[The Volokh Conspiracy] Parents' free speech and the best interests of the child:

[Eugene Volokh]

The Washington Times runs this story (thanks to Michael Williams for the pointer): A Christian mother is appealing a judge's decision that prohibits her from teaching her daughter that homosexuality is wrong. Cheryl Clark, who left a lesbian relationship in 2000 after converting to Christianity, was ordered by Denver County Circuit Judge John Coughlin to "make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic." . . . Her former lover, Elsey McLeod, was awarded joint custody of the child, an 8-year-old girl who is Dr. Clark's daughter by adoption. . . . Mathew Staver, president of Liberty Counsel, a public-interest law firm based in Orlando, Fla. . . . [said] the order effectively prevents the mother from practicing her religion in her daughter's presence. "The mother is a Christian, and that's a major part of her lifestyle," he said. "She would be prohibited from reading her daughter Romans 1 or anything in the Bible on sexual fidelity in marriage, going to Bible study, or listening to a sermon on marriage or fidelity." . . . Judge Coughlin, who issued his ruling April 28, did award Dr. Clark sole responsibility for the girl in the area of religion, although with the caveat about exposing the child to anything "homophobic." . . . Mr. Staver pointed out that the judge gave no similar orders to Miss McLeod regarding remarks or teaching about Christianity or Christians. "It's a real one-way street on this," he said. In his order, the judge said there was "a great deal of strife" between the two women. Dr. Clark had argued that Miss McLeod should not have joint custody because she was not interested in the adoption while it was taking place and that it was never their intention that she would act as a parent. . . . The girl spent more than seven years as part of Miss McLeod's life, however, prompting Judge Coughlin to rule it would be in the best interest of the child for joint parenting to continue. If his ruling stands, it could affect Christian parents across the nation, said Mr. Staver. "These things progressively build on one another, so we're trying to stop this before it goes any further."      This is a troubling story, and it supports the arguments of some that the pursuit of gay rights is now sometimes suppressing the rights of others -- free speech rights, religious rights, associational rights, and so on. I like to think that it's possible to prevent oppression of homosexuals while at the same time preventing oppression of those who oppose homosexuality, but it's true that there's some oppression happening of the latter, just as in the past -- and in some measure in the present -- there's been tremendous oppression of the former.      But the story is also, I think, a bit more complex. I haven't yet gotten a copy of the court order (I asked the library for it this morning) but I suspect that what's happening here is that the court is applying the best interests of the child standard. In child custody decisions, the official rule is generally that everything -- who gets custody, how much visitation rights there are, what are the conditions on custody and visitation -- is supposed to be decided according to the best interests of the child. But what if a court believes that it's against the best interests of the child for a parent to say certain things to the child? Or expose the child to a certain religion? And what if this belief on the judge's part is buttressed by the concern that certain statements might endanger the child's relationship to the other parent?      If a judge honestly applies the best interests of the child standard, then the answer might well be that it's in the child's best interests for the parents' speech and religious practice around the child be restricted. Here's a thought experiment: Imagine that you were dying, and you were trying to decide whom to select as your child's custodian. Presumably your main concern would be the child's best interest. If you have two people from whom you can choose, wouldn't you consider what each person is likely to tell the child as part of your evaluation of who the best parent would be? And if you had the power to somehow order the custodian not to say certain things to the child as a condition of giving the person custody (assume your child is much in demand, so such a condition would stick), and if you found that the best prospective parent was generally very good except for some belief that you thought it would be really bad for the child to learn, wouldn't you consider using that power (unless you thought that such an order would be counterproductive in other ways)?      Well, the best interests of the child standard more or less puts the judge in that same position. It's true that the judge in this case made a subjective decision about what's best for the child that others might not make. But that's the nature of the "best interests" standard.      The key difference between my hypothetical and the normal judicial custody decision, of course, is that the judicial decision involves an agent of the state making a decision about someone else's child -- and I think it's a tremendously important difference. But what this means, I think, is that sometimes the parents' constitutional rights should prevent a judge from rendering a decision that he thinks is in the child's best interests. The judge might well have honestly made a decision that he thought was in the child's best interest. In fact, the decision may indeed have been in the child's best interest, since it might have prevented one parent from condemning the other as sinful to the child, something that may well be bad for the child (I stress the "may" because of course that too is quite a subjective decision). It's just that the "best interests" standard may well be inadequate here.      