When Is A Conundrum Not A Conundrum?

The Founding Fathers were wise enough to know they couldn't anticipate every possible future sequence of events. That's one of the biggest reasons they made the US Constitution rather broad in language and vague in scope--and gave us the US Supreme Court to interpret it. Things change over time, so-called "strict constructionists" to the contrary.

The latest apparent conflict is between the First Amendment's guarantee of freedom of speech and the common law (i.e., traditional) right of parents to decide what to teach their children. This conflict tends to arise in divorce cases, as an aspect of child custody. The most recent example with which I have some acquaintance is a case in California, wherein the judge told the non-custodial father that, as part of his visitation rights, he could NOT teach his children that jihad was an acceptable course of behavior.

The news commentator whose report revealed this case to me seemed to think that what we have here is an intractible problem. I respectfully disagree.

First, look at the US Supreme Court's consistent decisions in cases denying people the right to handle poisonous snakes as part of their religious observances. People are always free to believe whatever they want to believe, but they are not always free to act on those beliefs. Preventing possible harm to children or other innocent bystanders outweighs the right to take a deadly risk. In other words, protecting the general public matters more than letting anyone--even people who would willingly assume the risks--act out every aspect of their beliefs.

That's fine, as far as it goes, but it still lets people hold what can be called dangerous beliefs. The next step is to point to Justice Oliver Wendell Holmes's famous observation that no one can just yell "Fire!" in a crowded theater . . . unless it's true, of course. So there are limits on the freedom to open one's mouth and say whatever comes to mind. Again, the limits apply whenever the public health and safety would otherwise be put to untenable risk.

Finally, consider that children, as the least experienced and most vulnerable among us, are always given extra protection under the law. Obscenity is illegal for everyone--but pornography is allowed, for grown ups. Every court everywhere has obligations at law (whether by statute or custom) to protect children, so that they can grow into adults capable of making their own decisions once they are in fact grown up.

To expose a child to certain ideas is in fact to brainwash him. He hasn't had the years on earth to gain the experience necessary to decide which ideas are good and which are bad. It's easily demonstrated that a child exposed to abuse thinks that abuse is normal, even expected. That child will in turn be much more likely than a child raised in a healthy home to abuse others, even before the abusive child has come of legal age.

So there really is no conundrum or intractible problem here, despite the news commentator's suggestions to the contrary. The non-custodial parent is not being told to change his beliefs. He is not being told not to act on his beliefs, except as doing so would violate criminal law. His child is being protected until his child is old enough to decide for himself what he chooses to believe.

This is as it should be, and it has absolutely nothing to do with the religion promoting the belief in question. Any expression of any religion endorsing violence properly would be so restricted from an impressionable child's view. The fuzzy thinking that claims a conflict between freedom of speech and freedom of religion in these child custody cases deserves nothing but our contempt.