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Mother's Open Paganism Treated as Reason to Deny Her Custody:

From the trial court's judgment giving the father custody (a decision upheld on appeal), Dexter v. Dexter, no. 2005 DR 0110 (Ct. Com. Pl. Portage County, Ohio May 1, 2006), aff'd, 2007 WL 1532084 (Ohio App. May 25):

[Mother] has undertaken to engage in a lifestyle that is extreme by normal social standards and [mother] testified that she is a devotee of sado-masochism; that she is bisexual; that she engages in paganism; that she has used illicit drugs on a semi-regular basis; and that she spends a great deal of time online where she has two to four websites of so-called "blogs." The evidence also indicates that her fiance ... also engages in sado-masochism, and in the past produced and starred in a theater troupe depicting such activity while also engaging in such conduct in his private life with [mother]....

[M]other and her boyfriend have a perfect right to engage in sado-masochism, paganism and their chosen sexual orientation, but nevertheless, this Court is not convinced that [they] would exercise the due diligence that is required to engage in those practices without exposing such lifestyle to the parties' child[ and thus] adversely affect[ing]the best interests of [the child, a 4-year-old girl].

The father may indeed have been a more suitable parent on some grounds, for instance if the mother and her fiance indeed used illegal drugs (though note that the drug use is listed as just one item among many, including the paganism), or if the mother's online time materially affected the time she spent with her daughter (though I assume that if the mother's problem was that she left her daughter unattended, for instance, the court would have said that rather than just pointing to her "spend[ing] a great deal of time online"). But the reference to mother's paganism — and the view that pagans may be denied custody because their open practices risk "exposing such lifestyle to [their] child[ren]" — strikes me as a clear First Amendment violation.

It seems to me that her bisexuality should likewise be none of the court's business; nor should her sado-masochism, unless there's some specific evidence that the practices are physically harmful to her and thus indirectly to the child (evidence that judgment, the magistrate's findings, and the appeals court decision never even hinted at). Likewise, reliance on the fiance's theater performances seem to me barred by the Free Speech Clause. Still, even if we set the sexual practices aside, perhaps on the theory that Lawrence v. Texas provides only modest protection for sexual autonomy (a hotly debated question), the First Amendment bars a court from relying even in part on the mother's pagan religious beliefs or open participation in pagan religious rituals (except insofar as some specific conduct during those rituals endangers the child or perhaps the parent, something there's no evidence of here).

For more on courts restricting pagan practices (there, Wiccan practices), see this post and the Decree of Dissolution of Marriage, Jones v. Jones, No. 49D01-0305-DR-00898, at 4 (Feb. 13, 2004) (directing both parents "to take such steps as are needed to shelter [the child] from involvement and observation of these non-mainstream religious beliefs and rituals"), rev'd, 832 N.E.2d 1057, 1061 (Ind. Ct. App. 2005). For information on courts discriminating against parents who are less religious and less observant than their ex-spouses, see this post. For more on the general issue of child custody decisions that restrict parents' speech, or that count parents' speech and religious belief against them, see my Parent-Child Speech and Child Custody Speech Restrictions, 81 NYU L. Rev. 631 (2006).

UPDATE: I should have also quoted the appellate decision, which does flag the possible impropriety of relying on religion and the like, but which also suggests that considering religion as a factor is permissible. Here is the relevant excerpt:

In this case, appellant admitted, both in her testimony and through her writings in on-line blogs, that she practiced sado-masochism, was a bisexual and a pagan. Her boyfriend corroborated these practices and beliefs....

The fact that the trial court considered appellant's personal choices and expressed concern over these choices does not warrant reversal under the circumstances of this case where the court's decision was based on consideration of other relevant factors. Therefore, even if we were to find that the court improperly considered some of the evidence regarding appellant's lifestyle choices, we are unwilling to find an abuse of discretion where there are a number of other findings that support the trial court's decision and where the court considered several other factors in making its custody determination.

In urging reversal, appellant contends that this case is analogous to [Pater v. Pater (1992), 63 Ohio St.3d 393]. However, in Pater, the trial court's award of custody to the father was based solely on the fact that the mother was a Jehovah's Witness. Thus, she was denied custody because of her religious affiliation. Both parents were deemed equally competent to care for their child and there was no other evidence finding in favor of the father. The Supreme Court of Ohio reversed the trial court's decision, finding that it was grounded in religious bias. Here, the facts are distinguishable. Unlike Pater, the trial court's decision was not based entirely on its biases or beliefs regarding appellant's personal choices. Rather, the decision was made after the court considered other relevant factors that supported its determination that it was in the best interest of the child that appellee be named the custodial parent. Appellant's reliance on Pater is therefore misplaced.

It seems to me wrong to allow courts to rely even in part on a parent's religion -- at least absent some specific finding that the religion poses a serious imminent risk to the child -- and wrong also just to assume that, even if the reliance on religion was wrong, the result would have been the same without such reliance (at least where the lower court opinion reveals that the court took the religion factor pretty seriously, rather than just mentioning it in passing). The better view, I think, is that expressed in Bonjour v. Bonjour, 592 P.2d 1233 (Alaska 1979) (paragraph break added):

The case must therefore be remanded for a new determination of the custody issue without regard to the religious affiliations of [the parents]. [Footnote:] It is of no avail to argue ... that since finding number 5 [concerning the family environment] alone would support the award of custody to Randall, the inclusion of finding number 4 [concering religion] should not compel this court to remand the case.

The demand for legal precision is at its greatest when fundamental rights are at stake. The trial court's findings delineate only two grounds supporting an award of custody to Randall. Thus, while finding number 5, concerning the family environment, is a factor which clearly may be relied on in making a custody determination, we cannot be certain that the trial court's decision would have been the same in the absence of its reliance on the religious affiliations of the parties.

Brasher:
I agree that the peculiarity of a mother's religion should not usually be a factor in child custody. But, I think it somewhat admirable that the court admitted that it considered her religion as a factor instead of simply granting the father custody on other grounds.
8.2.2007 3:44pm
Phantom:
Right, because if he's going to be a bigot, at least he's willing to admit it.

What boggles my mind is that the appeals court affirmed this.

--PtM
8.2.2007 3:48pm
Wallace:

devotee of sado-masochism; that she is bisexual; that she engages in paganism; that she has used illicit drugs on a semi-regular basis; and that she spends a great deal of time online where she has two to four websites of so-called "blogs."

Seems to me the issue wasn't so much that Mom was a sado-masochistic, bisexual, pagan drug-user, but that she blogged about it. She has a right to her own sexual practices, but the kid has some right to be free of them. There's at least an inference here that the blogging and open talk of sexuality were creeping over into the parenting sphere of this child's life.

I mean, if she was blogging about rent-seeking, appellate court decisions, and the dormant common clause, would the judge have even mentioned it?
8.2.2007 3:54pm
Rick Wilcox (www):
The only thing I can add here is in regards to the Wiccan practices. Most "mainstream" Wiccans, those who follow the religion in some way related to the orthopraxy laid out by its founder Gerald Gardner, perform religious ceremonies that according to the founder himself should not be visible to those not initiated and never to a minor. Initiations involve (gentle) scourging, most rituals are performed "skyclad" (nude), and the Hieros Gamos involves either real or symbolic ritual sex. At least in the case of Wicca, I agree with the judge, but that's mostly because the judge agrees with the tenets of the religion.

Well, unless you get into Gavin and Yvonne Frost's version of the religion, which involves many elements that have caused quite a large section of the pagan population to steer clear of association therewith - I shan't get into the gory details, other than to say that claims of ritualized sexual child abuse under Frost theology would not be unsupportable.

Then again, I've seen a judge tell a father who was living with his fiancee that he was not a fit parent, and that he had until 5pm that day to get married or else the judge would award custody to the ex-wife, who had previously been denied custody over allegations of physical abuse. Apparently some judges think it is better for a child to be hit than to be exposed to anything other than a heteronormative, dual-parent, Christian lifestyle.
8.2.2007 4:01pm
KeithK (mail):
Once you decide that a court has the power to decide what is "in the best interests of the child" you have granted it significant authority to rule on an inherently subjective basis. It doesn't surprise me that a court would rule that the mother's lifestyle as portrayed here would be less suitable to a child's development than a more mainstream one (assuming that the father fits that description).