Unfortunately, it's not particularly clear what the best alternative standard would be; one possibility might be that such speech-restrictive orders can't be issued unless there's some showing that the speech is psychologically harming the child, or seems highly likely to do so imminently. Some courts have used this standard in deciding whether to restrict a parent's religious teaching to a child in cases where the parents want to teach the child different religions: A parent is free to teach whatever religion he or she pleases while the child is with that parent, even if the religion is inconsistent with that taught by the other parent, so long as the inconsistency doesn't seem to be harming the child.      Other courts, on the other hand, have theorized that it's generally not in the child's best interests to be taught two conflicting religions, and thus give the custodial parent (when there's only one) full control over the religious upbringing, and block the other parent from teaching contrary religious views. (Note that in this case, the judge seems to have given Clark the authority to oversee the child's religious upbringing, and imposed the "no anti-homosexuality teachings" condition as a compensating benefit to McLeod, who might have reasonably feared that Clark's religious teachings would interfere with the child's relationship with McLeod.) But even the "psychological harm" standard has flaws: even it can be extremely vague (what's "psychological harm"), and can thus be applied quite subjectively, and by definition it also does allow some damage to the child's best interests, which some people might think is too high a price to pay to protect the parents' free speech rights.      And of course this issue doesn't just come up when anti-homosexual speech is involved. I've collected cases on this subject for over a decade; I've found cases where judges either (1) make child custody decisions based on a parent's likely future speech, (2) order a parent not to say certain things to a child, or (3) order a parent to say certain things to a child -- which, I think, all implicate the First Amendment -- where the speech that was being disfavored was: Pro-Nazi speech (in the 1940s). Pro-Communist speech (in the 1950s). Advocacy of atheism (from the English child custody case involving the poet Percy Bysshe Shelley in the early 1800s to just a few decades ago). Advocacy of polygamism (from the 1950s to a decision just a year or so ago, in Pennsylvania of all places). Advocacy of the propriety of homosexuality (in the 1970s). Advocacy of racism, both black racism and white racism (from the 1970s to the present). Teaching of religious beliefs that conflict with those of the other parent. Condemnation of the other parent, either on personal grounds or religious grounds. A mother's saying (accurately though likely maliciously) that the father wasn't really the child's biological parent.      Again, in all these cases the judges probably sincerely -- and sometimes probably correctly -- thought that it would be in the child's best interest not to be taught or told certain things, or to be taught or told other things. The question is when the parent's free speech rights (and sometimes religious freedom rights) should prevail over the best interests of the child standard. So the Colorado order is the latest skirmish both in the battles over the rights of homosexuals and the rights of those who disapprove of homosexuality, and in the legal battles over the best interests of the child standard and parental rights more broadly.      One final item: Throughout the post, I've talked about the two parents, but McLeod is neither the biological nor the adoptive parent. Perhaps that alone is reason to grant full custody to Clark, with no rights on McLeod's part; and if that's so, then the argument that it's harmful for the child to be taught antihomosexual views becomes weaker (though it doesn't vanish entirely). That's mostly a question of Colorado state child custody law, though there might also be a federal constitutional claim that Clark's parental rights prevent a state from giving similar rights to anyone but a biological or adoptive parent (see Troxel v. Granville). I don't know enough about that particular issue to opine on it; I felt comfortable providing the above analysis because I have followed closely the First Amendment issue where the parties are definitely legal parents, and because this question may well arise in any event in future cases, where the other homosexual partner had indeed adopted the child.      But I should also say that I don't feel particularly bad for Clark (or for McLeod) on that parental rights score: She chose to raise the child for seven years with McLeod (just as McLeod chose to raise the child knowing she had no firmly established legal rights). I suspect that the child has something very close to a child-parent psychological relationship with both Clark and McLeod.      While I can't speak to what exactly Colorado law has to say about that (and while the federal constitutional parental rights rules here are very murky), I can certainly see why a judge -- if given discretion by state law -- might very reasonably conclude that it's in the child's best interest for the relationship with McLeod to continue. If Clark now has the legal or constitutional right to sever that relationship, that to me is a bug (at least in this instance), not a feature, because here I do think that the best interests of the child should make the difference. (Query whether that means the best interests of the child should also be completely dispositive as to the parents' speech rights -- I think the answer is probably no, but as you can tell I can't say I'm completely sure.) -- Posted by Eugene Volokh to The Volokh Conspiracy at 11/5/2003 09:23:07 AM Powered by Blogger Pro