I take it that any attempt to force someone to marry at 13
would be a serious felony in all states; indeed, the column doesn't allege
anything like that, and the one Satmar woman whose age was mentioned in the
column (the author) was 19 when she married.
Rather, the question raised by any proposed legal weight against stability in
"an extremist religion" - as applied to the NJ.com column -- is what the legal
system should do when there's a culture that teaches children viewpoints about
legal behavior that the majority sees as harmful to the young adults whom the
children will become, and then reinforces this teaching through social pressure
on adults. (There's a related question that arises when the culture teaches
viewpoints about the propriety of possible illegal behavior in the future, such
as of civil disobedience by adults, or violent jihad as adults.) Should the
legal system conclude that such teachings are harmful to the child, and thus
consider the viewpoints of parental teachings in custody decisions - or even
(if this is really analogous to education and health) constrain parental
teachings within intact families? I don't think that analogies to forced
marriages at age 13 are particularly illuminating as to that question.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Friday, April 20, 2012 1:03 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Mothers leaving ultra-religious groups, and religious upbringing
as a factor in custody disputes
The alternative is to focus on what is in the best interests of the child,
e.g., education, health. Not being forced to
get married at 13 and have children...
Marci
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<mailto:folt...@ajc.org>
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
hamilto...@aol.com<mailto:hamilto...@aol.com>
-----Original Message-----
From: Richard Foltin <folt...@ajc.org<mailto:folt...@ajc.org>>
To: Law & Religion issues for Law Academics
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Sent: Fri, Apr 20, 2012 8:32 am
Subject: RE: Mothers leaving ultra-religious groups, and religious upbringing
as a factor in custody disputes
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<mailto:folt...@ajc.org>
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From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
[mailto: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<mailto: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
>
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