Posted by Eugene Volokh:
Appalling, if Accurate:
http://volokh.com/archives/archive_2005_05_22-2005_05_28.shtml#1117124986
[1]The Indianapolis Star reports:
An Indianapolis father is appealing a Marion County judge's unusual
order that prohibits him and his ex-wife from exposing their child
to "non-mainstream religious beliefs and rituals."
The parents practice Wicca, a contemporary pagan religion that
emphasizes a balance in nature and reverence for the earth.
Cale J. Bradford, chief judge of the Marion Superior Court, kept
the unusual provision in the couple's divorce decree last year over
their fierce objections, court records show. The order does not
define a mainstream religion. . . .
"There is a discrepancy between Ms. Jones and Mr. Jones' lifestyle
and the belief system adhered to by the parochial school. . . . Ms.
Jones and Mr. Jones display little insight into the confusion these
divergent belief systems will have upon (the boy) as he ages," the
bureau said in its report. . . .
If the order is as reported, then it's a blatant violation of the Free
Speech Clause (because it's a speech restriction), the Free Exercise
Clause (because it singles out religion for special restriction), the
Establishment Clause (because it prefers some religions over others,
and requires the court to decide what's a "mainstream" religion), and
likely the Equal Protection Clause (because the order discriminates
based on religion) and the Due Process Clause (because of the order's
vagueness) as well.
Courts sometimes do issue these sorts of orders when there's a battle
between the parents; as [2]I argue in this article, I think even those
orders are generally unconstitutional, and especially when it comes to
religious teachings, most courts have concluded that they can't be
issued unless there's some evidence of likely harm to the children
(rather than just abstract speculation, as seems to be the case here).
But orders restricting what both parents can say to the child, issued
on the court's own initiative and without either parent's support, are
nearly unheard of, and would seem to be even harder to justify
constitutionally.
Finally, the "avoid confusion to the child" argument is bad enough --
if accepted, then presumably it would mean that parents who are
sending their child to a very liberal school (public or private) could
be ordered not to teach conservative beliefs that are in tension with
the liberal school's views on environmentalism, evolution, and the
like. But even if restrictions genuinely and impartially aimed at
avoiding confusion to the child were permissible, it's hard to see
this order as applying such an evenhanded standard: Judaism and other
"mainstream religions" would be quite different from what's taught at
the parochial school, but they're allowed; only "non-mainstream
religions" are forbidden.
References
1.
http://www.indystar.com/apps/pbcs.dll/article?AID=/20050526/NEWS01/505260481
2. http://www1.law.ucla.edu/~volokh/custody.pdf
_______________________________________________
Volokh mailing list
[email protected]
http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