The mother may have a right under Lawrence to engage in sado-masochism and bisexuality, but I don't think this requires that the state condone this or be neutral towards it when considering the best interests of the child. The paganism question is not as clear to me but I suspect that the court is seeing this as part of the totality of the woman's lifestyle.
8.2.2007 4:01pm
scote (mail):

see this post and the Decree of Dissolution of Marriage, Jones v. Jones, No. 49D01-0305-DR-00898, at 4 (Feb. 13, 2004) (directing both parents "to take such steps as are needed to shelter [the child] from involvement and observation of these non-mainstream religious beliefs and rituals"

I think this brings up an important issue about religion and child rearing. Many of the beliefs and practices that some mainstream religions require are seemingly outrageous when viewed by an outsider (to fervently believe in talking snakes, bushes and donkeys, to eat the flesh and drink the blood of God, to cut off part of the genitals of male babies). It is only when a religion becomes large enough that we, as a society, blithely accept these practices. The court seems to unquestioningly and unconsciously believe the idea that popular religious practices are de jure reasonable ones.

Smaller and newer religious lack this free-pass and are scrutinized more closely. Tame Pagan practices are condemned while larger religious sects are allowed to forgo medical treatment for their children in lieu of prayer.

Religion distorts our interpretation of reasonableness. Perhaps the court should care less about whether a practice is "mainstream" and more about objective standards of harm.
8.2.2007 4:04pm
JosephSlater (mail):
I'm with EV all the way on this one. Plus, this phrase, "where she has two to four websites of so-called "blogs" in dangerously close to "internets" and "tubes" territory.
8.2.2007 4:04pm
political correctness getting out of control:
I disagree with Volokh. The court had valid reasons to consider her lifestyle self-destructive, and the fact that she cloaked them in religion or that it is sexual in nature does not all of a sudden mean that the court must tie its hands behind its back. That is political correctness gone amuck and makes little practical sense. There is no infringement of this lady’s freedom to exercise whatever religion she likes (nor to seek sexual gratification with whomever she likes). It is rightly the court’s province to say that the father is the preferable party to take custody of the child.
8.2.2007 4:12pm
scote (mail):

Most "mainstream" Wiccans, those who follow the religion in some way related to the orthopraxy laid out by its founder Gerald Gardner

This may, indeed, be so. However, the people I know who call themselves "pagans" and "wiccans" are rather casual and scattered believers to whom orthodoxy is anathema. I would suspect such generalized belief, lacking orthodoxy and the ritual sex and such, is much, much more common than dedicated believers just as many Christians attend church irregularly, if at all, but still call themselves Christian.
8.2.2007 4:13pm
Clayton E. Cramer (mail) (www):
KeithK writes:

The mother may have a right under Lawrence to engage in sado-masochism and bisexuality, but I don't think this requires that the state condone this or be neutral towards it when considering the best interests of the child.
Actually, I think it does, if you include O'Connor's concurrence on equal protection grounds. What gives the government authority to decide that bisexuality or sado-masochism are not equal to any other expression of sexuality?

Once you open the barn door, as Lawrence did, all sorts of odd beasts are free to enter and exit as they wish--and the state's authority to decide which ones is severely limited.

Lawrence was decided based on false history; it needs to be overturned.
8.2.2007 4:14pm
fffff:
EV,

What do you think about the communities which practice derivatives of mainstream Mormonism (including, i.e, polygamy but also other practices that cloister community members away from mainstream society and which may make them vulnerable to exploitation by the community leaders)?
8.2.2007 4:15pm
Clayton E. Cramer (mail) (www):

I disagree with Volokh. The court had valid reasons to consider her lifestyle self-destructive, and the fact that she cloaked them in religion or that it is sexual in nature does not all of a sudden mean that the court must tie its hands behind its back.
Yes it does! And the lawyers get to whip the court until it screams the code word to stop!
That is political correctness gone amuck and makes little practical sense.
Completely agreed. Lawrence was wrongly decided, leading to a host of absurd results. Once you remove the concept of morality from law, what's left?
8.2.2007 4:16pm
Houston Lawyer:
Most people approach custody disputes with an assumption that the woman should get custody unless she is proved to be somehow unfit. I think that anyone who is out of the mainstream in any obvious way would be at an obvious disadvantage in a custody dispute.

The supreme court has not yet ruled that a person's unorthodox sex life cannot be taken into account in custody disputes. I would think that allegations that mom is "whoring around" would be highly relevant to a judge, since most child predation is done by mommy's boyfriends. Just because we don't generally want people fishing around into other people's personal lives doesn't mean that the issues uncovered aren't relevant in custody cases.
8.2.2007 4:16pm
JunkYardLawDog (mail):
EV, perhaps you are failing to fully weight some of the necessary considerations in a custody dispute. Custody involves splitting up the parental/custodial powers that are exercised jointly by the spouses when living together in an intact marital relationship.

When the marital relationship is dissolved, the court must decide not just the amount of time the child has with each parent and when but also which parent or parents shall exercise which parental/custodial powers. Those powers commonly include things like determining the schooling of the child, the religious and moral training the child receives, the power to consent to non-emergency medical treatment and procedures, the power to sign a consent to allow an underage child to get married, the power to consent to an enlistment in the armed services, etc. The non-custodial parent may not interfere in the custodial parent's choices on religious and moral training in a manner that would overrule the custodial parent's choices on this issue.

In making initial custody decisions the best interests of the child necessarily include taking into account the lifestyle of the two parties, the overall environment the child would be exposed to, etc. and comparing those lifestyles to what is "normal" in the community.

So if it could be shown that a child would be exposed to exactly the same environment with two different parents then then perhaps your first amendment argument would have merit, but if the environments are different and one is radically different from the normal community standards while one is in line with normal community standards it is perfectly proper for a judge to decide that the custodial parent should be the one that provides the environment closest to local societal norms. Further, psychologists all testify in these matters that one of a child's primary needs is structure and consistency. A swinging lifestyle that is clearly out of the normal for the local community and subject to the many changing intimate relationships of a swinging sado masochist parental lifestyle does not provide the stability and structure necessary for the healthy development of a child. Then there are the entire destructive psychological aspects of exposing a child during their sexual development and identity years to a life style that encourages the physical subjugation of others for one's pleasure. Imagine the psychological impact on a daughter being exposed to adult female role models that believe they are slaves to their masters and subject to physical beatings for being "bad", etc.

To the extent the "pagan" religion supports the objectivization of others for pleasure, master/slave relationships, and other unhealthy/abnormal religious and moral training of minors during their developmental years it is a perfectly valid and constitutional basis for determining what situation best protects and preserves not just the constitutional rights of the pagan parent but also the non-pagan baptist/methodist/catholic parent's constitutional rights with regard to the religious and moral training of their child and the minor child's right to have the courts protect their best interests during their minority developmental years.

In other words its a balancing test, and the parent's unquestionable constitutional right to be a pagan and a sado masochist must be balanced against the other parent's constitutional right and the court's duty to protect the best interests of the child by providing for a custodial situation and parental powers that will give the child the structure, stability, and sexual development appropriate for a MINOR child whose personality and sexual development are not complete and still developing.

The pagan mom as a constitutional right yell fire, just not in a crowded theater. She has a constitutional right to the most screwed up religious and sexual practices in which she cares to partake, just not in front of her minor children.

Says the "Dog"
8.2.2007 4:17pm
Daniel San:
First Amendment rights give way in custody cases. You have a Constitutional right to be active in the Klan. You have a Constitutional right to use racist language in the presence of your child. But if you do either, the judge can take it into consideration in a custody case. I use that extreme example because I think most of us would agree. Similarly, I have a Constitutional right (in many cases) to withhold medical treatment from my child for religious reasons, but in a custody case, it can be held against me.

