Re: Free speech, teaching of jihad, parental rights, and children's best interests
I have to take issue with one statement in your op-ed, Eugene: you say, ...children are immature and less able to resist their parents' ideological excesses. You're probably not far enough along in your parenting, but trust me, children have remarkable defenses (and offenses) of their own. More seriously, I'm troubled also by the lack of constitutional restraint exercised by family law judges in these cases. Best interests of the child as a legal standard probably would, on close analysis, fail all the vagueness tests. Where exposure to unconventional views are not producing *observable* psychological damage to the children, the state shouldn't bother --or be allowed--to impose a more conventional lifestyle on divorced families than it does (which is to say, barely at all) on intact ones. In fact, the existence of a disagreement between the parents on philosophical, religious and similar value points (what about political affiliation?) should do more to insulate children from undue influence than in, say, two-jihadist households. Vance On 2/7/07, Volokh, Eugene [EMAIL PROTECTED] wrote: I ran across a fascinating -- and unpublished and computer-inaccessible -- new parent-child speech decision; I've posted the text at http://volokh.com/archives/archive_2007_02_04-2007_02_10.shtml#117074166 6, and written it up in an L.A. Times op-ed available at http://www.latimes.com/news/opinion/la-oe-volokh6feb06,0,7797695.story?c oll=la-opinion-rightrail, but here are some excerpts from the trial court decision (which was generally upheld on appeal, except that the visitation was changed to supervised visitation, starting after the father finishes his federal probation): The history of the relationship between the petitioner and respondent, and their conduct and beliefs, prior to their ultimate separation and divorce, may be considered extreme or non-conventional, especially in today's, post 9-11 world. The petitioner has not seen his children since 1997, although he has maintained consistent contact with the children, through cards and letters and speaks with them regularly by telephone. It is uncontroverted that the petitioner is a repeat felony offender, having been convicted of, among other things, making terrorist threats and weapons possession. In fact, both the petitioner and respondent testified that they amassed a large quantity of weapons during their marriage, which in turn, resulted in the petitioner's most recent felony conviction for weapons possession. The petitioner was incarcerated at the time of the parties' divorce and it is uncontroverted that his incarceration and current alleged inability to travel, is the direct result of his criminal conduct. During their marriage, both parties followed a quasi Muslim philosophy, including the naming of the two children born during their marriage, Mujahid Daniel and Mujahid David[.] ... The respondent contends that due to the petitioner's violent felony conviction record, the domestic violence exhibited during the course of their marriage, his extremist views regarding religion, including his belief regarding Jihad; and the letters written to the children while he was incarcerated, lecturing about religion and reminding the children that their names are MUJAHID, that visitation should be denied [T]he issue before the Court is what visitation would be in the children's best interest [T]he children shall have visitation with their father The petitioner/father shall not discuss any issues pertaining to his religion or philosophy with respect to same, during any unsupervised visitation time with the children. Any thoughts on this? 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. -- Vance R. Koven Boston, MA USA [EMAIL PROTECTED] ___ 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.
RE: Question from a reporter
Unsure whether a current instance is responsive, but here it is, from the Feb. 2007 issue of Episcopal Life, p. 20: The Executive Board of the Episcopal Diocese of Virginia on Jan. 18 authorized Bishop Peter Lee to 'take such steps as may be necessary to recover or secure such real and personal property' of 11 congregations where a majority of the members and leaders have left the Episcopal Church. There have been no immediate actions. Daniel G. Gibbens Regents' Professor of Law Emeritus University of Oklahoma From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Wednesday, February 07, 2007 7:43 PM To: religionlaw@lists.ucla.edu Subject: Re: Question from a reporter This is very helpful. Of course, this is only reported cases A more complete data set for the years it covers is the Religious Freedom Reporter, which runs from 1981 I think to the late 90s (or maybe the very early 2000s). Finding a library with a complete set can sometimes be a challenge. They had a network of lawyers sending them cases they knew about, so they pick up a fair number of trial court cases that never got reported. Still not a complete population I'm sure. Quoting Hassler, Jeffrey (student) [EMAIL PROTECTED]: I'm just a law student, but I've been working on a student comment on civil court resolution of church property disputes, and there are at least some figures out there about church property cases in courts. I've pasted below a paragraph from my article discussing some informal research on the subject done by Prof. Greenawalt: Jeff Church property disputes will never be the bread and butter of the civil courts, but that doesn't mean controversies don't arise on a regular basis. In 1998, Professor Greenawalt noted that courts have heard an average of about 119 church property cases each decade since 1948.