Does Sen. Blumenthal have an emoluments clause problem?

Sen. Richard Blumenthal (D-Conn.) in April. (J. Scott Applewhite/Associated Press)

Sen. Richard Blumenthal (D-Conn.) is the lead plaintiff in a lawsuit filed by members of Congress alleging that President Trump is violating the foreign emoluments clause. Specifically, the lawsuit alleges that because President Trump “has a financial interest in vast business holdings around the world that engage in dealings with foreign governments and receive benefits from those governments,” he “has accepted, or necessarily will accept, ‘Emolument[s]’ from ‘foreign State[s]‘” in violation of the Constitution.

The complaint in Blumenthal v. Trump embraces a fairly expansive interpretation of what constitutes a prohibited emolument, perhaps too broad. Professor Andy Grewal (among others) has criticized the theory underlying this complaint as overly broad. (Others of us have expressed deep skepticism about whether anyone has standing to pursue these sorts of claims.)

At the Point of Order blog, Michael Stern notes an added wrinkle in Blumenthal v. Trump: Under the theory articulated in the complaint, it appears that Blumenthal himself is violating the foreign emoluments clause (FEC). Stern writes:

On the broad reading of the FEC advanced in the Blumenthal complaint, it would appear the senator is currently in violation of that constitutional provision. He has a financial interest in at least one business (the Empire State Building) which receives revenue from at least one foreign instrumentality (the People’s Daily). By Blumenthal’s own theory, therefore, he is receiving a prohibited emolument.

I suspect this theory will prove too broad to be sustainable. But the question then becomes whether there is a narrower theory that would encompass Trump’s interest in Trump Tower but not Blumenthal’s interest in the Empire State Building. No doubt Trump’s financial interest in Trump Tower is much greater than Blumenthal’s in the Empire State Building. But this would just mean that Trump may be receiving a larger emolument, not that Blumenthal is receiving none.

One might argue that Trump’s role in actually operating and managing Trump Tower means that he is receiving compensation for services, not merely passive or unearned income. (Of course, if he were compensated for his services through a salary from the entity that actually owns Trump Tower, the OLC analysis suggests it would not be an emolument). But this argument is harder to make since he has turned over all management responsibilities to his children. And if the fact that Trump’s children are managing Trump Tower counts against him for purposes of the FEC, wouldn’t the fact that Blumenthal’s father-in-law and other extended family members manage the Empire State Building likewise be a problem for him?

It’s going to take some constitutional fancy footwork for Blumenthal to avoid getting caught in his own web.

It’s one thing to argue the president should have divested himself of his hotel and other holdings to eliminate any conflicts of interest. It’s quite another to argue he’s violating the Constitution.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/08/18/does-sen-blumenthal-have-an-emoluments-clause-problem/

A cosmopolitan case against world government

The World Government Research Network has just published my new article, “A Cosmopolitan Case Against World Government.” Here is an excerpt, which briefly summarizes the rest:

The debate over world government and “global governance” typically pits cosmopolitan supporters of globalization against nationalist champions of state sovereignty. The latter fear world government because of the threat it poses to nationalism and the autonomy of nation-states. They also typically view free trade and international migration with suspicion.

However, one need not be a nationalist to oppose world government. I am a cosmopolitan supporter of free trade and an advocate of a strong presumption in favor of open borders immigration. In addition, I am no fan of nationalism….

Yet I also take a dim view of world government and other similar proposals. These positions are not contradictory; indeed they are mutually reinforcing. Precisely because I see great value in free migration and the opportunity to “vote with your feet,” I oppose the creation of a global state whose authority would be almost impossible to escape.

A world government would close off opportunities for foot voting. It would also undermine valuable interjurisdictional competition and exacerbate some key weaknesses of the democratic process. In the worst-case scenario, it could establish a global tyranny from which there may be no escape. Despite the claims of advocates, it also probably is not necessary to solve the world’s great problems. Indeed, it might even exacerbate those dangers.

In the article, I also explain why the debate over world government matters, despite notable recent political trends that cut against it:

Concern about the perils of world government may seem ridiculous at this point in history. Critics of world government always run the risk of looking like paranoid members of the black helicopter brigade who believe that the UN, the Council on Foreign Relations, or the Zionist-Masonic conspiracy is about to take over the world. This may be even more true in light of recent events such as Britain’s vote for Brexit, the rise of right-wing nationalist movements in several European countries, and Donald Trump’s unexpected victory in the 2016 US presidential election….