The disturbing aspect of the religion and custody cases is not the infringement on Free Exercise. Best interest trumps Constitutional rights. But the cases do seen to create real Establishment problems. Courts routinely decide that it is in the best interest of children to attend church, or to live with the Catholic instead of the atheist, or to live with the lapsed Presbyterian instead of the Pagan. Without some pretty clear evidence concerning the reasons a particular belief system is a better context for a particular child, these decisions amount to decisions that Religion A is more worthy than Religion (or non-Religion) B.
8.2.2007 4:20pm
PatHMV (mail) (www):
Haven't we covered this at great length in previous threads? Is there anything particularly different about this case from the other ones? Does it shed any new light on the extent to which the court in custody cases is or is not constrained by the constitutional provisions which normally limit state action? With all respect, Eugene, I haven't seen many responses by you to the objections raised to your point of view.

On the substance of the issue, I think it is, or at least should be, perfectly acceptable that a court decide that the best interests of the child, when such is disputed by two parties with equal right to raise that child, lie with the party who lives (and thus would raise the child) in the most "normal" environment. The mother's practices put her somewhat to the fringe of our society; the overwhelmingly vast majority of Americans do not practice that religion, and most do not practice sado-masochism to the extent she apparently does. Being raised in that fringe edge of society would make it more likely that he, too, would be raised into that edge, finding it harder to instead merge into the mainstream of our society. Being in the mainstream will mean a wider potential circle of friends, connections, job opportunities. Isn't it acceptable for a court to find that the best interests of the child lie with being in the mainstream of society rather than its fringe?
8.2.2007 4:21pm
Empass:
Assuming that it is wrong to consider religion in making the best interests determination, why shouldn't the district court's consideration of it be subject to harmless error review, or whatever equivalent they have in Ohio. In federal court, errors, even constitutional ones, are subject to harmlessness review in the Courts of Appeal. Unless they are structural, of course. But I don't see how this particular error could be deemed structural.
8.2.2007 4:25pm
JunkYardLawDog (mail):
Phantom, what boggles my mind is that some people might think the decision wasn't a no-brainer correctly decided and correctly affirmed.

Says the "Dog"
8.2.2007 4:25pm
Oren (mail):

She has a right to her own sexual practices, but the kid has some right to be free of them.


That's patently absurd. She has the right to her own sexual practices and she has the right to communicate her beliefs to her daughter at a time she finds appropriate.

Will the sex-negative reactionaries ever find any way to be at peace with the world?
8.2.2007 4:28pm
Clayton E. Cramer (mail) (www):

The mother's practices put her somewhat to the fringe of our society; the overwhelmingly vast majority of Americans do not practice that religion, and most do not practice sado-masochism to the extent she apparently does. Being raised in that fringe edge of society would make it more likely that he, too, would be raised into that edge, finding it harder to instead merge into the mainstream of our society. Being in the mainstream will mean a wider potential circle of friends, connections, job opportunities. Isn't it acceptable for a court to find that the best interests of the child lie with being in the mainstream of society rather than its fringe?
By this reason, a child custody dispute involving say, an Orthodox Jew and a Protestant would always give custody to the Protestant. A dispute involving two parents, one of whom is a member of Mensa, and the other of whom has an IQ of 100 would mean that the normal parent would always get custody.

The problem here is that a lot of people have a gut feeling that the mother is a sick and repulsive person because of her weirdness--but no one wants to admit that there's a difference between being an Orthodox Jew (out of the mainstream) and being pagan (also out of the mainstream), and that's there a difference between being a genius (out of the mainstream), and being a sadomasochistic bisexual (also out of the mainstream).

When you abandon all notions of Judeo-Christian morality as a basis for law, you get some very confusing results. It's just moral chaos that destroys people; rather like living in the San Francisco Bay Area.
8.2.2007 4:29pm
scote (mail):

The supreme court has not yet ruled that a person's unorthodox sex life cannot be taken into account in custody disputes. I would think that allegations that mom is "whoring around" would be highly relevant to a judge, since most child predation is done by mommy's boyfriends.

You are conflating sexual practices with social life. In the case at hand we are talkingabout, in one instance, her practice of S&M not about how many partners she has and what not. The S&M is about as relevant as a judge asking a woman what her favorite sexual position is and basing a custody decision on her answer.

What she does discreetly in her bedroom is generally her business, what she does outside the bedroom with her kids is relevant, including home life, her responsibility as a parent,. etc. Note, that I'm specifically not claiming that everything a parent does in a locked room is irrelevant. Drug use can negatively affect a person's responsibility and behavior and would be relevant.
8.2.2007 4:29pm
Brasher:
I just want to clarify that what I thought was admirable about the opinion was that the court didn't obfuscate its reasons for granting custody to the father. I see such obfuscation a lot with criminal sentencing (i.e. the judge has a gut feeling that a certain defendant is a "good" or "bad" person and that feeling is probably based on an improper factor like religion, race, or gender), and it is the worst part about allowing judges such broad discretion.
8.2.2007 4:33pm
Clayton E. Cramer (mail) (www):

That's patently absurd. She has the right to her own sexual practices and she has the right to communicate her beliefs to her daughter at a time she finds appropriate.
And this takes precedence over the rights of the father to raise his child in accordance with his values for what reason? Just because the mother is kinky, and therefore gets priority in law professor land?

Will the sex-negative reactionaries ever find any way to be at peace with the world?
Will people whose confusion of sex, pleasure, pain, and humiliation, ever find a way to be at peace with themselves? Probably not until they get therapy.

I don't know too many people who are "sex-negative." But there are appropriate and inappropriate forms of sexuality. Rape is inappropriate, and while a number of regular commenters here will disagree, adults having sex with children is also inappropriate. Do you agree or not? Or are you one of those "sex-negative" sorts?
8.2.2007 4:34pm
Oren (mail):

Isn't it acceptable for a court to find that the best interests of the child lie with being in the mainstream of society rather than its fringe?


No. I was raised at the fringes of society and I wouldn't trade my upbringing for all the Christian guilt in the world.
8.2.2007 4:34pm
JunkYardLawDog (mail):
Oren,

That's patently absurd. She has the right to her own sexual practices and she has the right to communicate her beliefs to her daughter at a time she finds appropriate.

Sorry, but that is flatly not true in a divorced parent situation. When the parents divorce if a parent is not awarded the parental/custodial power regarding religious training of the child then your statement above is false in many instances.

It is a logical and factual error to construct an argument that applies to a parent in an intact marriage/non-divorced situation (such as your statement quoted above) and then attempt to apply that to a divorced parent where the parents do NOT agree what the child should be taught. In the situation of a divorce where the parents do not agree what religious training the child should receive then it is the SOLE choice of the parent with the parental/custodial power over religious training.

Says the "Dog"
8.2.2007 4:36pm
Clayton E. Cramer (mail) (www):
Scote writes:

You are conflating sexual practices with social life. In the case at hand we are talkingabout, in one instance, her practice of S&M not about how many partners she has and what not. The S&M is about as relevant as a judge asking a woman what her favorite sexual position is and basing a custody decision on her answer.

What she does discreetly in her bedroom is generally her business, what she does outside the bedroom with her kids is relevant, including home life, her responsibility as a parent,. etc.
So how do we know so much about what she "does discreetly in her bedroom"? Maybe those four blogs of hers?
8.2.2007 4:37pm
Colin (mail):
Yes it does! And the lawyers get to whip the court until it screams the code word to stop!

Sweet Zombie Jesus. Clayton made a funny. Intentionally. Kudos!

When you abandon all notions of Judeo-Christian morality as a basis for law, you get some very confusing results. It's just moral chaos that destroys people; rather like living in the San Francisco Bay Area.

Aaaaaaand now we’re back to dour and bitter slandering of liberals/gays/California. Nothing new under the sun.
8.2.2007 4:39pm
scote (mail):

When you abandon all notions of Judeo-Christian morality as a basis for law, you get some very confusing results. It's just moral chaos that destroys people; rather like living in the San Francisco Bay Area.

It is false to say that people of any one religion, let alone a range of Judeo-Christianity, are more moral than non-Christians. Heck, Christians can't even agree whether "Thou shalt make no graven images" is one of the Ten Commandments.

Morality is relative even within Christianity. The Ten Commandments say not to murder but each sect and person gets to argue about what constitutes murder, especially since God commands the slaughter of men, women and children in the Old Testament.