[1] outbind://105/#_ftn1 https://web.mail.umich.edu/horde/services/go.php?url=outbind%3A%2F%2F10 5%2F%23_ftn1The numbers reflect slight increases during periods of particular doctrinal disputation. In the decade since Professor Greenawalt's tabulation, there were approximately 91 church property cases heard in the U.S.;[2] outbind://105/#_ftn2 https://web.mail.umich.edu/horde/services/go.php?url=outbind%3A%2F%2F10 5%2F%23_ftn2 this figure is consistent with earlier trends and the pattern indicates the possibility that the number is rising again, perhaps in response to the increase in intradenominational strife described above. [1] outbind://105/#_ftnref1 https://web.mail.umich.edu/horde/services/go.php?url=outbind%3A%2F%2F10 5%2F%23_ftnref1 Kent Greenawalt, Hands Off! Civil Court Involvement in Conflicts over Religious Property, 98 Colum. L. Rev. 1843, 1844 n.1. (1998). Professor Greenawalt's findings are as follows: The following data show the approximate number of reported cases in both federal and state courts over a period of fifty years (amassed through a Westlaw search). The numbers reflect each time a different court had to address the issue of church property; thus, appeals are counted separately. From 1948 to 1957, there were approximately 166 cases; from 1958-1967, roughly 109; from 1968-1977, 115 cases; from 1978-1987, 123 cases; from 1988-1997, 81. (This search was done in Oct. 1998, in the Allcases database). Id. [2] outbind://105/#_ftnref2 https://web.mail.umich.edu/horde/services/go.php?url=outbind%3A%2F%2F10 5%2F%23_ftnref2 This search was conducted in January 2007, using the criteria discussed in the previous note. It reflects only nine years rather than a full decade, and thus will almost certainly under-represent the actual figure for the ten years following Professor Greenawalt's search. --- ___ Jeff Hassler Pepperdine School of Law 24255 Pacific Coast Hwy #0028 Malibu, CA 90263-0028 310.506.3920 -Original Message- From: Volokh, Eugene [EMAIL PROTECTED] Date: Feb 7, 2007 6:27 PM Subject: Question from a reporter To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu mailto:religionlaw@lists.ucla.edu A reporter asked me: Is it my imagination, or are denominations and members increasingly turning to the courts to settle disputes. [I've seen] current disputes within the Catholic, Episcopal, Missouri Lutheran faiths -- and there are doubtless more that I don't know about. There are issues of personnel and property. Does anyone track such a thing, or has the issue been studied? I didn't have an answer, but offered to ask on-list. Any thoughts on this? Thanks, Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe,
Question from a reporter
A comment from Marc Stern, who is having access problems with the list. His view sounds right to me. From: Marc Stern Sent: Thursday, February 08, 2007 9:57 AM To: 'Law Religion issues for Law Academics' Subject: RE: Question from a reporter The number if churches torn apart over doctrinal issues-mostly but not exclusively abortion and gay rights- is on the upswing and so it is not surprising that there are more church property disputes. Whatever increase there is in litigation is probably more due to the number of doctrinal disputes than anything in the case law. The last upsurge in cases in the late 70's came about as a result of the move to ordain women. Marc Stern Could you pass this on to the entire list? For some reason, I am denied access. Marc From: Marc Stern Sent: Thursday, February 08, 2007 9:57 AM To: 'Law Religion issues for Law Academics' Subject: RE: Question from a reporter The number if churches torn apart over doctrinal issues-mostly but not exclusively abortion and gay rights- is on the upswing and so it is not surprising that there are more church property disputes. Whatever increase there is in litigation is probably more due to the number of doctrinal disputes than anything in the case law. The last upsurge in cases in the late 70s came about as a result of the move to ordain women. Marc Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Wednesday, February 07, 2007 7:06 PM To: religionlaw@lists.ucla.edu Subject: Re: Question from a reporter I don't know. But it would not be surprising. The law that has developed since Jones v. Wolf encourages lawyers and their clients to take a shot. Quoting Volokh, Eugene [EMAIL PROTECTED]: A reporter asked me: Is it my imagination, or are denominations and members increasingly turning to the courts to settle disputes. [I've seen] current disputes within the Catholic, Episcopal, Missouri Lutheran faiths -- and there are doubtless more that I don't know about. There are issues of personnel and property. Does anyone track such a thing, or has the issue been studied? I didn't have an answer, but offered to ask on-list. Any thoughts on this? Thanks, 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. Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713 ___ 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.