But it is important to look beyond the immediate political moment. The nationalist surge may not prevail, and may indeed be cresting even now. Right-wing nationalist parties have suffered defeats in recent elections in France and the Netherlands, and a similar outcome is expected in this fall’s German election. Donald Trump is the most unpopular president (at this stage in his first term) in the history of public opinion polling. His brand of xenophobic populism may turn out to be one of the last gasps of a fading past, rather than the wave of the future.

Survey data indicates that younger voters in both the US and Europe are less nationalistic than their elders….

While the establishment of world government is unlikely in the near future, trends favoring it could easily accelerate over time, while opposition might gradually wane. At the very least, it is an idea worthy of serious consideration.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/08/18/my-cosmopolitan-case-against-world-government/

My “National Review” op ed on fair weather federalism

Earlier today, National Review published my new op ed on “fair weather federalism,” which explains how both left and right could benefit from a more systematic commitment to enforcing limits on federal government power. Here is an excerpt:

The Republicans are supposed to be the party of state autonomy and strict limits on federal power. But you would not know it based on the first six months of the Trump administration. On a variety of major issues involving immigration, law enforcement, and the “war on drugs,” the administration’s policies exemplify the phenomenon of “fair-weather federalism”: respecting limits on federal power only when politically convenient….

Sadly, the Trump administration and the GOP are far from the only fair-weather federalists in politics. Many of the liberal Democrats currently relying on federalism principles to protect sanctuary cities against Trump decried those very constraints in the past, when they impeded progressive priorities.

Both the Left and the Right could benefit from a more principled commitment to limiting federal power…. This is especially true in an era of deep partisan polarization, when Democrats and Republicans are farther apart on most issues than they have been in decades….

Decentralization of power can also help defuse the partisan hatred that is poisoning our politics. If the federal government had less control over our lives, both sides would have less to fear from their opponents’ victories at the national level.

Fair weather federalism does have some occasional benefits. But a more consistent and systematic approach would better. I previously wrote about this issue here, here, and here. I have also written about recent efforts to promote cross-ideological support for federalism, by leading left of center legal scholars Jeffrey Rosen and Yale Law School Dean Heather Gerken.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/08/18/my-national-review-op-ed-on-fair-weather-federalism/

‘FedEx is closely monitoring potential effects of the total solar eclipse’

So FedEx reports, noting, “Events of this nature often cause pickup and delivery delays and disruptions for FedEx customers. FedEx is prepared to provide service to the best of its ability.” Sounded very odd to me at first — what, they’re afraid a dragon will eat the sun? — but then I realized that they must be referring to the human effects of the total solar eclipse: a flood of eclipse-watchers causing traffic jams. Makes sense now.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/08/18/fedex-is-closely-monitoring-potential-effects-of-the-total-solar-eclipse/

Libertarianism and environmental protection

The full contents of the Encyclopedia of Libertarianism are now online at Libertarianism.org, a website maintained by the Cato Institute. One of the newly posted entries is one I authored on “Environment.” Here’s a taste:

Environmental protection emerged as a major policy issue in the early 1960s, when public concern about the impact of human activity on our natural resources and their consequent impacts on human health became an important political issue. The result was the enactment of numerous laws designed to protect the environment through government regulation. Although there is broad public support for protecting the environment, there is increasing debate over whether government regulation is the best means of achieving environmental protection. Critics of environmental regulation point to its high costs and inconsistent results and also to its abundant weaknesses. Contemporary environmental regulation’s greatest failing, according to many of its critics, is that its effects are equivalent to those of central economic planning. These critics argue that market institutions, such as property rights, voluntary exchange, and common-law liability rules, would do a better job of advancing environmental concerns in concert with individual liberty. This approach to the environment, known as free-market environmentalism (FME), has played an increasingly prominent role in the debate over environmental policy.

Most environmental regulations are predicated on the idea that market failures exist when the government does not intervene. In the simplest of terms, this perspective holds that markets fail to account for the external environmental costs—externalities—produced by economic activities. Such external effects range from the air and water pollution that accompanies industrial production and agriculture to the depletion of natural resources that are commonly owned. For example, if a factory were to emit untreated effluent into a river or stream without compensating those who are impacted by the pollution, the costs of the factory’s actions are externalized. Whereas the factory must pay for the labor, capital equipment, and material inputs that it uses to make products, it need not pay for its use of the river for waste disposal. Such pollution externalities are presented as evidence that markets fail to account for environmental values, at which point, it is argued, government intervention is required. One problem with this paradigm is that it justifies government regulation of all human activities that have any measurable environmental impact. As a result, it provides an available pretext to regulate nearly anything.

