By Eugene Volokh
EUGENE VOLOKH (volokh.com) is a professor of constitutional law at UCLA.
February 6, 2007
Daniel, now out on parole, wants to see his children. Allison objects, based on Daniel's "violent felony conviction record domestic violence extremist views regarding religion, including jihad; and the letters written to the children while he was incarcerated, lecturing about religion and reminding the children that their names are Mujahid." ("Mujahid" means a soldier fighting for Islam; "mujahedin" is the plural.)
In December, a New York appellate court held that Daniel should be allowed supervised visitation after his parole expires this summer. But the court also upheld, in the name of "the best interest of the children," the trial court's order that Daniel not discuss with the children "any issues pertaining to his religion."
Now, it is surely in the children's best interests not to be taught militant jihad. But the trial court didn't apply a jihadists-only rule, or a "convicted felons lose their parent-child speech rights" rule. Rather, it applied the broad and subjective "best interests of the child" standard. Many parents might wonder how their own philosophies might be evaluated by family judges under that standard.
In fact, a wide range of parental speech has been prohibited by family courts, all in the name of the child's supposed best interests. One parent was enjoined from making any racial slurs in a child's presence. Another parent whose ex was a lesbian was ordered 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." A different court barred a father from taking his children to "any social, religious or educational functions sponsored by or which otherwise promote homosexual lifestyle."
In one case, two divorcing Wiccan parents were ordered to "shelter" their son from "involvement and observation of non-mainstream religious beliefs and rituals." In another, a court ordered each parent to teach children "the need for religious tolerance and not permit any third party to attempt to teach them otherwise."
Even more courts have made custody decisions based partly on parent-child speech and religious upbringing. Courts in some states, such as Michigan, routinely favor the parent who takes the children to church more often. Other courts have denied parents custody based partly on the parents teaching their children the propriety of racism, polygamy or homosexuality.
If the rule is really "children's best interests above all," these results may make sense. Say a dying friend asked you to choose a custodian for his children. Wouldn't you reject candidates who would teach the children harmful ideas, whether racist, pro-terrorist or, depending on your views, pro- or anti-homosexuality?
But the question, which few courts have grappled with, is whether judges, using government power, are allowed under the 1st Amendment to make such decisions. A family court judge is a government official, bound by the Constitution. Orders mandating or forbidding certain kinds of speech pose serious 1st Amendment problems. So does allocating civil rights, such as the right to spend time with one's child, based on a person's speech.
But does the 1st Amendment mean something different when it comes to parent-child speech, especially when the parent is divorced? On the one hand, children are immature and less able to resist their parents' ideological excesses. There may be special reasons to protect children from parental teachings that harm their best interests.
On the other hand, parental self-expression rights are especially important. Many people would trade all their free-speech rights for the right to teach their own children. And government power to constrain how parents teach their own children is dangerous: Restricting the spread of ideas from parent to child can help today's majority, or today's elite, entrench its views for future generations. Also, the power to suppress parents' speech may not stay limited to broken families but might spread to intact families too.
I think the 1st Amendment should impose some constraint here. The Supreme Court has recognized that the equal protection clause bars courts from considering a parent's interracial remarriage in the "best interests" analysis, even when the remarriage might have led to social trouble for the child. Some state courts have likewise barred judicial consideration of parents' religious teachings, at least unless imminent physical or psychological harm to the child is shown.
The same should be done for parents' ideological teachings. Such "harm" standards are themselves often subjective, but at least they are better than letting judges routinely decide when a parent's ideological teachings are against a child's best interests.
All this having been said, of course situations like Mujahid Daniel's and Mujahid David's remain troubling. Should children be exposed to a jihadist philosophy that may lead them into crime, violence and war against our nation — which could be fatal for them as well as bad for us? Even if their father hadn't been a felon, might his teachings still have been so dangerous that we should protect his children from them?
However we answer these questions, we should remember that the rules courts make don't just apply to jihadists. Any parent whose views may be seen by some as against the child's best interests — because the parent is atheist, intolerant, pro-gay, anti-gay or whatever else — could find a judge curtailing his parental rights and his speech rights.
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