RE: Question from a reporter
A non-numerical, ironic aspect of this: The breakaway congregations, now and in the earlier rounds, have tended to be conservatives unhappy with liberal denominational moves. If they succeed in court against the larger organizations to whose decisions they object, they tend to make law such as Jones v. Wolf that is harmful to the protection of religious organizational autonomy against state (in this case court) interference. Yet conservative faiths also tend to have the most conflicts between their organizational autonomy and government regulation in other contexts, such as suits by clergy, other employees, or members. There are distinctions between church property and other contexts, especially ministerial disputes, and Jones v. Wolf so far has had little effect on church autonomy in ministerial cases. But successes by conservative Christians in the property cases hurts the freedom of conservative Christians in other cases, where Jones v. Wolf has had more effect. Tom Berg, University of St. Thomas School of Law (Minnesota) __ A comment from Marc Stern, who is having access problems with the list. His view sounds right to me. From: Marc Stern Sent: Thursday, February 08, 2007 9:57 AM To: 'Law Religion issues for Law Academics' Subject: RE: Question from a reporter The number if churches torn apart over doctrinal issues-mostly but not exclusively abortion and gay rights- is on the upswing and so it is not surprising that there are more church property disputes. Whatever increase there is in litigation is probably more due to the number of doctrinal disputes than anything in the case law. The last upsurge in cases in the late 70's came about as a result of the move to ordain women. Marc Stern application/ms-tnef___ 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.
RE: Free speech, teaching of jihad, parental rights, and children's best interests
I tried to note this in my NYU L. Rev. article, in fact with a quote (taken somewhat out of context) from Edmund Burke: Of course, we shouldn't overstate the practical scope of parental power, especially over older children. 'Despotism itself is obliged to truck and huckster. The Sultan gets such obedience as he can.' But this legally enforced parental power does exist. It makes the parent-child relationship different from the relationship that speakers usually have with listeners. And it makes legal intervention to prevent speech that harms the listeners more appealing. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Vance R. Koven Sent: Thursday, February 08, 2007 4:27 AM To: Law Religion issues for Law Academics Subject: Re: Free speech, teaching of jihad, parental rights,and children's best interests I have to take issue with one statement in your op-ed, Eugene: you say, ...children are immature and less able to resist their parents' ideological excesses. You're probably not far enough along in your parenting, but trust me, children have remarkable defenses (and offenses) of their own. More seriously, I'm troubled also by the lack of constitutional restraint exercised by family law judges in these cases. Best interests of the child as a legal standard probably would, on close analysis, fail all the vagueness tests. Where exposure to unconventional views are not producing *observable* psychological damage to the children, the state shouldn't bother --or be allowed--to impose a more conventional lifestyle on divorced families than it does (which is to say, barely at all) on intact ones. In fact, the existence of a disagreement between the parents on philosophical, religious and similar value points (what about political affiliation?) should do more to insulate children from undue influence than in, say, two-jihadist households. Vance On 2/7/07, Volokh, Eugene [EMAIL PROTECTED] wrote: I ran across a fascinating -- and unpublished and computer-inaccessible -- new parent-child speech decision; I've posted the text at http://volokh.com/archives/archive_2007_02_04-2007_02_10.shtml#117074166 6, and written it up in an L.A. Times op-ed available at http://www.latimes.com/news/opinion/la-oe-volokh6feb06,0,7797695.story?c oll=la-opinion-rightrail, but here are some excerpts from the trial court decision (which was generally upheld on appeal, except that the visitation was changed to supervised visitation, starting after the father finishes his federal probation): The history of the relationship between the petitioner and respondent, and their conduct and beliefs, prior to their ultimate separation and divorce, may be considered extreme or non-conventional, especially in today's, post 9-11 world. The petitioner has not seen his children since 1997, although he has maintained consistent contact with the children, through cards and letters and speaks with them regularly by telephone. It is uncontroverted that the petitioner is a repeat felony offender, having been convicted of, among other things, making terrorist threats and weapons possession. In fact, both the petitioner and respondent testified that they amassed a large quantity of weapons during their marriage, which in turn, resulted in the petitioner's most recent felony conviction for weapons possession. The petitioner was incarcerated at the time of the parties' divorce and it is uncontroverted that his incarceration and current alleged inability to travel, is the direct result of his criminal conduct. During their marriage, both parties followed a quasi Muslim philosophy, including the naming of the two children born during their marriage, Mujahid Daniel and Mujahid David[.] ... The respondent contends that due to the petitioner's violent felony conviction record, the domestic violence exhibited during the course of their marriage, his extremist views regarding religion, including his belief regarding Jihad; and the letters written to the children while he was incarcerated, lecturing about religion and reminding the children that their names are MUJAHID, that visitation should be denied