Libertarian analysis of environmental policy rejects the market failure paradigm. In the broadest sense, libertarianism holds that environmental problems are instead the result of the absence of markets. Environmental problems, whether uncontrolled pollution or the unsustainable use of natural resources, result when resources are left outside of the market institutions of property rights, voluntary exchange, and the rule of law. Libertarian environmentalists note that privately owned resources are typically well maintained. In contrast, resources that are unowned or politically controlled are more apt to be inadequately and poorly managed. Proponents of FME would establish institutional arrangements so that more of the world would enjoy the same custody and protection as a home or yard owned by an individual or group. “At the heart of free market environmentalism is a system of well-specified property rights to natural resources,” explain Terry Anderson and Donald Leal in Free Market Environmentalism… .

It is difficult to apply the FME paradigm to some environmental resources. Regional air pollution, for example, is difficult to address because of the inability to define and defend individualized property rights in air. Regional airsheds may well be unfenceable commons. To address this sort of problem, libertarian environmentalists endorse various policies that seek to replicate the institutional arrangements provided by markets. Two quasimarket approaches that are often discussed are the imposition of “pollution taxes” and the creation of quasiproperty rights in emissions, such as tradable emission permits that can be bought and sold. Another approach is the creation of an association or cooperative enterprise to manage the resource, much like a condominium association manages the common areas of a condominium. This property-based approach has been used for various land and water bodies and might be applicable to local or regional airsheds. Where pollution problems are the result of multiple small sources, such as individual automobiles, such aggregation can reduce the transaction costs involved with property-based approaches to environmental protection.

This market-based strategy is pervasive in discussions of environmental policy today. The benefits of FME approaches to environmental protection can be seen in many resources that are managed through property institutions. Examples include the creation of property rights in instream water flows in the western United States, which has empowered environmentalists to purchase water to protect fish; the establishment of property interests in wildlife in much of southern Africa; and the use of property rights in fisheries in New Zealand, Iceland, and parts of the United States. In each of these instances, the creation of property interests in environmental resources has created powerful economic incentives for sound resource stewardship and protection. The challenge for free-market environmental advocates is to develop creative means of extending market institutions to a broader range of environmental resources.

Some of my academic work has sought to apply the FME approach to specific environmental resources, such as water and fisheries. In other work, I have raised skepticism about whether the FME approach — at least as expounded by some of its proponents — can address certain types of pollution problems. I have also suggested that some libertarians seem awfully quick to abandon their concern for property rights and libertarian principle when it comes to the problem of climate change.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/08/18/libertarianism-and-environmental-protection/

Jail for nursing home staff who “willfully and repeatedly fail to use a resident’s preferred name or pronouns”?

California bill — passed by the state senate and recommended for passage by an assembly committee — would authorize jail for nursing home staff who “willfully and repeatedly fail to use a resident’s preferred name or pronouns”:

[Legislative Counsel’s analysis:] Existing law provides for the licensure and regulation by the State Department of Public Health of health facilities, including skilled nursing facilities and intermediate care facilities. A violation of these provisions is a crime … Under existing law, a person who violates the act, or who willfully or repeatedly violates any rule or regulation adopted under the act, is guilty of a misdemeanor …

Among other things, the bill would make it unlawful, except as specified, for any long-term care facility to take specified actions wholly or partially on the basis of a person’s actual or perceived sexual orientation, gender identity, gender expression, or human immunodeficiency virus (HIV) status, including, among others, willfully and repeatedly failing to use a resident’s preferred name or pronouns after being clearly informed of the preferred name and pronouns and or pronouns …

[Text:] (a) Except as provided in subdivision (b), it shall be unlawful for a long-term care facility or facility staff to take any of the following actions wholly or partially on the basis of a person’s actual or perceived sexual orientation, gender identity, gender expression, or human immunodeficiency virus (HIV) status: …

(5) Willfully and repeatedly fail to use a resident’s preferred name or pronouns after being clearly informed of the preferred name or pronouns …