The perfect morality of the Ten Commandments warn adherents not to covet any of his neighbor's property (including his wife) and not to murder, but the decalogue says nothing about rape, torture, slavery, child abuse, etc.

Moral chaos is a Judeo-Christian **tradition** and not a problem that Judaism or Christianity have an answer for.
8.2.2007 4:40pm
Ubertrout (mail) (www):
As an FYI, the Appeals Court Opinion is available here(PDF).
8.2.2007 4:41pm
Spartacus (www):
When you abandon all notions of Judeo-Christian morality as a basis for law, you get some very confusing results.

What then, about the fact that modern so-called "pagan" religious beliefs and practices in large are based on the same Judeo-Christian morality (believe it or not)? Pagans and Wiccans are basically normal people (the mother in this case notwithstanding), and a person's religion should never be used as a basis to deny custody absent a rational explanation that certain practices (e.g., ritual child abuse) are part and parcel of the religion. In my experience, that is simply not the case with wicca or paganism, only that some misguided individuals with little contact with alternative religions (perhaps themselves Christians) think so.
8.2.2007 4:41pm
Steve2:

but no one wants to admit that there's a difference between being an Orthodox Jew (out of the mainstream) and being pagan (also out of the mainstream), and that's there a difference between being a genius (out of the mainstream), and being a sadomasochistic bisexual (also out of the mainstream).


No one wants to admit there's a difference because there is no difference.
8.2.2007 4:47pm
Martin Grant (mail):
>I would think that allegations that mom is "whoring around" would be highly relevant to a judge, since most child predation is done by mommy's boyfriends.

Are you really serious? How about this:

Likewise I would think that allegations where one parent attends Catholic church, where incidences of child predation are well documented, should rule out the Catholic parent getting custody.
8.2.2007 4:47pm
Nate F (www):
I honestly have trouble believing that such a significant percentage of commenters feel Lawrence was wrongly decided. Wow. Totally blows my mind, I don't even know what else to say about it.
8.2.2007 4:52pm
Oren (mail):
JYLD:


To the extent the "pagan" religion supports the objectivization of others for pleasure, master/slave relationships, and other unhealthy/abnormal religious and moral training of minors during their developmental years . . .


could just as well read


To the extent the "christian" religion supports the unhealthy suppression of sexual desire, the subjugation of women, the elevation of absurd scripture above reason, the inability to respect differing religious/sexual beliefs and other unhealthy/abnormal religious and moral training of minors during their developmental years . . .


if some jackass pagan judge wanted to impose his religious and sexual preferences on the parents in his courtroom. This is no way to create a tolerant society of human beings capable of respecting (I'd prefer celebrating . . .) our differences instead of imposing them on others.

In other words, I'm giving you two choices:

(1) Accept as legitimate the practice of judges imposing their own normative views of religious and sexual practices of the parties in their courts, even in situations where those views are in opposition to yours.

(2) Reject that authority and force judges to make their decisions on objective, factual grounds.
8.2.2007 4:54pm
alkali (mail) (www):
I mean, if she was blogging about rent-seeking, appellate court decisions, and the dormant common clause, would the judge have even mentioned it?

Talk about your perversion ...
8.2.2007 4:54pm
uh clem (mail):
JunkyardLawDog: Phantom, what boggles my mind is that some people might think the decision wasn't a no-brainer correctly decided and correctly affirmed.

Absent information about the father, calling it a no-brainer is presumptive. How do you know that he's not even "worse" (according to your value system, that is).

Let's remember that the standard here is "best interest of the child", not illegality. There are many perfectly legal activities which would dissuade the court from granting custody if the parent engages in them. Being unemployed, for instance.

That said, I agree with Eugene about the religious issue - simply stating "Pagan" is not sufficient. If there is some practice that Pagans engage in that is not in the best interest of the child, then taking that practice into consideration is within the bounds. For instance, a Christian Scientist who withholds medical care from children. I've got no problem denying custody based on that, but it's based on behavior, not belief.
8.2.2007 4:54pm
SADO Summer:
Just for clarification: the opinion (or the portion posted, anyway) simply suggests she spends time online and has blogs; it never says what they cover. While it is reasonable that they might cover the offending interest areas, she may, like other humans, have interests outside of unusual sex habits and religion and blog about those. Many of you seem to be making assumptions, unless I've read it wrong.
8.2.2007 4:54pm
Clayton E. Cramer (mail) (www):

I honestly have trouble believing that such a significant percentage of commenters feel Lawrence was wrongly decided. Wow. Totally blows my mind, I don't even know what else to say about it.
Do you not understand the concept that it's a stupid law, but that doesn't make it unconstitutional? Not everything that is constitutional makes sense.
8.2.2007 4:56pm
LotharoftheHillPeople:
Nate F writes:
I honestly have trouble believing that such a significant percentage of commenters feel Lawrence was wrongly decided. Wow. Totally blows my mind, I don't even know what else to say about it.
Nate F, can you explain why? Is the doctrine of substantive due process so obviously correct that it "blows your mind" some disagree with it?
8.2.2007 4:56pm
Clayton E. Cramer (mail) (www):
Steve2 writes:

No one wants to admit there's a difference because there is no difference.
Fortunately for you, while I suspect that only a few percent of the population would agree with you (especially about the sadomasochism), that few percent generally wear black robes.
8.2.2007 5:00pm
Anderson (mail) (www):
Pagan Mom sunk herself in no small part by withholding visitation; that plus the GAL report plus the drug usage would've led to her losing custody absent any other factors.

Still, had I been the appellate court, I would've clearly set forth that taking religious practices into account against one parent was impermissible, and would have remanded with an order to transfer to a different judge. Trial judges have SOOO much discretion in these cases that even a whiff of bias makes me very uneasy.

In Mississippi, I know it used to be a factor whether a parent took the child to church or not ... unsure whether that's still a live factor today.
8.2.2007 5:02pm
Wallace:

She has the right to her own sexual practices and she has the right to communicate her beliefs to her daughter at a time she finds appropriate.


The point I was making was that it seems mom's public blogs referenced her lifestyle, and the child could have found out about mom's sexual proclivities at an inappropriate age (perhaps even before mom would have thought appropriate). I thought that the judge sensed mom's sexual, religious, and blogging choices showed a lack of discretion that is not conducive to good parenting. Is that so outrageous?
8.2.2007 5:07pm
Clayton E. Cramer (mail) (www):

Nate F, can you explain why? Is the doctrine of substantive due process so obviously correct that it "blows your mind" some disagree with it?
And keep in mind that without Justice O'Connor's vote, based on equal protection instead, Lawrence would have gone the other way. For example, if the Texas statute applied to both heterosexuals and homosexuals (as the equivalent Idaho statute does), O'Connor admits that it would have been Constitutional:

A law branding one class of persons as criminal solely based on the State’s moral disapproval of that class and the conduct associated with that class runs contrary to the values of the Constitution and the Equal Protection Clause, under any standard of review. I therefore concur in the Court’s judgment that Texas’ sodomy law banning “deviate sexual intercourse” between consenting adults of the same sex, but not between consenting adults of different sexes, is unconstitutional.
So there's at least two different explanations of what was wrong with the Texas statute.
8.2.2007 5:07pm
Hattio (mail):
JYLD says;

In the situation of a divorce where the parents do not agree what religious training the child should receive then it is the SOLE choice of the parent with the parental/custodial power over religious training.


Maybe in sole legal custody situations. But typically each party, when exercising custody or visitation, has an absolute right to raise the child in any or no religion.
8.2.2007 5:08pm
Clayton E. Cramer (mail) (www):

Pagan Mom sunk herself in no small part by withholding visitation; that plus the GAL report plus the drug usage would've led to her losing custody absent any other factors.
If the decision had held that her unconventional religious beliefs was a "tie breaker" (to use a phrase that defenders of Affirmative Racism like to use), would that have been acceptable? I mean, it's okay to liberals when discriminating based on race.
8.2.2007 5:10pm
Smokey:
I like to imagine what the authors of the Constitution would say about this case. And I have a pretty good imagination.
''Once you remove the concept of morality from law, what's left?''
Yep.
8.2.2007 5:11pm
Anderson (mail) (www):
I thought that the judge sensed mom's sexual, religious, and blogging choices showed a lack of discretion that is not conducive to good parenting. Is that so outrageous?