Re: Free speech, teaching of jihad, parental rights, and children's best interests
I agree that the legal scope of parental authority is far greater than its practical scope (rather like the obligations of contract). Your original point, I take it, was that judicial usurpation of that authority under color of a divorce decree should for those very reasons be subject to greater scrutiny and a more bounded standard than best interests of the child has so far been held to be. I agree with that as well, in principle. Since divorce decrees are generally reviewed on appeal based only on an abuse of discretion (somebody more familiar with family law correct me if I'm wrong), how does the Constitution intrude itself into the exercise of a court's discretion? Due process in these situations presumably would only require satisfying a rational basis test (unlike the cases you cite involving racial matters). It would take a very bold appellate court (give Massachusetts a try) to rule that imposing a bygone generation's view of domestic tranquility was not rationally related to the best interests of the child, as opposed to being the *better* view. I even suspect that a state with a RFRA would allow best interest of the child determinations to trump a parent's religious freedom claims (I seem to recall that some already have done). Bottom line: if you want to raise a jihadist, be very nice to your spouse. Vance On 2/8/07, Volokh, Eugene [EMAIL PROTECTED] wrote: I tried to note this in my NYU L. Rev. article, in fact with a quote (taken somewhat out of context) from Edmund Burke: Of course, we shouldn't overstate the practical scope of parental power, especially over older children. 'Despotism itself is obliged to truck and huckster. The Sultan gets such obedience as he can.' But this legally enforced parental power does exist. It makes the parent-child relationship different from the relationship that speakers usually have with listeners. And it makes legal intervention to prevent speech that harms the listeners more appealing. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Vance R. Koven Sent: Thursday, February 08, 2007 4:27 AM To: Law Religion issues for Law Academics Subject: Re: Free speech, teaching of jihad, parental rights,and children's best interests I have to take issue with one statement in your op-ed, Eugene: you say, ...children are immature and less able to resist their parents' ideological excesses. You're probably not far enough along in your parenting, but trust me, children have remarkable defenses (and offenses) of their own. More seriously, I'm troubled also by the lack of constitutional restraint exercised by family law judges in these cases. Best interests of the child as a legal standard probably would, on close analysis, fail all the vagueness tests. Where exposure to unconventional views are not producing *observable* psychological damage to the children, the state shouldn't bother --or be allowed--to impose a more conventional lifestyle on divorced families than it does (which is to say, barely at all) on intact ones. In fact, the existence of a disagreement between the parents on philosophical, religious and similar value points (what about political affiliation?) should do more to insulate children from undue influence than in, say, two-jihadist households. Vance On 2/7/07, Volokh, Eugene [EMAIL PROTECTED] wrote: I ran across a fascinating -- and unpublished and computer-inaccessible -- new parent-child speech decision; I've posted the text at http://volokh.com/archives/archive_2007_02_04-2007_02_10.shtml#117074166 6, and written it up in an L.A. Times op-ed available at http://www.latimes.com/news/opinion/la-oe-volokh6feb06,0,7797695.story?c oll=la-opinion-rightrail, but here are some excerpts from the trial court decision (which was generally upheld on appeal, except that the visitation was changed to supervised visitation, starting after the father finishes his federal probation): The history of the relationship between the petitioner and respondent, and their conduct and beliefs, prior to their ultimate separation and divorce, may be considered extreme or non-conventional, especially in today's, post 9-11 world. The petitioner has not seen his children since 1997, although he has maintained consistent contact with the children, through cards and letters and speaks with them regularly by telephone. It is uncontroverted that the petitioner is a repeat felony offender, having been convicted of, among other things, making terrorist threats and weapons possession. In fact, both the petitioner and
AlterNet website
On the recommendation of a friend, I just read an short article on this website entitled The Rise of Christian Fascism and Its Threat to American Democracy posted today. I'm curious about any views on the credibility of this website, or for that matter, on this particular article. Dan Gibbens University of Oklahoma College of Law ___ 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.