(b) This section shall not apply to the extent that it is incompatible with any professionally reasonable clinical judgment …

I should note that professional-client speech is subject to more government regulation than other speech, though how much more is unclear (see this general discussion and this post about the Florida “docs vs. glocks” law), and the regulation is generally civil, not criminal. Still, this would on its face extend beyond just speech to the client, and would also cover speech about the client (since the relevant pronouns, whether “he,” “she,” “ze” or anything else, are third-person pronouns that are generally used when talking to someone else about the person). And it strikes me as pretty unlikely that, if this law is enacted, such prohibitions would be limited just to this scenario (compare the official New York City Commission on Human Rights guidance, which says that “intentional or repeated refusal to use an individual’s preferred name, pronoun or title” could lead to massive fines when done by any employer, landlord, or business or professional).

Thanks to Ed Driscoll at InstaPundit for the pointer.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/08/18/jail-for-nursing-home-staff-who-willfully-and-repeatedly-fail-to-use-a-residents-preferred-name-or-pronouns/

Ultra-Orthodox Judaism, a wife concluding that she is lesbian, and child custody

A very interesting decision handed down Wednesday by a New York appellate court (Weisberger v. Weisberger). Note that, of course, though this case involves ultra-Orthodox Judaism, similar stories could happen in Muslim communities, and for other religions as well.

First, the facts and procedural history, which are long but which I think need to be given in detail to do the matter justice:

The parties were married on March 5, 2002. In 2005, the mother told the father that she could not tolerate having sexual relations with men, and that she was sexually attracted to women. The parties were divorced by a judgment of divorce dated March 6, 2009. They have three children together, a son and two daughters. At the time of the divorce, the parties’ older daughter was five years old, their son was three years old, and their younger daughter was two years old.

In a stipulation of settlement dated November 3, 2008, which was incorporated but not merged into the judgment of divorce, the parties agreed to joint legal custody of the children with the mother having primary residential custody…. [T]he stipulation contained the following religious upbringing clause:

Parties agree to give the children a Hasidic upbringing in all details, in home or outside of home, compatible with that of their families’. Father shall decide which school the children attend. Mother to insure that the children arrive in school in a timely manner and have all their needs provided.

The stipulation of settlement further provided that each party “shall be free from interference, authority and control, direct or indirect, by the other.”

On November 29, 2012, more than three years after the divorce, at which time the children were nine, seven, and five years old, respectively, the father moved, by order to show cause:

  1. to modify the stipulation of settlement so as to award him sole legal and residential custody of the children, as well as final decision-making authority over medical and dental issues, and issues of mental health;
  2. to modify the stipulation of settlement so as to award the mother only supervised therapeutic visitation with the children; [and]
  3. to enforce the religious upbringing clause so as to require the mother to direct the children to practice full religious observance in accordance with the Jewish Hasidic practices of ultra Orthodoxy at all times and require her to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy during any period in which she has physical custody of the children and at any appearance at the children’s schools ….

In support of the motion, the father alleged that the mother had radically changed her lifestyle in a way that conflicted with the parties’ religious upbringing clause. Although the father acknowledged that at the time he entered into the stipulation of settlement he expected the mother’s future intimate relationships would be with women, he expected her to keep the fact that she was gay a secret and to keep any relationship she had with a woman secret from the children.

The father alleged that since the parties had entered into the stipulation of settlement the mother had, among other things, come out publicly as a lesbian, disparaged the basic tenets of Hasidic Judaism in front of the children, allowed the children to wear non-Hasidic clothes, permitted them to violate the Sabbath and kosher dietary laws, and referred to them by names that were not traditionally used in the Hasidic community. The father further alleged that the mother had dressed immodestly, dyed her hair, and permitted a transgender man to reside in her home with the children.

Pending the hearing and determination of the father’s motion, the [trial court] awarded him temporary residential custody of the children…. The temporary order also provided, [among other things], that the mother would “encourage and practice full religious observance in accordance with the [Hasidic] practices of Emunas Yisroel in the presence of the children,” and “in the Boro Park community, the [mother] shall dress in the [Hasidic] modest fashion.”

