-ed, in case people think it's a difficult and interesting > question. > > Eugene > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu To subscribe, > unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are posted; > people can read the Web archives; and list members can (rightly or wrongly) > forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
