A divorced couple’s irreconcilable differences make what seems a very bad occasion for legal decisions with serious First Amendment implications. But that’s what we have in the June 2009 New Hampshire family-court decision In re Kurowski & Voydatch.
The libertarian law-professor and polymath Eugene Volokh summarizes the situation well: “The 10-year-old daughter lives during the week with her mother, Ms. Voydatch, who homeschools her. The father, Mr. Kurowski, objected to the homeschooling, and the court adopted the father’s proposal that the girl be sent to public school.” The court’s declared reasons were, apparently, these:
[The daughter] appeared to reflect her mother’s rigidity on questions of faith. [The daughter] challenged the counselor to say what the counselor believed, and she prepared some highlighted biblical text for the counselor to read over and discuss, and she was visibly upset when the counselor (purposely) did not complete the assignment. . . .
The Guardian ad Litem . . . concluded 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. . . .
[T]he Guardian ad Litem [also] echoed her previous concerns that Amanda’s relationship with her father suffers to some degree by her belief that his refusal to adopt her religious beliefs and his choice instead to spend eternity away from her proves that he does not love her as much as he says he does. . . .
[T]he Court is guided by the premise that education is by its nature an exploration and examination of new things, and by the premise that a child requires academic, social, cultural, and physical interaction with a variety of experiences, people, concepts, and surroundings in order to grow to an adult who can make intelligent decisions about how to achieve a productive and satisfying life.
The parties do not debate the relative academic merits of home schooling and public school: it is clear that the home schooling Ms. Voydatch has provided has more than kept up with the academic requirements of the [local] public school system. Instead, the debate centers on whether enrollment in public school will provide [the daughter] with an increased opportunity for group learning, group interaction, social problem solving, and exposure to a variety of points of view. . . . [T]he Court concludes that it would be in [the daughter’s] best interests to attend public school. . . .
The judge, Lucinda V. Sadler, insists she was not deciding the question of the truth of the daughter’s religious views:
In reaching this conclusion, the Court is mindful of its obligation not to consider the specific tenets of any religious system unless there is evidence that those tenets have been applied in such a way as to cause actual harm to the child. The evidence in this case does not rise to that level, and therefore the Court has not considered the merits of [the daughter’s] religious beliefs, but considered only the impact of those beliefs on her interaction with others, both past and future. The Court declines to impose any restrictions on either party’s ability to provide [the daughter] with religious training or to share with [the daughter] their own religious beliefs.”
The Alliance Defense Fund has more information on the case, but consider just the court’s disposition, on its own terms: Without any expert testimony as to whether the status quo was causing “actual harm” to the child—the standard, applicable criterion for deciding in favor of change in such cases—Judge Sadler decided that the daughter’s best interests were served by removing her from an academically sound home-schooling regimen with the mother and placing her in the public-school setting preferred by the father.
And the sole reason given was that the “rigid” religious beliefs of the mother and daughter negatively affected the latter’s “interaction with others, both past and future,” thus calling for the daughter’s presumptively therapeutic exposure to “different points of view” in the public-school system.
OK, so an alternative education, which the judge herself admits has not been shown to cause “actual harm” in the legally relevant sense, is deemed actually harmful in a legally relevant sense. But it’s almost incomprehensible why a judge would say, in the same breath, that her judgment does not concern the “merits” of the “religious beliefs” held by mother and daughter. If the content and strength of the beliefs are deemed harmful to the daughter, then it is precisely the merits of the beliefs which have been found wanting.
When that much logical and conceptual incoherence infects a judge’s stated reasoning, it’s usually a safe bet that the real reasoning is unstated—much clearer in itself, and more alarming than mere incompetence. One needn’t look far to find it in this case.
“The decision strikes me as constitutionally troublesome, whether implemented in broken families or in intact families,” Volokh writes. “It may well be in the child’s best interests to be exposed to more views in public school—or it may well be in the child’s best interests to avoid the views that public school will expose her to. Those are not judgments that courts should generally make given the First Amendment.”
Nonetheless, the court has made just such a judgment in this case. The judge opined that the daughter’s rigid religious beliefs vitiated her social interaction with her father, other adult authorities, and her peers. That dogmatism (religious or otherwise) is sometimes harmful to children is not in dispute. That religious dogmatism can, on rare occasion, harm children in a legally actionable way is not in dispute either: Consider the resistance of Jehovah’s Witnesses to blood transfusions for their sick children, or the marriage of underage girls to leaders of polygamous cults.
What’s so troubling here is that the judge is counteracting a form of religious dogmatism with the full force of the state despite the judge’s admission that no legally recognized form of actual harm could reasonably be attributed to the dogmatism.
Apparently, when a house is divided by religion as well as by divorce, the state gets to decide that enforced pluralism is better for the children than a religious dogmatism deemed harmful merely because it divides. But, then, of course, the father’s demand for public schooling, which the court chose, divides the household just as much. This decision cannot be allowed to stand.
September 3rd, 2009 | 9:59 am
The court failed to comment that the father has every opportunity on weekends to advocate for his point of view. It also failed to establish any difference between Christian homeschooling and parochial/ private schooling connected with any particular religious commitments. This decision (by a judge who did not appear to treat the matter lightly) which clearly demonstrates the dangers of “a house divided” has, if expanded in its scope, ominous implications for freedom of religion.
September 3rd, 2009 | 12:07 pm
What about children who have only attended public school their whole lives? They need ‘therapeutic exposure to “different points of view”’ too. Perhaps the judge will now start redistributing public school kids to private and parochial schools, or forcing parents to homeschool. Ah, but of course only public school is truly diverse in the points of view it presents to children.
