And that raises the issue from my prior post -- would a Jewish parent reciting
a Hebrew prayer before dinner "confuse . . . the faith formation" of a child
being raised as a Christian? Does the court have the power to condition
visitation right on a parent refraining from praying before meals? I
Marty puts the matter in the right analytical framework.
Arrangements regarding important child rearing issues are made, where
the family is intact, by the parents (typically) and the parents are
free, within fairly broad limits to be as "unreasonable" as they wish to
be. They are constrained b
Actually, the New York appellate court approved a father's petition for
overnight visitation, but stressed that this was done only because the father
and his fiancee "agreed to refrain from exposing the child to any ceremony
connected to their religious practices," and because the Family
But I hadn't already been exposed to it. For the first 8 years of my life I
was raised with no religion at all. After that, not only did I have a
Pentecostal stepmother, my father agreed that I would go to church with her
every week (and I did, even becoming a Christian for several years). I think
I dont think Im confusing those issues, Im saying that the latter issue
inevitably collapses to the first. The idea that religion is to be preferred
to non-religion, which is omnipresent in case after case in this area, IS an
ideological predisposition, and it is one that exists without any soli
I don't think Eugene's test case helps us see the problem clearly in these
religion
disputes. In deciding the "best interests of the child," it is virtually
inevitable that a court will eventually be required to evaluate the
"philosophy"
to which the child will be exposed -- a philosophy that
At 03:27 PM 1/24/08 -0600, you wrote:
I know I will probably be slapped down on the ground that it is not a
legal consideration, but isn't judges deciding what will "confuse" the poor
dears, well, patronizing? I had problems with my parents' pseudo-solution
to interfaith issues, but I am sure
I agree with the distinction, and I agree that a judge should base a
decision on more than generalized hypothetical injury. However, where there
is credible evidence of a serious risk of injury, which survives rebuttal,
that to me justifies some level of restriction, even on a conventional
free-spe
At a practical level, of course, what parent would come out in open court
and say "we're racists here, you can't let my child consort with other
races"?
(Vance Koven)
No, but the present case reminds me of Palmore v. Sidoti. The father argued
for, and initially got, custody on the grounds that hi
I appreciate Vance's kind words, and the response. But I'm not sure it
quite works:
1. Can it really be that the First Amendment rule is "no viewpoint
discrimination in custody decisions, except that viewpoint
discrimination is OK against racist parents"? The Court has not
accepted "race is al
Enforcing the parties' express agreement is one thing (cf. Cohen v.
Cowles Media in the free speech context). But restricting the speech of
a parent -- whether religious or political -- without an express
agreement is quite another.
Also, if the rule applied by the New York court was tha
As always, Eugene finds the telling counter-example.
I would argue (just a little shamefacedly) that in America race is almost
always a special case that requires the utmost delicacy in scrutiny. The
14th amendment constrains to some extent what state court judges can do
through their orders, and
With all respect, I think Ed is confusing two different issues. Of course, a
judge that awards custody or enters an order *because one parent's religion
is "better" than the other's* is not supportable, and may have
constitutional implications. But that's not what we're talking about. We're
talking
In a situation where the child has *already* been exposed to differences in
outlook between the two parents (as in Ed's personal example or in Alan's),
then it seems highly unlikely that anyone could show psychological injury by
the child's continuing to be so exposed following a divorce.
Nobody h
But it is doing so (according to some) not on the basis of religion or
a religion per se, but rather because of some erstwhile other basis.
Does not intent matter here?
To me it seems to be both an endorsement and entanglement and also it
seems to stepping on free exercise.
But it is very
The judge is preferring one religion to another, which even Rehnquist
conceded is a violation of the First Amendment.
Judy Baer
Professor Judith A. Baer
Department of Political Science
Texas A&M University
4348 TAMU
College Station, TX 77843-4348
979/845-2246
fax979/847-8924
[EMAIL PROTECT
I have no clear answer to this problem - but I think part of what is
troubling to me about the potential scope of these constraints on
visitation orders is that they may make it difficult for the child to
have any meaningful relationship with one parent. A devout individual
may make his or her reli
Vance's proposed approach has the merit of being, at least facially,
viewpoint-neutral; and I take it that it would apply to all ideologies,
religious or otherwise. But let me probe whether it is indeed so.
Say, for instance, a child has been raised in a racist household.
After the bre
I could not agree more with Steve Jamar on this. The assumption that being
exposed to different ideas is a bad thing is simply wrong. I know this from
my own experience, having been raised by a Pentecostal and an atheist (who
are still married after many decades). A judge making a custody decision
Deciding to expose children to a variety of religious "options" is
inevitably preconditioned by a value judgment about the source of truth.
This is to say that placing the content of different religions on an equal
level, as the decision to expose children to them in this manner more or
less explic
A few responses in this thread suggest that the father converted to Wicca
after the divorce (or at least, after he got married). I haven't hunted down
the decisions here, so maybe it is in fact a part of the history here. I'm
thinking that it's more likely an assumption -- and an incorrect o
I think Steve's message illustrates exactly the point. What's in the best
interests of *the* child is a matter to be decided with reference to the
particular child in question and to his/her family's unique circumstances.
It is not a matter for ideology.
If a child is raised in a household in whic
I'm quite troubled by the idea that children are developmentally harmed by
exposure to more than one idea, religious or otherwise. And that a judge
can decide that only one religion is not harmful, and decide which one.
How about -- step parents -- that is confusing. Or remaining single. That
is
Maybe I wasn't clear. I wasn't suggesting how these cases should be decided,
but only attempting to highlight what I think to be the underlying issue or
problem. (Maybe my point was so obvious that it could have gone without
saying.)
I haven't studied this particular area with care, but I'm i
I'm a bit confused by Prof. Conkle's last sentence. The judges have been
explicitly ruling based on the "best interests" standard, which is the only
one they are permitted to apply. The question is not whether religion should
be exempt from the standard, but whether religion should be a favored or
Ordinarily, the government, including judges, properly has little or no say in
parental decisionmaking, lifestyle choices, etc., even if those parental
choices or activities might not (in the view of the government, including
judges) be in the best interests of the child. It seems to me that th
Shouldn't the issue be framed as whether the judge is granting greater
solicitude to religious aspects of the child's upbringing than to
non-religious ones of comparable influence? If the father had suddenly
developed an extreme interest in, say, raucous rock concerts (weird people,
drums, dancing)
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