Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, September 10, 2009

McGurn on the New Hampshire case

I blogged a few days ago about (what I think is) a disturbing family-law opinion, written by a judge in New Hampshire.  Bill McGurn has an interesting op-ed, here, about the case, and also about a case in Florida, in which a state court is "considering what to do with 17-year-old Rifqa Bary. Miss Bary fled to Florida from Ohio a few weeks back, where she sought refuge with a Christian couple whose church she had learned about on Facebook. She says she ran away from home because her father discovered she'd become a Christian—and then threatened to kill her. On Thursday, Circuit Judge Daniel Dawson ordered the girl and her family to try mediation and set a pretrial hearing for the end of the month."

I read a few things in which it was suggested that a consistent commitment to religious liberty and parents' rights required those who were troubled by the New Hampshire decision -- or, more precisely, its reasoning -- to side with Rifqa Bary's father.  I don't see it (assuming, for present purposes, that Ms. Bary is telling the truth about her father's threat).  It is not the business of the public authority to override a fit parent's decisions about religious education; it is the business of the public authority to protect children from potentially lethal violence by angry parents.  Thoughts?

UPDATE:  My colleague Cathy Kaveny has a different view of the New Hampshire case.  In response to her post, I wrote, in the comments:

As Cathy and I discussed, it is clearly the case that the context of the court's opinion -- that is, a dispute regarding custody arrangements -- complicates matters.  In this context, courts often have to make decisions about matters that, as a general matter, are probably not courts' business.  What is (to me) troubling about the court's decision is the fact that the court concedes that the child is being educated in accord with the relevant standards and that the mother is a fit parent, but nonetheless endorses the conclusion that "the daughter would be best served by exposure to different points of view at a time in her life when she must begin to critically evaluate multiple systems of belief and behavior and cooperation in order to select, as a young adult, which of those systems will best suit her own needs."  To me -- and again, I agree with Cathy that the familial-dispute context complicates matters -- this line of reasoning is worrisome, and in tension with religious liberty, even if it were operating merely as a default theory of education.  (There is also the different question whether this default theory of education really is attractive, on the merits.)


Garnett, Rick | Permalink

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