The mother opposed the father’s motion and separately moved, by notice of motion dated April 10, 2013, [among other things], to modify the religious upbringing clause and for such other and further relief as the court deemed just and proper. The mother proposed that the religious upbringing clause be modified to provide as follows:

Mother agrees to provide the children with a conservative or progressive modern orthodox Jewish upbringing compatible in all details, in home or outside of home, with a conservative or progressive modern orthodox Jewish community that is inclusive of gay individuals. Such community shall be as near to Borough Park, Brooklyn, New York, as possible, and in [sic] under no circumstances outside of the Borough of Brooklyn. The children will attend a conservative or progressive modern orthodox Jewish school that is similarly inclusive. Mother and Father shall consult with one another on selecting the Children’s schools.

Father shall continue to teach the Children all aspects of a Hasidic upbringing, and in furtherance of this shall have visitation rights with the children every Shabbos, beginning Friday night one hour before sundown through Sunday morning at 10 am. Mother will keep a [k]osher home and shall only provide the Children kosher food outside of her home. Mother to insure that the children arrive in school in a timely manner and have all their needs provided.

… The father testified that his and the mother’s extended families were integrally involved in the founding of the Emunas Yisroel branch of Orthodox Hasidic Judaism, and their families were neighbors in Monsey, New York. When the parties were both 19 years old, they were introduced through a shadchan (matchmaker). Shortly thereafter, they became engaged and, in 2002, they were married.

After marrying, the parties moved to Boro Park, Brooklyn, so that the father could pursue religious studies. They had three children, and raised them according to traditional Hasidic practices and beliefs. During the marriage, the father left the house in the morning and generally returned after the children were in bed. The mother was primarily responsible for taking care of the children’s needs, and the father was satisfied with her care of them. The parties kept a strictly kosher home, spoke Yiddish, observed the Sabbath, and always wore traditional clothing. According to the father, Hasidic children never wear T-shirts, jeans, or shorts, boys do not have their hair cut until the age of three, and there is no television or Internet in the home….

The parties were divorced on March 6, 2009, and the father married a different woman later that same month. At the time of his testimony, the father and his new wife had two children together. Despite the parties’ agreement that the father would have visitation with the children every other Shabbos, the father testified that during the first 18 months of his new marriage he would not permit the children to come over to his house, he did not fully exercise his biweekly right to visitation during Shabbos, and he did not take their son for Yom Kippur in 2009 through 2011. The father testified that when he did visit with the parties’ children, he did so at his parents’ house. [Text moved: [T]he mother [testified] that the father had not made a single child support payment to her since their separation, notwithstanding the explicit terms of the stipulation of settlement.]

The father learned that in fall 2012 a transgender man (hereinafter “O.”) moved into the mother’s home, and that a curtain was installed to separate the adult bedrooms from the children’s bedrooms. According to the father, his children informed him that O. assisted in bathing them and told them about sexual parts of the human body. In October 2012, the mother began dressing the children in secular clothes and cut their son’s payos (sidelocks).

The father testified that the children began speaking English in school, stopped saying blessings at meals and nighttime prayers, and were eating non-kosher food. Further, the father testified that the mother had allowed the children to ride a train and use light switches on the Sabbath. The father also testified that the mother allowed the children to watch movies, including a movie about Christmas, and participate in an egg hunt at a Purim party. The father testified that in March 2013, the younger daughter told him that she had read a book about children with two fathers and other books about homosexuality.

The father denied that the mother’s sexual orientation was the motivation behind his request for a change in custody; however, he had expected the mother to keep her sexual orientation a secret from the children. The father testified that he sought custody of the children so that he could give them a traditional upbringing according to his religion without interference from the mother. The father objected to the children being exposed to anyone who was openly non-religious, or to any intimate relationship that was not sanctioned by Jewish law. The father believed that homosexuality violated the Torah. The father also believed that the mother’s visits with the children should be limited to one or two hours per week and supervised by a family member. When asked whether he could reach a compromise, the father testified: “[T]here’s no place for compromising in our religion.” …

The mother testified that … [s]he never spoke with a lawyer during the divorce process. Her father-in-law gave her an agreement to review and make notes. She met with a rabbi, who guided her as to which issues she should negotiate. She negotiated the financial aspects of the agreement and, according to her testimony, Rabbi Glassman — the parties’ designated mediator — was supposed to incorporate her changes into the agreement. When she appeared at the Beth Din to sign the agreement, it did not include her changes. She inquired why the agreement did not include the changes and the mediator said he would take care of it, so she signed the agreement.

