Margaret F. Brinig, Children's Beliefs and Family Law

• Publication year: 2008

CHILDREN'S BELIEFS AND FAMILY LAW

Margaret F. Brinig^*

Justice Stevens wrote for the majority in Elk Grove Unified School District v. Newdow,¹the case deciding that a noncustodial father did not have standing to challenge the words "Under God" in the Pledge of Allegiance.²Early on, the opinion noted that the school child did have religious views:

[The mother] further stated that her daughter is a Christian who believes in God and has no objection either to reciting or hearing others recite the Pledge of Allegiance, or to its reference to God. [The mother] expressed the belief that her daughter would be harmed if the litigation were permitted to proceed, because others might incorrectly perceive the child as sharing her father's atheist views.³

While on its face this statement may not be remarkable, and the Court's eventual holding that the child's and father's views might well conflict may be understandable, the deference to the child's religion is unusual because she was in kindergarten at the time the lawsuit was filed in 2000.⁴In other words, the Court was writing about a young child, whose First Amendment abilities have not traditionally been recognized, and noted that her beliefs need to be considered. The Court concluded:

This case . . . implicates the interests of a young child who finds herself at the center of a highly public debate over her custody, the propriety of a widespread national ritual, and the meaning of our Constitution.

. . . In marked contrast to our case law on jus tertii, the interests of this parent and this child are not parallel and, indeed, are potentially in conflict.⁵

Roe v. Wade⁶can be read, and indeed was so read by Justice Stevens in a later case,⁷as avoiding making a decision in derogation of the pregnant woman's constitutional right to exercise her moral or religious choice. Is Newdow, then, abandoning children to their rights, as Bruce Hafen put it thirty years ago?⁸In other words, does the opinion imply that neither the state nor the noncustodial parent should speak for the child? Or should children's religious rights be considered not independently from their parents' but only when they agree with one parent's rights and collide with the other's rights? A similar argument for the child's independent First Amendment right was made by Justice Douglas, dissenting in part in Wisconsin v. Yoder,⁹the compulsory education case involving exceptions for Amish teenagers. Justice Douglas wrote:

The Court's analysis assumes that the only interests at stake in the case are those of the Amish parents on the one hand, and those of the State on the other. The difficulty with this approach is that, despite the Court's claim, the parents are seeking to vindicate not only their own free exercise claims, but also those of their high-school-age children.¹⁰

This Essay attempts to answer the three questions about children's religious interests posed in the preceding paragraph, concluding that while focusing on children's religious beliefs is appropriate and potentially important to the child, the child's beliefs should rarely be considered independently from the child's parents' beliefs.

One way to handle the problem of children's rights, religious or not, is to view them entirely as related to their parents' rights, or at least as presumptively identical with their parents' rights. For example, in economist Gary Becker's A Treatise on the Family,¹¹the altruistic parent considers the child's utility as a function of his own.¹²This seems to be the way the Court

(though not using economic terms) dealt with children in Parham v. J.R.,¹³in which the Court considered whether parents could voluntary commit their children to mental hospitals:

The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children.¹⁴

Similarly, children have historically been seen as having identical derivative (or subsumed) rights that eventually split off from their parents' rights, reaching full bore at emancipation.¹⁵This view might be reflected in the presumptions on the admission of children's testimony¹⁶or their inability to commit crimes.¹⁷Older children, even more than the viable fetus, obviously do have independent rights that touch on moral choices. They may, for example, display armbands protesting wars,¹⁸obtain information on contraceptives,¹⁹and even, when mature or when it is found by a judge to be in their best interests, obtain legal abortions without their parents' consent.²⁰

Catholics have long believed that children who attend Catholic schools are more apt to remain Catholic for life and to contribute more to the Church.²¹

But whether what matters is the development of a personal faith, an introduction to a Catholic peer group, or the exposure to the Catholic tradition is less obvious. There is obviously some interaction between the religiosity of parents (the more religious of which are presumably more likely to be interested in a sectarian education) and the development of the child as well. Likewise, whether for all children we are talking about an independent growth of the child's faith, a reflection of the parents' faith, or some combination of the two, remains a puzzle.²²

In at least some custody battles-those between parents of different religious preferences where at least one of them cares about religion-it is critical for courts to determine the child's religion. A parent-child conflict will be particularly acute in cases where divorcing parents hold strong-and potentially opposing-religious beliefs, as was the case in Newdow.²³In fact, I have found in a study of Iowa divorces that there was a statistically significant relationship between parents who decided religion was important enough to mention in their separation agreements and those who divorced on fault grounds,²⁴though these religiously oriented couples did not continue to litigate following divorce.²⁵

Reported conflicts about visitation often center on religion itself or disciplinary views strongly colored by religious views.²⁶In Baker v. Baker,²⁷for example, the mother was Baptist and the father was a Jehovah's Witness. The court originally awarded the mother custody. Both parents were taking the children to their respective religious services and training, and each was attempting to undermine the religion of the other. At trial, the mother petitioned for, and won, affirmation of her exclusive right to determine the children's religious upbringing, based on the physical and psychological effects the conflict was having on the children.²⁸In another visitation case, Brown v. Szakal,²⁹the court refused to order the non-Jewish father to observe the Sabbath and keep kosher when he visited his seven- and nine-year-old daughters. The court found that "absent a showing of emotional or physical harm to the children, courts . . . will not impose upon the non-custodial parent the burden of policing the religious instructions of the custodial parent."³⁰A third-party-visitation case that involved a conflict over discipline (with a belt) is Newman v. Phillips,³¹in which relationships with the grandparents were fairly close and cordial until the attempted discipline.³²

I am not one to suggest that the Supreme Court ought to be more involved with family law than it has been since the substantive due process days of Meyer v. Nebraska³³and Pierce v. Society of Sisters.³⁴I am also not one to "abandon children to their rights"³⁵or otherwise suggest that children should fend for themselves without their parents' help. For me, a childhood without the nurturing environment of loving parents (or at least one parent) is a dismal prospect.³⁶However, I am encouraged that the Court seems to recognize that, in families with children, the children's interests do need to be considered and will not always mirror their parents' interests. But the legal system does not have a good way of handling such conflicts. As Carl Schneider put it:

Both the child's parents claim a right to make decisions for their child. And the children arguably have some kind of right to assert their own preferences. Yet, while our vocabulary of rights has ample ways of resolving conflicts between an individual right-holder and the state, it has no way of resolving such conflicts between rights holders.³⁷

In any event, whether courts ultimately can take them into account or not, do children's independent religious beliefs matter? Do they matter in ways that affect behavior or core feelings about themselves? Which matters more, the parents'...