Re: sexual and religious, yes, it *is* so outrageous. Thanks for asking.

Re: the publicity issue, I wonder if the First Amendment is an issue. Suppose that Pagan Mom had written a memoir of her sadomasochistic awakening, which became a bestseller.

Would that weigh against her in a custody battle? If so, then what other embarrassing things about oneself is one forbidden to write, for fear of losing custody of one's kids?
8.2.2007 5:11pm
Sean M.:
What about this claim that children should be raised, as much as possible, in the "mainstream." What does that mean, exactly?

Doesn't this all boil down to: It's in the best interests of our children to conform as much as possible? If so, why is that a good thing?
8.2.2007 5:12pm
Anderson (mail) (www):
I mean, it's okay to liberals when discriminating based on race.

If there were a grave history of persecution in America against pagans ... and if we were talking about an employment decision, not custody of a child ... and if the legislature had found that affirmative action was a way to redress said grave history of persecution ... then sure, paganism could be a tie-breaker, FOR the mom.

Also, if Hitler had never been born, the Holocaust wouldn't have happened, and if frogs had wings, they wouldn't wear their butts out hopping on the ground. So what?
8.2.2007 5:15pm
Wallace:

then what other embarrassing things about oneself is one forbidden to write, for fear of losing custody of one's kids?


I, for one, wouldn't go around letting people know that I write snarky comments on legal blogs.
8.2.2007 5:19pm
Eugene Volokh (www):
PatHMV: Well, I did write a 100-page law review article on the subject. Perhaps I should have excerpted more of it on the blog, and perhaps I still will. But if you really are interested in what I say about the various arguments on the subject, I'm pretty sure that you'll find a lot there, especially in Part II.B (pp. 683-712).
8.2.2007 5:21pm
PatHMV (mail) (www):
Sean M.,

If both parents want to raise a child out of the mainstream, I'm all for it. I wouldn't have the state interfere for all the world (as long as they're not actually molesting or physically abusing the child, of course). But when the two parents disagree on how to raise the child and who should have primary physical custody of the child after a divorce, and they are both technically "fit" parents, and the judge HAS to decide which parent's custody is in the "best interest" of the child, I see no reason why the court shouldn't be able to look at the relative normalcy of the two parents' lifestyles. Now if the dad's an habitual, unemployed drunkard, I've got no problem with the court sending the kid to live with the mother, even if she chants naked to the godess nightly in the backyard and posts blog pictures about it for the world to see. But if both parents are relatively decent parents, then yes, I think it's entirely appropriate for the court to say that the best interests of the child are more likely to be served by being with the more "normal" parent.

To all the commenters erecting strawmen arguments that I never made... please read the above. I'm not saying it must be the rule in all circumstances, or should be applied to the exclusion of all other factors. I was not adopting an absolutely quantitative definition of "normalcy" as you obviously want to believe. Judaism is clearly a mainstream American religion, as is Mormonism and no doubt several others. But some sects of Judaism are outside the mainstream, as are of course some sects of Christianity. "Normal" and "relatively normal" are certainly not precise definitions, but like pornography it's not that hard to tell the difference, in the grand scheme of things.
8.2.2007 5:29pm
PatHMV (mail) (www):
Thanks, Eugene. I suppose that'll do... ;-) I'll check back in after I've read through it.
8.2.2007 5:31pm
JunkYardLawDog (mail):
Hattio

Maybe in sole legal custody situations. But typically each party, when exercising custody or visitation, has an absolute right to raise the child in any or no religion.

No Hattio this is not true. If the non-custodial parent does not have or jointly have the parental/custodial power of determining religious training, then the non-custodial parent does NOT have the right to provide religious training to the Child during periods of visitation no more than the non-custodial parent has the power to consent to marriage, enlistment, or non-emergency medical treatment during periods of visitation.

Can the non-empowered non-custodial parent get away with cheating on this a bit. Yes, but if the cheating began to interfere with the custodial parent's parental power to determine the religious training of the minor child the cheating parent could have their visitation privileges curtailed or supervised or eliminated or be subject to jail for contempt of court.

Its even possible that the non-custodial parent be ordered by the court to take the child to the child's scheduled religious training classes that are scheduled during the non-custodial parents' visitation periods.

Says the "Dog"
8.2.2007 5:32pm
scote (mail):

I like to imagine what the authors of the Constitution would say about this case. And I have a pretty good imagination.
''Once you remove the concept of morality from law, what's left?''
Yep.

You certainly do have a very good imagination. Very imaginary...

If we took the "morality" out of the laws we wouldn't have laws against covetousness or making graven images, instead we'd have laws prohibiting un-reasonable search and seizures and laws granting us a right to free speech. Ooopps...

Oh, sure, you can argue that laws against gambling, murder and theft are laws against "immoral" behavior, but when talking about the law and "morality" we generally use morality to define things that aren't illegal but that we consider to be wrong on a "moral" level, like being a lying scumbucket. So, generally, we don't encode "morality" into our laws.
8.2.2007 5:33pm
chris c:
the admission about using illegal drugs was enough to decide the case. the religion should have been beside the point.

but I'm curious about the commenters saying the overt S&M stuff is off limits for a judge to consider in a custody case involving a small child. why? judges weigh lifestyles, what puts sexual practices beyond the pale?
8.2.2007 5:36pm
John425:
I think considering a religion in a custody case SHOULD be relevant. What if certain animistic beliefs included live animal sacrifice or the "giving" or marrying a child to an old man were part of it? Islam allows 4 wives and Mohammed had sex with his 9 year old bride (after marrying her at 6)
What if drugs are an integral part of the religious practice? Ratafarianism for instance? Peyote in Indian religion?
8.2.2007 5:38pm
Ken Arromdee:
But when the two parents disagree on how to raise the child and who should have primary physical custody of the child after a divorce, and they are both technically "fit" parents, and the judge HAS to decide which parent's custody is in the "best interest" of the child, I see no reason why the court shouldn't be able to look at the relative normalcy of the two parents' lifestyles.

By this reasoning, if one parent dates someone of a different race, and another parent dates someone of the same race, the judge should award custody to the parent who dates someone of the same race. It's more "normal", and is likely to lead to fewer problems for the child, everything else being equal.
8.2.2007 5:40pm
Daniel San:
Anderson: If so, then what other embarrassing things about oneself is one forbidden to write, for fear of losing custody of one's kids?

In a custody fight, nearly everything is fair game. Even exemplary activity (like blogging) may be a negative for children. This is not about punishing parents. It is considering the best interest of the child.

Here are the Appellate references to the blogs: "In this case, appellant admitted, both in her testimony and through her writings in on-line blogs, that she practiced sado-masochism, was a bisexual and a pagan." "Although appellant denied using illicit drugs, her on-line blogs contain several references to drug usage. In her Myspace writings, appellant stated that she was on a hiatus from using illicit drugs during the pendency of these proceedings, but that she planned on using drugs in the future. She also said that she would use drugs in her home if Giovanna was sleeping." "However, with respect to her Myspace account, appellant admitted in open court that she wrote these on-line blogs and that these writings were open to the public to view."
8.2.2007 5:43pm
anym_avey (mail):
Doesn't this all boil down to: It's in the best interests of our children to conform as much as possible? If so, why is that a good thing?

I respond, 'no' -- it doesn't have to mean anything of the sort. Differences in personality always shine through unless taken to extreme measures such as abuse or brainwashing; but the fact remains that people will be most capable of interacting in the environment in which they are raised, and breaking out of that environment can be a difficult and painful task.

So, in this case, it is quite reasonable -- in the name of "best interests" under which these things are done -- for the court to promote the outcome that will best enable the child to interact with a broad segment of society, if that aspect is at stake in the decision.