The stipulation of settlement provided that the father would pay the mother $600 per month in child support. The mother waived her right to, among other things, maintenance and to the distribution of marital property. The mother testified that she believed the custody arrangement provided for in the stipulation of settlement was good for the children….

[The mother testified that, f]or a number of years, the mother never told the children about her sexual orientation. However, the mother testified that, in 2012, she learned that the older daughter was beginning to suspect the mother was gay. The mother testified that she consulted with the older daughter’s therapist about the issue, and then told the older daughter that she was gay, which she believed deepened the child’s level of trust and openness with her. In September 2012, the mother’s friend, O., came to live with her. The children and O. got along well with each other. However, in October 2012, after the older daughter returned from a visit with the father, she was confused and upset because the father’s family had teased her about her level of religious observance and had told her that O. was really a woman….

The mother testified that she carefully obeyed the order’s provision requiring her to behave religiously with the children and in Boro Park, but felt hypocritical for doing so and for hiding parts of herself. She believed the father’s custody proposal was devastating, as she had been the most present parent in the children’s lives since they were born, and she worried about the children’s emotional well-being while in the father’s custody. In connection with her motion to modify the religious upbringing clause, the mother believed the children would be better served by attending a school that was more accepting of diversity, and she offered to continue to keep a kosher home and let the children spend religious holidays with the father. The mother wanted the children to continue with therapy to help them resolve the differences between their two parents’ households.

In the order appealed from, the [trial court] determined that there had been a change of circumstances caused by the mother’s transition from an ultra Orthodox Hasidic lifestyle to a “more progressive, albeit Jewish, secular world.” The court noted that the mother’s conduct was in conflict with the parties’ agreement, which “forbade living a secular way of life in front of the children or while at their schools.” The court posited that had there been no agreement it might have considered the parties’ arguments differently; however, “given the existence of the Agreement’s very clear directives, [the] Court was obligated to consider the religious upbringing of the children as a paramount factor in any custody determination” (emphasis added).

The [trial court] … modif[ied] the stipulation of settlement so as to award him sole legal and residential custody of the children …. The court stayed the provision of the order limiting the mother’s visitation to supervised therapeutic visits, conditioned upon, [among other things], her compliance with the religious upbringing clause contained in the stipulation of settlement. The court directed that, while the stay was in effect, the mother was entitled to unsupervised visitation every Monday after school or camp until Thursday morning.

In addition, the [trial court] granted that branch of the father’s motion which was to enforce the religious upbringing clause so as to require the mother to direct the children to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy at all times. Further, the court ordered that during any period of visitation or during any appearance at the childrens’ schools “the [mother] must practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy.” The court denied those branches of the mother’s motion which were to modify the religious upbringing clause and to modify the vacation and holiday schedule contained in the stipulation of settlement. The mother appeals.

Now, the legal analysis: The court concluded that the decision had to be based on “the continued best interests and welfare of the child[ren],” and that the trial court’s decision “gave undue weight to the parties’ religious upbringing clause”:

[Under New York precedents,] clauses in custody agreements that provide for a specific religious upbringing for the children will only be enforced so long as the agreement is in the best interests of the children. “No agreement of the parties can bind the court to a disposition other than that which a weighing of all of the factors involved shows to be in the child[ren]’s best interest.”

Considering all of the facts and circumstances of this case, the father failed to demonstrate that it is in the children’s best interests to award him sole legal and residential custody of the children, as well as final decision-making authority over medical and dental issues, and issues of mental health. The mother has been the children’s primary caretaker since birth, and their emotional and intellectual development is closely tied to their relationship with her. The record overwhelmingly demonstrates that the mother took care of the children’s physical and emotional needs both during and after the marriage, while it is undisputed that the father consistently failed to fully exercise his visitation rights or fulfill his most basic financial obligations to the children after the parties’ separation. Indeed, aside from objecting to her decision to expose the children to views to which he personally objects, the father expressed no doubts whatsoever about the mother’s ability to care and provide for the children. The weight of the evidence established that awarding the father full legal and residential custody of the children with limited visitation to the mother would be harmful to the children’s relationship with her….

Furthermore, the [trial court] improperly directed that enforcement of the parties’ stipulation of settlement required the mother to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy during any period in which she has physical custody of the children and at any appearance at the children’s schools. Although the court accepted the father’s argument that the religious upbringing clause “forb[ids] [the mother from] living a secular way of life in front of the children or while at their schools,” the plain language of the parties’ agreement was “to give the children a Hasidic upbringing” (emphasis added).