September 3rd, 2009 | 12:28 pm
This case seems to me to be more anti-homeschooling than anti-religion, although the two aren’t unrelated.
The ostensible, and highest, concern of the court seems to be the girl’s relationship with her father (and, by extension, others). The hope being, apparently, that if she is exposed to a “broader” environment, she will then be more likely to “accept” her father and have a “better” relationship with him. “…the Court has not considered the merits of [the daughter’s] religious beliefs, but considered only the impact of those beliefs on her interaction with others, both past and future.” According to the FoxNews report, the decision seems to have hinged on the guardian ad litem’s finding that the girl is isolated, despite the fact that she is involved in activities outside of her home and apparently gets along well with her peers.
It seems as though the court is trying to give the father more “say” in order to “even up” the girl’s relationship with her parents, even though she’s in primary custody of her mother. Obviously there are many competing interests here, and not a little manipulation, though they may well have, or think they have, the girl’s and her parents’ best interests at heart.
September 3rd, 2009 | 1:07 pm
[...] Bottum, writing at First Things: “A divorced couple’s irreconcilable differences make what seems a very bad occasion for [...]
September 3rd, 2009 | 2:42 pm
Perhaps the court was merely parroting arguments made by the father — that the ‘exposure to different points of view’, etc. was just a wishy-washy, politically correct way of saying that he felt the mother was was simply wrong and brainwashing his daughter.
Though he is not the custodial parent, I assume the father does not forfeit all parent rights (as I also assume he bears substantial legal responsibility for supporting the child.)
The idea that court can usurp parental rights when no actual or potential harm is shown is chilling, but in this case it might be that despite the muddled reasoning the court is being forced to select one parent over the other.
September 3rd, 2009 | 3:31 pm
“T]he Guardian ad Litem [also] echoed her previous concerns that Amanda’s relationship with her father suffers to some degree by her belief that his refusal to adopt her religious beliefs and his choice instead to spend eternity away from her proves that he does not love her as much as he says he does. . . .”
Oooh, and she’s simply going to ADORE Daddy after she’s been dragged around the local public school for a week or two. Anyway, it’s a preposterous decision: without testimony of actual harm, the court has no business taking sides in the case at all. If Pop is so dead set against home teaching he can damn well shell out for a good private school. A term or two of that would in all probability reconcile him to homeschooling.
September 3rd, 2009 | 4:19 pm
It is an absurd decision, and clearly motivated by antipathy for the “unenlightened” views of the mother. Would the court order exposure to a carnivorous philosophy to balance a vegetarian mother’s rigid diet? Or tell a mother with anti-war beliefs that public education and exposure to patriotism would benefit the child? Absent a show of harm to the child, this is Big Brother government in its most insidious form.
September 4th, 2009 | 9:25 am
Clearly I’m in the minority in thinking that there might be a justification for this ruling, so my question to the rest of you is, does a non-custodial parent forfeit all parental rights? Can the father have any say in the upbringing of his daughter? Would you feel the same way if it were a Muslim fundamentalist father keeping his daughter out of the public school?
This is hardly Big Brother. The court did not seek this out and I’m sure they would have been happy if the parents worked out an accord on their own, but being forced to choose sided with the non-custodial parent.
September 4th, 2009 | 4:43 pm
Jim – fair question. As I have read the facts, this was not court intervention to resolve a dispute between parents over competing religious views, in which case a court must necessarily get involved. Rather, it was based on the father’s view that the child needed more “socialization.” The court found that the child was, indeed, well-socialized and academically advanced. Despite that, the court opined that it would be beneficial for the ten year old child to break out of her distressingly narrow exposure to religion and experience other views. The Big Brother aspect is not with a court breaking an impasse, but rather the reasoning that carried beyond the immediate question into “we know what’s best for your child.” I would feel the same way if the court did this to a Muslim parent.
September 9th, 2009 | 12:12 am
I’ve looked far and wide to find out what Mr. Kurowski’s religious views are. Living as I do in a predominately Polish farming community in WMass, I’ll say it’s a safe bet the plaintiff also happens to be a Catholic. Imagine that, a staunchly evangelical mom who homeschools her daughter, and turns her into a veritable evangelical witnessing machine, as we saw with Amanda’s dealings with the guardian ad litem no less following the petition filed by her ex to get the girl placed in a public school where she wouldn’t be so rigidly programmed. Am I alone on this? Hope not. After all, not all evangelical Protestants have proved to be as open as those supporting the late Fr. Neuhaus’ Evangelicals & Catholics Together movement. Those who don’t, and there are quite a few here in New England who abhor this movement and the very idea of considering Catholics being genuine Christians. And by the way, why has there been little mention of the step-dad’s possible influence here. Moreover, when Mr. Kurowski, according to Voydatch’s attorney John Simmons’ counter arguments went to church with Amanda and was said to be profoundly put off by what he witnessed. The vast cultural and liturgical differences between Catholicism and contemporary (hard-wired) evangelical Protestantism might have anything to do with that; right? No wonder the plaintiff’s eager to put her in a public school to broaden her outlook. After all, notwithstanding all the snide jokes about Catholicism’s stodgy ways, the Faiith Christ directly left us has far less to answer for when it comes to stunting a person’s overall outlook without risking the loss of his or her faith. Maybe these Protestants have an issue with dreading sense that their own faith would somehow be didiminished if they so much allowed this girl the slightest wiggle-room for expanding her mind beyond whatever Scripture assignment and tract memorization tasks she’s assigned Amanda. In that case, Mr. Kurowski’s petition is the least of her problems.
September 9th, 2009 | 12:15 am
(Please forgive my typos and spelling errors at this late hour.)
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