If the child then CHOOSES to go against the mainstream, having seen that there will be a price to be paid for doing so, then that is arguably better than if the child exits the somewhat sheltered environment of childhood and runs head first into "normal" with no conception of how to accommodate it, and finds his or her opportunities severely restricted in consequence.
8.2.2007 5:48pm
scote (mail):

John425:
I think considering a religion in a custody case SHOULD be relevant. What if certain animistic beliefs included live animal sacrifice ...

Good point, what if a religion required kids to drink **human** blood every week? I mean that would **clearly** disqualify a parent from custody, right?
8.2.2007 5:57pm
PatHMV (mail) (www):
Ok, Eugene...

I think you dismiss Professor Dwyer's position (to which I would say, just based on reading your excerpts, I adhere) too facilely.

You first dismiss it on the grounds that it would extend to allowing racism to be a consideration in granting or denying custody. That's not a foregone conclusion. Our laws very often treat racial discrimination quite differently from other actions. In the employment arena, we easily pass laws prohibiting race and gender discrimination, but not discrimination based on political views. We often find the Constitution to allow the government to interfere with the freedom of association to protect against race and gender discrimination, but not to protect against discrimination on the basis of political speech, for example. I think a court could fairly easily craft a rule prohibiting making a "best interests" determination based on racial grounds while allowing them based on religion or speech grounds.

Second, you raise a slippery slope argument (page 696). You assert that the doctrine could easily apply be applied to allow interference with non-split parents. One could also easily limit the doctrine only to split parents when they ask the courts to intervene and make the custody decision. The Constitutional protections of the rights of united parents to make decisions for their children are well established, and I see nothing inherent in Prof. Dwyer's proposed doctrine which would compel the overturning of those decisions. The doctrine is not (or at least need not be) based solely on a "fiduciary" approach, but on the combination of the "fiduciary" approach and the "somebody's got to make a decision" approach.

Certainly there is potential for abuse in the doctrine. Your horror scenarios could occur, the Republican always giving custody to the Republican parent, etc. But they need not, and I don't believe that they often would. It's one thing to say that religion, or speech, or what have you should be the sole factor in the custody decision. It certainly shouldn't. But where both parents are relatively comparable as caregivers, and they absolutely cannot agree on how to share custody and they demand that the court make the decision for them, in the best interests of their child, then I think that religion and speech and general lifestyle should be considered.

Let's try another hypothetical. Imagine two parents split, with a young girl stuck in the middle. One parent believes that girls are equally capable as boys and should receive the same education and should have the same opportunities that any boy would. The other believes that education is wasted on girls (but truthfully asserts that he/she will follow the compulsory attendance laws of the state), that girls should always be subservient to men, that they should be seen and not heard. And, of course, that parent believes all this for ostensibly religious reasons. Why in the world must we have a law which prohibits the judge from recognizing that the little girl should not go with that backwards parent?

Another danger of your position is that it could actually cast a subtle balance in favor of the parent with the unusual lifestyle or religion. Suppose again that both parents are roughly competent caregivers, to the extent that it's very difficult to articulate precisely why the best interests of the child lie with one over the other. If the judge sides with the non-mainstream parent, what options does the mainstream parent have to appeal? Very little, other than the extremely difficult to establish "abuse of discretion." But if the mainstream parent wins the close call, not only can the non-mainstream parent argue "abuse of discretion" but they can ALSO argue "discrimination" and improper consideration of protected rights. Over time, that either leads to the non-mainstream parent winning more appeals, or a bunch of judges learning how to paper over their opinions to discriminate against the non-mainstream parent without being open and forthright about it.
8.2.2007 6:02pm
alkali (mail) (www):
For what it's worth, my understanding is that some S&M practitioners limit those activities to the bedroom and some do not. (See this Dan Savage column for some discussion of the latter group; suffice it to say that he thinks such people ought to be extremely careful about stepping on others' sensibilities. For those who are unfamiliar with Mr. Savage's work his columns are R-rated.)

If the mother in this case fell into the latter group it's hard for me to imagine that a court couldn't properly take that into account even under the strongest possible reading of Lawrence.
8.2.2007 6:03pm
NickM (mail) (www):

I thought that the judge sensed mom's sexual, religious, and blogging choices showed a lack of discretion that is not conducive to good parenting. Is that so outrageous?

Re: sexual and religious, yes, it *is* so outrageous. Thanks for asking.



Why is it so outrageous when the sexual practices involved are sadomasochistic? They're in the DSM-IV-TR as paraphilias.

Nick
8.2.2007 6:10pm
scote (mail):

For what it's worth, my understanding is that some S&M practitioners limit those activities to the bedroom and some do not. (See this Dan Savage column for some discussion of the latter group; suffice it to say that he thinks such people ought to be extremely careful about stepping on others' sensibilities. For those who are unfamiliar with Mr. Savage's work his columns are R-rated.)

If the mother in this case fell into the latter group it's hard for me to imagine that a court couldn't properly take that into account even under the strongest possible reading of Lawrence.

That is a hypothetical that I doubt anyone here would dispute. In **that hypothetical case** the woman's behavior outside the bedroom and her social interactions with her child and others are being judged rather than her religion or private sexual practices.

I should ad that race and religion are not comparable in the custody context because race is an accident of birth and says nothing about your beliefs or actions. Religion, while often culturally derived from ones parents, involves beliefs and behaviors based on those beliefs. It is entirely fair to judge people on their behavior, though I would emphasize that it is the behavior one should judge the person on not the name of their religion.
8.2.2007 6:11pm
scote (mail):


Re: sexual and religious, yes, it *is* so outrageous. Thanks for asking.


Why is it so outrageous when the sexual practices involved are sadomasochistic? They're in the DSM-IV-TR as paraphilias.

Nick

Not so fast, Nick. S&M isn't **automatically** a paraphilia.

According to the Diagnostic and Statistical Manual of Mental Disorders, the activity must be the sole means of sexual gratification for a period of six (6) months, and either cause "clinically significant distress or impairment in social, occupational, or other important areas of functioning" or involve a violation of consent to be diagnosed as a paraphilia.[3]

Note that many who would object to an S&M fan being a parent would also object to gays being parents, even though homosexuality **is not** a paraphilia in DSM-IV, so I don't think the DSM is really all that telling in this case.
8.2.2007 6:17pm
KeithK (mail):
Oren

In other words, I'm giving you two choices:

(1) Accept as legitimate the practice of judges imposing their own normative views of religious and sexual practices of the parties in their courts, even in situations where those views are in opposition to yours.

(2) Reject that authority and force judges to make their decisions on objective, factual grounds.

In the abstract I agree that option #2 is optimal. The problem is how do you objectively determine "best interests of the child"? There is no rational measure that we can objectively apply to determine this, it requires a subjective determination. Unless you used some simplistic proxy like income but I doubt many would agree that always giving custody to the parent with higher income was a good idea.
8.2.2007 6:28pm
Anderson (mail) (www):
Daniel San, I don't think it's the blogging per se that was a problem, but rather that the blogging described drug use ... and that Pagan Mom stated she was likely to use drugs in future. The drug use was the problem.

As for the DSM, how long ago were homosexuals considered mentally ill by psychologists, and listed therein? Spare me the witch-doctoring.
8.2.2007 6:28pm
Clayton E. Cramer (mail) (www):

As for the DSM, how long ago were homosexuals considered mentally ill by psychologists, and listed therein? Spare me the witch-doctoring.
So there's no problem awarding custody of the child to a paranoid schizophrenic? I mean, that's listed in DSM-IV--just more witchdoctoring.