The parties’ agreement does not require the mother to practice any type of religion, to dress in any particular way, or to hide her views or identity from the children. Nor may the courts compel any person to adopt any particular religious lifestyle. To the contrary, “[i]t is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise.” Thus, a religious upbringing clause should not, and cannot, be enforced to the extent that it violates a parent’s legitimate due process right to express oneself and live freely (see Lawrence v Texas; see also Obergefell v Hodges). Indeed, the parties themselves agreed in the stipulation of settlement that they “shall [each] be free from interference, authority and control, direct or indirect, by the other” (emphasis added).

While we respect the parties’ right to agree to raise their children in a chosen religion and to seek judicial relief to enforce that right, given the change in circumstances here, the weight of the evidence does not support the conclusion that it is in the children’s best interests to have their mother categorically conceal the true nature of her feelings and beliefs from them at all times and in all respects, or to otherwise force her to adhere to practices and beliefs that she no longer shares. There is no indication or allegation that the mother’s feelings and beliefs are not sincerely held, or that they were adopted for the purpose of subverting the religious upbringing clause, and there has been no showing that they are inherently harmful to the children’s well-being.

This is not to say that it would be in the children’s best interests to become completely unmoored from the faith into which they were born and raised. Indeed, we conclude that the children’s best interests would be better served by a more limited modification of the religious upbringing clause than that proposed by the mother. The evidence at the hearing established that the children have spent their entire lives in the Hasidic community, they attend Hasidic schools, and their extended families are Hasidic. “[T]he maintenance of the status quo is a positive value which, while not decisive in and of itself, is entitled to great weight.”

Contrary to the mother’s contention, the weight of the evidence demonstrates that it is in the children’s best interests to continue to permit the father to exercise final decision-making authority over the children’s education and to continue to permit him to require the children to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy while they are in his custody, or in the custody of a school that requires adherence to such practices. To this end, the children’s interests will be best served if their parents work together to surmount the challenges the children will face as they continue on their current educational path.

As such, we deem it appropriate to direct the mother to make all reasonable efforts to ensure that the children’s appearance and conduct comply with the Hasidic religious requirements of the father and of the children’s schools while the children are in the physical custody of their father or their respective schools. Further, in light of the mother’s proposal, made in both her motion papers and her testimony, to keep a kosher home and to provide the children exclusively with kosher food, we find that it would be in their best interests for her to do so, and in a manner consistent with Hasidic practices. Except for these specified matters, we otherwise modify the religious upbringing clause to allow each parent to exercise his or her discretion while the children are in his or her care or custody.

We find that an increased visitation schedule with the father would be in the children’s best interests. The parties’ original custody agreement provided the father with, [among other things], one overnight visit with the children, every other week. In light of the change in circumstances, we conclude that the stipulation of settlement does not adequately provide the father with meaningful time with the children. Accordingly, that branch of the father’s motion which was to modify the stipulation of settlement is granted only to the extent of modifying the stipulation of settlement so as to award the father visitation every other weekend from Thursday after school until Sunday at 11:00 a.m. On alternating weeks, the father shall have (as the parties provided in their stipulation of settlement) visitation from Friday after school and return them one hour after Shabbos ends during winter and two hours after Shabbos ends during summer….

We acknowledge that both parents are sincere in their devotion to the children and, with the exception of occasional lapses in good judgment, neither parent has engaged in conduct that is contrary to the best interests of the children. And yet, the parties’ religious, moral, and ethical beliefs and values with respect to raising their children, while once compatible, have now become incompatible in many important respects. While the arrangement set forth here may not fully satisfy both sides of this dispute, courts do not always have the perfect solution for all of the complexities and contradictions that life may bring ….

Finally, the parties’ stipulation provided, [among other things], that the parties shall “encourage the child[ren] to honor, respect and love the other party,” shall not “attempt to alienate or destroy the affection of the child[ren] for the other party,” and shall not “speak idly about the other party in front of the children.” This provision applies equally to both parties and, therefore, neither party may, directly or indirectly, denigrate the other to or before the children for any reason, including their disagreement with the other party’s identity or beliefs.

Thanks to Michael Krupen for the pointer.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/08/18/ultra-orthodox-judaism-a-wife-concluding-that-she-is-lesbian-and-child-custody/