37 Pages Posted: 23 Dec 2008 Last revised: 29 Oct 2010
Date Written: December 22, 2008
Despite its grounding in a specific and peculiar set of facts, the strict scrutiny mandate of Wisconsin v. Yoder (decided in 1972) has changed the constitutional landscape of custody cases - and it has done so in a way that is unsound both as a matter of law and policy. Following Yoder, most courts require a showing of harm to the child, or a substantial threat of harm to the child, before placing any restrictions on exposure to a parent's religious beliefs and practices. This harm standard leaves children in an untenable position when parents compete for "spiritual custody," for the law can protect them only when the risk of harm is already substantial. Indeed, the bar is set so high that few courts have found circumstances that satisfy the harm standard. In this essay, I argue that a strict scrutiny standard has no place in spiritual custody cases. It is hardly consistent with the basic principle that the custody court's paramount consideration is the best interests of the child. In fact, such a standard actually leaves the child unprotected from the very injuries deemed sufficient to justify judicial intervention in cases not involving religious matters.
Religious parenting rights enjoy immunity from customary family law considerations because such rights are not subject to the rule, stated most clearly and emphatically in Employment Division, Department of Human Resources of Oregon v. Smith, that application of a neutral, generally applicable law to religiously motivated conduct is not barred by the Free Exercise Clause. Spiritual custody cases implicate fundamental rights under both the Free Exercise Clause and the Due Process Clause of the Fourteenth Amendment; that is, they present a "hybrid situation," a kind of case where, peculiarly, the whole is greater than the sum of its constitutional parts, and for which strict scrutiny is somehow warranted. (In other hybrid situations, the free exercise right is joined to a fundamental protection already subject to strict scrutiny. In religious parenting cases, the parenting right is not necessarily a fundamental one.) In Smith, the Court discussed the hybrid rights situation as an exception to general constitutional principles. But in the universe of religious parenting cases, the exception easily swallows the rule. Because such cases are hybrid by definition, strict scrutiny becomes the norm, and the result is the creation of a separate sphere of the law where the government's ability to enforce generally applicable law (in spiritual custody cases, to consider the best interests of the child) is subject to an individual's religious beliefs. In that sphere, the law grants the religiously motivated parent a special constitutional privilege greater than those awarded separately under the Free Exercise Clause or the Due Process Clause, a privilege that generally trumps any countervailing interests of the state or rights of the child.
In Part I, I examine how custody courts employ the hybrid rights doctrine, tracing how the idiosyncratic facts of Yoder encouraged the Supreme Court to abandon well established law governing the right of religious parenting and to formulate a strict scrutiny standard ill-adapted to the existential intricacies of family disputes. In Part II, I argue that the Yoder standard fails to protect the child from harms routinely addressed in cases involving only secular matters. More specifically, I am concerned with the issue of parental alienation, the (sometimes subtle, often not) ways in which one parent may seek to turn a child against the other parent. Sensitive to the need to nurture a child's relationship with both parents, and averse to any behavior that causes alienation, custody courts commonly prohibit each parent from making disparaging remarks about the other, and they do so without subjecting such measures to the heightened scrutiny demanded by a showing of harm. Penalties for subverting this judicially mandated obligation of tolerance can be severe, including modification of custody arrangements. But toleration gives way to individual rights where disparagement is religiously motivated. The harms to the child do not change. Indeed, the kind of disparagement that bears the imprimatur of religious doctrine may be far more terrifying than a parent's personal verbal rampages. What changes is the deference courts show to the parent's claim of constitutional rights. Under the harm standard, most courts treat religious disparagement as though it were mere abstract advocacy, ignoring the coercive nature of religious beliefs (children are caught between competing moral commands) and the coercive familial context in which such speech occurs (children are caught between competing parental commands).
Judicial non-intervention amounts to little more than a way of not dealing with such cases - or, at least, of not dealing with such cases until it is too late for the child. To honor its fiduciary obligation to the child, the court must be able to consider any practice that could affect the general welfare of the child and to insist upon an appropriate form of civil discourse when religious views diverge. Where exposure to intolerance is not in the best interests of the child, the welfare of the child requires that those responsible for their upbringing observe, or be made to observe, the boundaries of socially appropriate behavior. The duty to respect those with whom one disagrees is a civic obligation for which parents must prepare their children. It is the necessary concomitant of the parenting right. Religious belief should not absolve parents of this obligation, and disparagement born of religious conviction should not get a constitutional pass from judicial scrutiny.
Keywords: constitutional law, law and religion, first amendment, family law
Suggested Citation: Suggested Citation
Shulman, Jeffrey, What Yoder Wrought: Religious Disparagement, Parental Alienation and the Best Interests of the Child (December 22, 2008). Villanova Law Review, Vol. 53, p. 173, 2008; Georgetown Public Law Research Paper No. 1319366. Available at SSRN: https://ssrn.com/abstract=1319366