Of course, there's lots of stuff that isn't considered a mental illness that would be grounds for refusing to grant custody.
8.2.2007 6:51pm
Clayton E. Cramer (mail) (www):
scote writes:

Note that many who would object to an S&M fan being a parent would also object to gays being parents, even though homosexuality **is not** a paraphilia in DSM-IV, so I don't think the DSM is really all that telling in this case.
No, it isn't. There's been at least one serious attempt to get the APA to remove pedophilia from the DSM as well. I wonder why?
8.2.2007 6:53pm
scote (mail):

So there's no problem awarding custody of the child to a paranoid schizophrenic? I mean, that's listed in DSM-IV--just more witchdoctoring

See my post above. S&M **isn't a paraphilia** unless it is "the sole means of sexual gratification for a period of six (6) months, and either cause "clinically significant distress or impairment in social, occupational, or other important areas of functioning" or involve a violation of consent"

So, it really isn't about the S&M but whether the person has "clinically significant distress or impairment in social, occupational, or other important areas of functioning"
8.2.2007 6:56pm
Hattio (mail):
JYLD,
I'm curious as to what jurisdiction you practice in? Family law is not my main area of practice, but I have dabbled in it. That each parent is free to choose the religious upbringing or lack thereof during their times of custody or visitation is a standard term of custody arrangements, whether worked out or determined by the court. I'm not denying the court has the authority, and probably uses it in some instances, just that it's pretty rare absent exceptional circumstances.
8.2.2007 7:00pm
Waldensian (mail):

while a number of regular commenters here will disagree, adults having sex with children is also inappropriate

Please name these commenters. There are, after all, a "number" of them.
8.2.2007 7:07pm
Waldensian (mail):

Most "mainstream" Wiccans, those who follow the religion in some way related to the orthopraxy laid out by its founder Gerald Gardner, perform religious ceremonies that according to the founder himself should not be visible to those not initiated and never to a minor. Initiations involve (gentle) scourging, most rituals are performed "skyclad" (nude), and the Hieros Gamos involves either real or symbolic ritual sex.

The sheer stupidity of most religious beliefs never ceases to amaze me.
8.2.2007 7:10pm
Waldensian (mail):

That each parent is free to choose the religious upbringing or lack thereof during their times of custody or visitation is a standard term of custody arrangements, whether worked out or determined by the court. I'm not denying the court has the authority, and probably uses it in some instances, just that it's pretty rare absent exceptional circumstances.

That's also been my experience.
8.2.2007 7:11pm
Roger Schlafly (www):
[PatHMV] But when the two parents disagree on how to raise the child and who should have primary physical custody of the child after a divorce, and they are both technically "fit" parents, and the judge HAS to decide which parent's custody is in the "best interest" of the child, I see no reason why the court shouldn't be able to look at the relative normalcy of the two parents' lifestyles.
Your premise is faulty. The judge never has to decide which of two fit parents is better. He can simply let the parents share custody equally.
[Daniel San] First Amendment rights give way in custody cases. ... Best interest trumps Constitutional rights.
If that's true, then no parent has any individual rights.
8.2.2007 7:21pm
Kazinski:
Shocking. It's amazing that a judge would actually take a candid admission that a parent likes inflicting pain on a partner while having sex, and decide that it reflects on their fitness as a parent.

I don't advocate taking children out of house where deviant sexual practices are present, but that is not what is going on here. The judge is specifically tasked with deciding which of the two households it is in the best interest of the child to be raised, why should he be handcuffed and not allowed to consider factors that actually do affect the best interests of the child? There is probably a constitutional right engage in such deviant sexual practices, or looney tunes religions, but there is not, nor should there be a constitutional requirement to give them the good housekeeping seal of approval.
8.2.2007 7:42pm
Eugene Volokh (www):
Hattio, Waldensian, Junkyard: Whether noncustodial parents are allowed to teach religious views that are contrary to the custodial parents' varies from state to state.

The trend is to hold that, given the First Amendment, religious teachings by parents (including teachings by noncustodial parents that are contradictory to the custodial parents' teachings) may not be restricted unless there's evidence the teachings are causing or are likely to cause substantial emotional harm to the child -- a more demanding standard than simply that the teachings are against the child's "best interests." But some cases take the opposite view, sometimes by specifically holding that the parent's First Amendment rights are trumped and sometimes by not discussing the First Amendment at all. See PDF page 18 of my article, and the cases cited in footnotes 77 and 78.

I suppose that at some point the Supreme Court would have to resolve at least this First Amendment issue, on which there's something of a split, but it hasn't done so yet.
8.2.2007 7:47pm
scote (mail):

Shocking. It's amazing that a judge would actually take a candid admission that a parent likes inflicting pain on a partner while having sex, and decide that it reflects on their fitness as a parent.

Imagine if the judge found out that many parents actually strip naked in full-view of each-other on a daily basis, or if the judge was to discover that they actually allowed on another to have non-procreative sexual congress in a manner not approved by Catholic missionaries? Don't those parents know that sex is wrong and that by even having discrete sex with one another while the kids are at summer camp they are teaching their children that sex is ok? Clearly parents who are sexually attracted to one another are sexual deviants unworthy of custody of their children.

If someone is mentally healthy and a good parent, then their private sexual fetishes are irrelevant.
8.2.2007 7:52pm
JunkYardLawDog (mail):
Hattio, I haven't done any family law in about 15 years, but when I did do some family law it was in Texas.

How about you? The rule you state sounds like what would be the case in a true joint custody situation where the parents share equally the parental powers such as the parental power to determine the child's religious training. My comments were listed to non-joint custody situations where the parental powers are not shared.

EV, People can freely contract away their first amendment rights. They do so every day with non-disclosure agreements, etc. If two people get married who share common religious beliefs and at the time the children are conceived have an expectation of teaching their religious beliefs to their children, and then one of the parties changes religious beliefs, in a divorce situation it would be of no constitutional implication at all if the court were to rule that the parent who changed beliefs after marriage and conception could not breach the marriage agreement that included teaching the children of the union the religious beliefs commonly held at the time of marriage and conception. The parties contracted away their free speech constiutional rights just like in an NDA.

Says the "Dog"
8.2.2007 8:10pm
anym_avey (mail):
If someone is mentally healthy and a good parent, then their private sexual fetishes are irrelevant.

You may have missed the details -- the mother had long since taken the discussion public on her own volition.
8.2.2007 8:16pm
Smokey:
Scote sez:
''If we took the 'morality' out of the laws we wouldn't have laws against covetousness or making graven images, instead we'd have laws prohibiting un-reasonable search and seizures and laws granting us a right to free speech. Ooopps...''
I only pointed out that I imagined how Founding Fathers would react to this discussion. The fact is, they based the Consitution on their straightforward idea of morality. It is only some people in later generations who are trying to get away from morality as the basis for law. There's a good reason to frown on covetousness, which always precedes theft [not sure what 'graven images' you're referring to].

Then:
''Oh, sure, you can argue that laws against gambling, murder and theft are laws against 'immoral' behavior, but when talking about the law and 'morality' we generally use morality to define things that aren't illegal but that we consider to be wrong on a 'moral' level, like being a lying scumbucket. So, generally, we don't encode 'morality' into our laws.''
Wrong. We use ethics when discussing things that may not be illegal, but might be reprehensible in society.

Dictionary definition of morality: n. Principles concerning the distinction between right and wrong, and good and bad behavior; the extent to which an action is right or wrong.

Morality is certainly the basis for our laws. Otherwise, there would be no right or wrong, and no good or bad behavior.
8.2.2007 8:28pm
Jon Rowe (mail) (www):
I only pointed out that I imagined how Founding Fathers would react to this discussion. The fact is, they based the Consitution on their straightforward idea of morality.

From my meticulous study on the Founding Fathers and religion, I think you are right that they thought (even the ones thought of as secularists like Jefferson) law, religion and morality go hand and hand. Yet, few people understand their concept of republican virtue is not quite biblical or even "judeo-christian." They believed all religions, and explicitly included pagan ones, taught the same morality as Christianity. Though Christianity had an edge because Jesus, whom they didn't believe to be God or the second person in the Trinity, was the greatest moral teacher the world had seen.

Most of their heterodox beliefs on religion were taken from their private letters (you didn't want to piss off the orthodox Churches back then; they could ruin your public reputation). Yet I was surprised to find the following homage to pagan religious morality from John in a publicly published book!


