Just finished up a law review-ready draft -- I'll be sending it out shortly -- and posted it here. Here's the Introduction, without the footnotes (which are available in the PDF file I linked to):
Percy Bysshe Shelley was a poet and a cad. He married his wife, Harriet Westbrooke, when she was 16, but left her for Mary Wollstonecraft Godwin three years later. When he left, his and Harriet’s daughter was a year old, and Harriet was pregnant with their son.
Two years later, Harriet committed suicide. When Shelley decided to raise the children himself, Harriet’s parents refused to turn them over, and Shelley went to court. Though fathers had nearly absolute rights under then-existing English law, Shelley became one of the first fathers in English history to lose custody of his children.
Percy Shelley was also an avowed atheist -- and the Court of Chancery mostly relied on this, not on his infidelity or unreliability. Shelley shouldn’t be put in charge of the children’s education, the Lord Chancellor reasoned: Shelley endorsed atheism and sexual freedom, and would teach his children to do the same. Twenty years later, Justice Joseph Story likewise wrote that a father could lose his rights for “atheistical and irreligious principles.”
Shelley’s case may look like something out of another time and place. That time and place, it turns out, is 2001 Mississippi, where the state supreme court upheld an order giving a mother custody partly because she took the child to church more often than the father did, thus providing a better “future religious example.” Presumably an outright atheist would be at even more of a disadvantage in a Mississippi child custody dispute.
And if he wasn’t denied custody, he might be ordered to take the child to church each week, as a Mississippi court ordered in 2000, reasoning that “it is certainly to the best interests of [the child] to receive regular and systematic spiritual training.” Arkansas, Louisiana, Michigan, Minnesota, Pennsylvania, South Carolina, South Dakota, and Texas courts also authorize judges to favor more religious parents over the less religious or the irreligious; there are similar cases in 1970s Iowa, Nebraska, North Carolina, and New York.
Likewise, through the past decades, parents have had their rights limited or denied partly based on their racist views, advocacy of Communism, Nazi sympathies, advocacy of pacifism and disrespect for the flag, advocacy of polygamy, defense of the propriety of homosexuality, defense of adultery, advocacy of (or inadequate condemnation of) nonmarital sex, fundamentalism, teaching of religions that make it hard for children to “fit in the western way of life in this society” or that are “non-mainstream,” and teaching of religious intolerance.
The Pennsylvania Supreme Court is now reviewing the polygamy advocacy case, framing the question as “To what extent can the courts limit parents from advocating religious beliefs that, if acted upon, would constitute criminal conduct?” -- a question that could equally apply to parents’ teaching their children the propriety of refusing to fight in unjust wars, the propriety of civil disobedience, and the like. All this is done under the rubric of the “best interests of the child” standard, the normal rule applied in custody disputes between two parents, which leaves family court judges ample room to consider a parent’s ideology.
Courts have also ordered parents not to swear in front of their children, and to install Internet filters. They have also considered, as a factor in the custody decision, parents’ swearing, exposing their children to R-rated movies, exposing their children to pornography, and exposing their children to photos of men in women’s clothing.
Likewise, Texas law leaves custody decisions to juries, and lets jurors consider a parent’s religious “beliefs, teachings, or practices” as part of the best interests inquiry, if the jurors conclude that those “beliefs, teachings, or practices are illegal, immoral, or demonstrated to be harmful to the child.” “[W]hat is immoral or harmful” is to be “left to the jury to apply community standards,” and may include “gambling, playing a lottery, drinking to excess, homosexual conduct, or abortion.” Presumably constitutionally protected speech, if seen as an “illegal” or “immoral” “belief” or “teaching,” could be considered, just as constitutionally protected abortions might be. Many judges and juries are doubtless reluctant to use the best interests standard this way, especially where religious or political teaching is involved. But others are quite willing.
In a second category of cases, courts restrict custody or visitation based partly on a parent’s having said bad things about another parent, or order a parent not to say such things. Sometimes, the parent’s speech might seem like simple badmouthing, perhaps even constitutionally unprotected slander.
But at other times, the restrictions are based on a parent’s expressing broader viewpoints that also expressly or implicitly condemn the other parent. One parent, for instance, 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,” because the other parent was homosexual. Parents have lost rights based partly on telling their children that the other parent was damned to Hell, or on otherwise criticizing the other parent’s religion. A court could likewise restrict a father’s teaching his children that women must be subservient to men, since such speech might undermine the mother’s authority.
Some restrictions in this category have been based on a parent’s revealing facts that undermine the child’s relationship with the other parent, for instance when a mother accurately told her 12-year-old daughter that her ex-husband, who had raised the daughter from birth, wasn’t the girl’s biological father. And some court orders prohibit the parent from telling the children anything about such orders, presumably on the theory that such discussions are likely to remind the children about tension between the parents, or are likely to be accompanied by explicit or implied criticism of the other parent.
In a third category of cases, some courts have restricted a parent’s religious speech when such speech was seen as inconsistent with the religious education that the custodial parent was providing. The cases generally rest on the theory -- sometimes pure speculation, sometimes based on some evidence in the record -- that the children will be made confused and unhappy by the contradictory teachings, and be less likely to take their parents’ authority seriously. In one case, a court actually ordered “that each party will impress upon the children the need for religious tolerance and not permit any third party to attempt to teach them otherwise,” though it’s not clear how such a vague order could be enforced.
Are these speech restrictions constitutional?
In Part IV, I’ll argue that they generally aren’t, except when they’re narrowly focused on preventing one parent from undermining the child’s relationship with the other. But the observations that lead to this proposal should, I think, prove more interesting to readers than the proposal itself. Here is a brief summary:
1. As I described above, the best interests test leaves courts free to make custody decisions based on parents’ speech, and to issue orders restricting their speech. Courts have taken advantage of this freedom, and will surely do so again. The losers vary depending on which ideology is disfavored at the time in that place: Sometimes they are atheistic and sometimes fundamentalist, sometimes racist and sometimes pro-polygamist, sometimes pro-homosexual and sometimes anti-homosexual. But whoever the losers are, these cases should lead us to take a hard look at this doctrine. And though child custody speech restrictions on ideological speech aren’t routine, upholding them may lead them to become more common.
2. The First Amendment is implicated not only when courts issue orders restricting parents’ speech, but also when courts make custody or visitation decisions based on such speech. Just as the Equal Protection Clause bars child custody decisions that discriminate based on race, so the First Amendment presumptively bars child custody decisions that discriminate based on a parent’s constitutionally protected speech.
3. Even when the parents’ speech is religious, the Free Speech Clause is probably more important than the Religion Clauses, though nearly all the scholarship and most of the litigation has neglected the Free Speech Clause.
4. If parents in intact families have First Amendment rights to speak to their children, without legal prohibitions on speech that is supposedly against the child’s “best interests,” then parents in broken families generally deserve the same rights, except when the speech undermines the child’s relationship with the other parent.
5. Parents in intact families should indeed be free to speak to their children -- but not primarily because of their self-expression rights, or their children’s interests in hearing the parents’ views. Rather, the main reason is that today’s child listeners will grow up into the next generation’s adult speakers: That next generation is entitled to hear a broad range of ideas, without government interference. Restrictions on ideological parent-child speech are a powerful way for today’s majorities or elites to entrench their ideas, and to block their ideological rivals from being heard in the future. The First Amendment is a necessary check on this entrenchment.
6. It may seem appealing to protect speech but only if it doesn’t imminently threaten likely psychological harm to the children, but such an approach will likely prove unhelpful.
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