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 about a considered judgment (presumably based on some psychological evidence) that without such an order the child will suffer psychological trauma. It's just not worth sacrificing the child to vindicate an ideological predisposition.
On Jan 24, 2008 1:00 PM, Ed Brayton <[EMAIL PROTECTED]> wrote: > 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 might well have looked at that and awarded custody to my mother to > avoid having me "confused" and that would have been very bad thing indeed > (there was no custody battle, we could live with whichever parent we chose > and could change our mind at any time, and I chose to live with my father, > who remarried to my Pentecostal stepmother). Not only was it not unhealthy > to be raised in that allegedly confusing environment, I think it was a key > to the development of traits I consider immensely valuable. > > > > And the real problem here, as always, is just how prone this kind of thing > is to bias toward religion. Imagine a circumstance where a couple has raised > a child without any religion or church attendance, but in the course of the > divorce one of them has become a religious convert and wants to take their > child to church with them. In case after case where the circumstances are > the opposite, where the child has gone to church during the marriage but one > parent is not religious and does not intend to take them to church, judges > will consider this a strong point in favor of the religious parent getting > custody on the grounds that it will continue his previous religious > upbringing. But in this situation, where the previous upbringing was not > religious, it is highly unlikely that a judge would consider this a point > against the religious parent. Having now looked up an enormous number of > these cases, it is obvious to me that the bias is nearly always in favor of > religion and the pretenses on which that is based are applied in a highly > selective manner to reach that outcome. > > > > Ed Brayton > > > > *From:* [EMAIL PROTECTED] [mailto: > [EMAIL PROTECTED] *On Behalf Of *Steven Jamar > *Sent:* Thursday, January 24, 2008 9:33 AM > > *To:* Law & Religion issues for Law Academics > *Subject:* Re: Shielding child whose mother is Catholic from father's > Wiccan lifestyle? > > > > 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 confusing. Or sexual orientation. Or one is an environmentalist > minimalist and the other a hummer -level consumerist. > > Would it be the same if one was a catholic and the other episcopalian? or > two sects of judaism? or two brands of evangelical christian? or mormon and > 7th day adventist? > > Barring a child from knowing a parent strikes me as not in the best > interest of the child. > > As with anything else, there are, of course, limits -- but merely > practicing a garden-variety of paganism or wiccan hardly seems dangerous to > the mental health of anyone. > > In our Unitarian Universalist congregation we explicitly teach the kids > about alternative views and beliefs and emphasize the individual and > collective search. I guess we are harming all of our kids and they should > be taken away from us by child protective services! > > No. This one goes too far. > > Steve > > On Jan 24, 2008 7:18 AM, Conkle, Daniel O. <[EMAIL PROTECTED]> wrote: > > 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 inclined to > agree with what Vance writes in most recent posting. > > > > Dan Conkle > > > ------------------------------ > > *From:* [EMAIL PROTECTED] [mailto: > [EMAIL PROTECTED] *On Behalf Of *Vance R. Koven > > *Sent:* Thursday, January 24, 2008 8:44 AM > > > *To:* Law & Religion issues for Law Academics > *Subject:* Re: Shielding child whose mother is Catholic from father's > Wiccan lifestyle? > > > > 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 > disfavored component of it. In the case Eugene brought up, it seems that the > judge was very explicitly evaluating the impact of the father's religious > conversion on the child's personality formation, which is quite appropriate. > That such evaluations can serve as a subterfuge for a judge's personal > predilections is certainly a danger that should be guarded against, but not > at the cost of removing religious factors entirely from the evaluation; they > should be part of the consideration, to the same extent as anything else > that might affect the welfare of the child. > > On Jan 24, 2008 8:19 AM, Conkle, Daniel O. <[EMAIL PROTECTED]> wrote: > > 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 the difficulty in the particular context of custody and visitation is > that the government, through judges, necessarily involves itself in these > matters. The question then is whether or to what extent the religious > aspects or elements of particular parental choices or activities should > render them immune from the "best interest" evaluation that otherwise would > be applicable in this specific corner of the law. > > > > I think Carl Schneider has written helpfully on these questions. > > > > Dan Conkle > ******************************************* > Daniel O. Conkle > Robert H. McKinney Professor of Law > Indiana University School of Law > Bloomington, Indiana 47405 > (812) 855-4331 > fax (812) 855-0555 > e-mail [EMAIL PROTECTED] > ******************************************* > > > ------------------------------ > > *From:* [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] > *On Behalf Of *Vance R. Koven > *Sent:* Thursday, January 24, 2008 7:53 AM > > > *To:* Law & Religion issues for Law Academics > > *Subject:* Re: Shielding child whose mother is Catholic from father's > Wiccan lifestyle? > > 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), contrary to the household ambiance when the parents were > married, would an order such as this seem so exceptional? > > I think in a lot of these cases, where post-divorce one parent undergoes a > lifestyle transformation (in either direction--harking back to the original > case of the father who became ultra-Orthodox or the mother who recanted > orthodoxy), the court is saving the parent from him- or herself by limiting > the child's exposure while the child could develop a strong aversion to the > wayward parent. Older children, of course, are well-versed in rolling their > eyeballs at their parents' idiosyncrasies (though I wonder if that too is a > feint). > > Vance > > On Jan 23, 2008 7:14 PM, Ed Brayton <[EMAIL PROTECTED]> wrote: > > The more I dig into cases similar to this the more I think that judges > should not be allowed to consider religion at all. It's just too ripe for > abuse, too open for a judge to be prejudiced against one party to the case > > because of their religion or (more commonly) their lack of it. I am > astonished at the fact that appeals courts have refused to overturn such > rulings even when they've been outrageously wrong. > > Ed Brayton > > > -----Original Message----- > From: [EMAIL PROTECTED] > [mailto: [EMAIL PROTECTED] On Behalf Of Volokh, Eugene > Sent: Wednesday, January 23, 2008 4:22 PM > To: Law & Religion issues for Law Academics > Subject: Shielding child whose mother is Catholic from father's Wiccan > lifestyle? > > A recent New York state appellate court decision upheld 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 Court could mandate, in the visitation order, "protections > against her exposure to any aspect of the lifestyle of the father and his > fiancée which could confuse the child's faith formation." > > I tracked down the trial court decision, and it turns out the > father's and his fiancée's "lifestyle" and "religious practices" were > Wiccan. The trial court concluded that the child (age 10 at the time of > the > appellate court's decision) "is too young to understand that different > lifestyles or religions are not necessarily worse than what she is > accustomed to; they are merely different. For her, at her age, different > equates to frightening. So when her father and her father's fiancé[e] > take > her to a bonfire to celebrate a Solstice, and she hears drums beating and > observes people dancing, she becomes upset and scared." There was no > further discussion in the trial court order of any more serious harm to > the > child, though of course there's always the change that some evidence was > introduced at trial but wasn't relied on in the order. > > Given this, should it be permissible for a court to protect the > child from becoming "upset and scared" by ordering that a parent not > "expos[e the child] to any aspect of [the parent's] lifestyle ... which > could confuse the child's faith formation"? > > 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. > > > > > -- > 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. > > > > > -- > 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. > > > > > -- > Prof. Steven Jamar > Howard University School 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. > -- 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.