In this preamble he declares, that all those who shall inhabit the city, ought, above all things, to be persuaded that there is a God; and if they elevate their eyes and thoughts towards the heavens, they will be convinced, that the disposition of the heavenly bodies, and the order which reigns in all nature, are not the work of men, nor of chance; that therefore they ought to adore the gods, as the authors of all which life presents us of good and beautiful; that they should hold their souls pure from every vice, because the gods accept neither the prayers, offerings, or sacrifices of the wicked, and are pleased only with the just and beneficent actions of virtuous men. Having thus, in the beginning of his laws, fixed the attention of his fellow-citizens upon piety and wisdom, he ordains, above all things, that there should never be among them any irreconcilable enmity; but, on the contrary, that those animosities which might arise among them, should be only a passage to a sure and sincere reconciliation; and that he who would not submit himself to these sentiments, should be regarded as a savage in a civilized community. The chiefs of his republics ought not to govern with arrogance nor pride; nor should the magistrates be guided in their judgments by hatred nor by friendship.

This preamble, instead of addressing itself to the ignorance, prejudices, and superstitious fears of savages, for the purpose of binding them to an absurd system of hunger and glory for a family purpose, like the laws of Lycurgus, places religion, morals, and government, upon a basis of philosophy, which is rational, intelligible, and eternal, for the real happiness of man in society, and throughout his duration.


Adams categorizes the laws of ZALEUCUS as part of "religion, morals, and government, upon a basis of philosophy, which is rational, intelligible, and eternal, for the real happiness of man in society, and throughout his duration." Those laws were supposedly revealed to Zaleucus in a dream by Athena 600BC. Similarly Lycurgus, the father of Sparta supposedly descended from Hercules.

This isn't just Adams who believed stuff like this -- the key Whig Founders -- Washington, Adams, Jefferson, Madison, Franklin, Hamilton, G. Morris, etc. likewise believed very similarly.
8.2.2007 9:31pm
Roger Schlafly (www):
JunkYardLawDog, no contract can force anyone to maintain religious beliefs. Even if the parents agreed to raise the child with their faith at the time of the marriage, they never agree that loss of child custody is an appropriate remedy for failure to maintain that faith.

If it is really good and proper to force parents to stick to their original religious intentions, then let's register those religious plans on the marriage certificate, and enforce them on all parents, whether divorced or not. But nobody wants that for obvious reasons.
8.2.2007 9:42pm
Anderson (mail) (www):
why should he be handcuffed

No, no, Kazinski -- that's the MOM, not the JUDGE.
8.2.2007 10:07pm
ReaderY:
The conduct described is conduct, not speech. Obviously the judge disagrees with the idea that such conduct is not harmful to children. Why should your beliefs about what is good for or bad for children prevail?

Suppose a judge made a custody decision because of the parent's affect on the children's performance in school. What would be the difference? Shouldn't parents have a first Amendment right to determine their children's education? You may believe that good to school is good for children, but I don't see how could you prove that proposition any more than the other.
8.2.2007 10:48pm
ReaderY:
Sorry, that's going to school.

I want to stress this point: the idea that education is a good thing is based, ultimately, on a value judgment no more inherently rational than the idea that sadomasochism is a bad thing. Some may prefer a dissatisfied Socrates, others will choose the life of the satisfied pig.
8.2.2007 10:50pm
Lucid Nebula (mail) (www):
This case is precisely the reason we need to have a president (probably a Republican one) to appoint Judge Michael McConnell to the Supreme Court. Ones who defend the court's decision today can be understandable in terms that they adhere to Scalia's interpretation of the First Amendment.
8.2.2007 11:48pm
JunkYardLawDog (mail):
Roger Schlafly (www):
JunkYardLawDog, no contract can force anyone to maintain religious beliefs.

Not quite what I said. I said the contract can be justification for awarding custody one way or the other and it can be justification for an order to one parent not to discuss those religious beliefs or non-beliefs in certain ways or manner with the child during visitation periods.

Even if the parents agreed to raise the child with their faith at the time of the marriage, they never agree that loss of child custody is an appropriate remedy for failure to maintain that faith.


Maybe they did and maybe they didn't. The court would take testimony of witnesses on these matters and their importance to the marriage contract. When a custody decision has to be made by a court they have to decide on some basis. This could well be one factor in the decision. It would be an appropriate factor and an important factor in absence of other factors.

If it is really good and proper to force parents to stick to their original religious intentions, then let's register those religious plans on the marriage certificate,

Nothing wrong with that requirement, but isn't necessary to establish what those intentions were. Testimony of witnesses and the parties themselves could establish same.

and enforce them on all parents, whether divorced or not.

Parties who are still married and in an intact marriage relationship can agree to amend their prior agreements. Such agreement is expressed by what they do and say. There is no need for enforcement of anything. Its only when the parties are divorced/divorcing and by definition don't agree to changes that a court becomes involved and/or their is a need for enforcement.

But nobody wants that for obvious reasons.

Yes finally we agree on something, and one of those obvious reasons is that they aren't getting divorced as opposed to parents who are getting divorced.

Says the "Dog"
8.2.2007 11:49pm
arbitraryaardvark (mail) (www):
Kink, bisexuality, paganism, some drug use, blogging? On the internet, or the bay area, these are mainstream. There is some cultural tension between the worldviews of (I'm guessing) elderly white male rural ohio judges, and the internet-savvy world a 4 year old kid is growing up into.
This culture clash comes up in the context of internet porn prosecutions. What is the relevant community for community standards; one's online peers, or the people of a small town somewhere where standing can be established?
8.3.2007 12:02am
Dave Hardy (mail) (www):
Kink, bisexuality, paganism, some drug use, blogging? On the internet, or the bay area, these are mainstream.

And in the mental unit at Kino Hospital, they might even be considered conservative. Neither comes much of an endorsement. And in the long term neither can hold a civilization without a lot of rural Ohio types who, well, can actually make things function and defend the others.

Blogging, flogging -- I'd work up a limerick but I have writer's block.
8.3.2007 12:22am
Ken Arromdee:
You may have missed the details -- the mother had long since taken the discussion public on her own volition.

Did she? She had a blog. It's true that anyone could in theory read the blog, but that's because of how the Internet works; she would *expect* that the blog would mainly be read by her friends and people interested in the topic. The children aren't really part of the audience for the blog, even though they can still type anything into a browser URL bar.
8.3.2007 12:36am
Roger Schlafly (www):
[Dog]The court would take testimony of witnesses on these matters and their importance to the marriage contract. When a custody decision has to be made by a court they have to decide on some basis.
No, the court never has to choose one religion over an another. If the court is asked to make a custody decision, it can simply leave the parents with joint custody, and let them teach whatever they wish.

Even when a judge favors one parent in a custody decision, it almost never pays any attention to which parent did a better job of adhering to his or her original marriage vows. Maybe the court should look at those marriage vows, but you'd have to change the law in California and other states.
8.3.2007 1:36am
scote (mail):
Smokey writes:

Morality is certainly the basis for our laws. Otherwise, there would be no right or wrong, and no good or bad behavior

This is a non sequitur. "Morality" is the inspiration for a number of laws, but our concept of right and wrong does not derive from the laws. To think that morality==laws is nonsense. If that were true, then it would be **immoral** to ride a motorcycle without a helmet rather than just illegal. Also, if you are going to contend that laws==morality you will have to explain the extreme relative morality of our patchwork of Federal, State, County and City laws. Apparently, what is "moral" depends on exactly where one is standing rather than on what one is doing.


''Oh, sure, you can argue that laws against gambling, murder and theft are laws against 'immoral' behavior, but when talking about the law and 'morality' we generally use morality to define things that aren't illegal but that we consider to be wrong on a 'moral' level, like being a lying scumbucket. So, generally, we don't encode 'morality' into our laws.''

Wrong. We use ethics when discussing things that may not be illegal, but might be reprehensible in society.

Dictionary definition of morality: n. Principles concerning the distinction between right and wrong, and good and bad behavior; the extent to which an action is right or wrong.

The definition you provided supports my premise not yours. We can use the word ethics and/or morality to discuss things that are not illegal but might be "wrong" anyways.

ethic |ˈeθik| noun [in sing. ] a set of moral principles, esp. ones relating to or affirming a specified group, field, or form of conduct : the puritan ethic was being replaced by the hedonist ethic.

Cheating on your girlfriend is not illegal but it is immoral. It is illegal for US Citizens to buy and smoke Cuban cigars even while outside of the US where they are legally sold but it isn't immoral. Laws and morality are not interchangeable.
8.3.2007 6:15am