Sunday, May 29, 2005
Eugene Volokh reports on a surprising case out of Indiana: According to a local newspaper, "[a]n Indianapolis father is appealing a Marion County judge's unusual order that prohibits him and his ex-wife from exposing their child to 'non-mainstream religious beliefs and rituals.' The parents practice Wicca, a contemporary pagan religion that emphasizes a balance in nature and reverence for the earth." Volokh reports, "[i]f the order is as reported, then it's a blatant violation of the Free Speech Clause (because it's a speech restriction), the Free Exercise Clause (because it singles out religion for special restriction), the Establishment Clause (because it prefers some religions over others, and requires the court to decide what's a 'mainstream' religion), and likely the Equal Protection Clause (because the order discriminates based on religion) and the Due Process Clause (because of the order's vagueness) as well."
Things get even more interesting: Apparently, the Domestic Relations Counseling Bureau argued that "[t]here is a discrepancy between Ms. Jones and Mr. Jones' lifestyle and the belief system adhered to by the parochial school. . . . Ms. Jones and Mr. Jones display little insight into the confusion these divergent belief systems will have upon (the boy) as he ages,' the bureau said in its report."
A few thoughts: First, why are the Jones's sending their son to a "parochial" school? Second, why did the pastor of the relevant parish admit a student whose parents' "practice Wicca"? Third, it is obviously unconstitutional, under the relevant doctrines, for a judge to order parents not to expose their child to their own beliefs -- particularly in a case like this one where, it appears, the parents do not disagree about the content of the beliefs to which they want to expose their children. Fourth -- and perhaps more controversially, those who criticize this case should not jump too quickly to criticize the Bureau's observation that the "confusion" the Joneses are imposing on their son might well not be in the child's best interests. (To be clear: The Joneses misguided parenting decisions do not, in my view, authorize this order). That is -- who are we kidding? -- it seems likely that by sending a young child to a parochial schools (which is, I hope, exposing the child to Christianity), and then practicing "Wicca" at home, the Joneses are not acting in the best interests of their son.
The bigger-picture question: This case brings to the surface three bedrock premises of present-day First Amendment doctrine, namely, that government officials lack the power and competence to inquire into the merits -- or the pedigree -- of religious traditions and beliefs; that the government is required to act "neutrally" with respect to any particular religion (that is, no particular "religion" may be treated worse than any other); and that "religion", within the meaning of the First Amendment, is an expansive concept, including pretty much any set of beliefs that are important to those who hold them. Are these premises convincing? Do they make sense? Do we embrace them because they are right, or because they are essential to a legal framework that, while not perfect, works pretty well in protecting religious freedom and limiting government, or for some other reason?