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.
