i read an op-ed over at the LA Times recently by Eugene Volokh, and it really set me to thinking. Here's the gist of the opinion, quoted from the article:
If the rule is really "children's best interests above all," these results may make sense. Say a dying friend asked you to choose a custodian for his children. Wouldn't you reject candidates who would teach the children harmful ideas, whether racist, pro-terrorist or, depending on your views, pro- or anti-homosexuality?
But the question, which few courts have grappled with, is whether judges, using government power, are allowed under the 1st Amendment to make such decisions. A family court judge is a government official, bound by the Constitution. Orders mandating or forbidding certain kinds of speech pose serious 1st Amendment problems. So does allocating civil rights, such as the right to spend time with one's child, based on a person's speech.
But does the 1st Amendment mean something different when it comes to parent-child speech, especially when the parent is divorced? On the one hand, children are immature and less able to resist their parents' ideological excesses. There may be special reasons to protect children from parental teachings that harm their best interests.
On the other hand, parental self-expression rights are especially important. Many people would trade all their free-speech rights for the right to teach their own children. And government power to constrain how parents teach their own children is dangerous: Restricting the spread of ideas from parent to child can help today's majority, or today's elite, entrench its views for future generations. Also, the power to suppress parents' speech may not stay limited to broken families but might spread to intact families too.
I think the 1st Amendment should impose some constraint here. The Supreme Court has recognized that the equal protection clause bars courts from considering a parent's interracial remarriage in the "best interests" analysis, even when the remarriage might have led to social trouble for the child. Some state courts have likewise barred judicial consideration of parents' religious teachings, at least unless imminent physical or psychological harm to the child is shown.
The same should be done for parents' ideological teachings. Such "harm" standards are themselves often subjective, but at least they are better than letting judges routinely decide when a parent's ideological teachings are against a child's best interests.
All this having been said, of course situations like Mujahid Daniel's and Mujahid David's remain troubling. Should children be exposed to a jihadist philosophy that may lead them into crime, violence and war against our nation — which could be fatal for them as well as bad for us? Even if their father hadn't been a felon, might his teachings still have been so dangerous that we should protect his children from them?
However we answer these questions, we should remember that the rules courts make don't just apply to jihadists. Any parent whose views may be seen by some as against the child's best interests — because the parent is atheist, intolerant, pro-gay, anti-gay or whatever else — could find a judge curtailing his parental rights and his speech rights.
The spark for this story is the decision in a divorce case to censor the father's ability to speak to the children about his religious beliefs. The father is described as following a quasi-Muslim philosophy, being very jihadist, and exhorting his children to remember their duties as good soldiers. Clearly, the kids need to be shielded from that sort of thing before they end up as the next John Walker Lindh.
I think I agree with the author. Children should be shielded from hate speech from their parents when it's possible to do so. I also think the standards for defining what speech children should be protected from need to be a lot tighter than the judge's subjective definition of "best interests of the child."