There are certainly many important moral and pragmatic arguments about the propriety of citizens' use of deadly force to defend property or to restore order, especially when the normal go-through-the-proper-channels means of protecting property or deterring crime are absent. Texas law (see secs. 9.41-9.43), for instance gives citizens a fairly broad right to use deadly force to defend both their property and, in many instances, others' property, even under normal conditions.

Based on my quick glance at the statutes, though, I doubt that even the Texas defense would extend simply to shooting looters, chiefly because it requires an attempt to protect or recover (recover for the benefit of the owner, I assume) specific property. The shooting of looters of others' property isn't really aimed at or likely to recover that property for the owner's benefit. Even if the looter can't get away with the TV set, it's unlikely that the owner of the TV set will get it back that way; and shooting for the purpose of generally deterring others' misconduct (as opposed to, for instance, shooting for the purpose of specifically deterring people who are right near the target from looting that particular place) probably isn't covered under Texas law. Moreover, there is still a moral question as to the propriety of such shooting, and the practical matters that Orin raises (and I lean towards sharing Orin's concerns).

But in any event, that's Texas law, not Louisiana law; and it might be worth remembering that, under Louisiana law — which generally (with some exceptions not applicable here) doesn't allow the use of deadly force to defend property — the shooting of looters by private citizens is a crime: the crime of murder. Some might argue that it shouldn't be a crime, either because the Texas rule (or an even broader version of it) is generally right, or because when civil authority collapses citizens have to be able to protect their property (if they're shooting people who are looting their own property) or try to restore order more broadly. And that's all well and good for blogs. But if you are ever put in this position yourself (and I hope none of us ever will be), you might want to keep in mind that, in most states and probably even in Texas, the current criminal law is very much not on your side.

Comments: Please be calm and civil, and if you want to make arguments about the current state of the law, please point to specific legal authorities. In particular, if you want to argue about Texas law, please make sure you have carefully read the statutes I cited.

I'm pleased to report that one of amazon's third-party sellers offers a used first edition (not the current edition, which is the second) of my Academic Legal Writing for the low, low price of $56.05. Now that's what an author, who gets royalties from new book sales but not used book sales, likes to see.

Samuel Dickstein was a Democratic Congressman from New York for over 20 years. In 1934, his concern about pro-Nazi activity in the U.S. led him to help establish what eventually became the House Un-American Activities Committee, which of course moved from investigating fascists and Nazis to investigating Communists.

He is also apparently the only Congressman known to have spied for the Soviet Union while a member of Congress.

Thanks to Prof. Gary Alan Fine (Northwestern University), whose talk pointed me to this story.

Deutsche Welle is running the contest, starting today.

Some bloggers seem to be publicly dropping their links to InstaPundit because of his having worked with the ACLU, and calling "demonizing the ACLU is a bit silly," and saying "I do feel that they've become overly partisan in recent years, but they still do good work". Given this, I think that people ought to know that (1) I am working with the ACLU now on a free speech case in Michigan, (2) I've worked with them on opposing the anti-flagburning amendment and the victims' rights amendment, (3) I have defended them from what struck me as unwarranted attacks here, here, and (4) I have praised their positions here, here, and, I'm sure, elsewhere as well.

I have also criticized the ACLU's positions on other matters in places too numerous to mention (do a search for ACLU on this site and you'll find quite a few), as have my cobloggers. I think demonizing the ACLU, like lots of other over-the-top rhetoric, is indeed a bit silly and counterproductive, and tends to lead the demonizer into factual and logical errors. If you think this puts me in league with the demons, why, you know what to do.

Fordham Law School, in New York, is holding a conference on this on September 30 and October 1. There'll be lots of very interesting academic panelists, and Justice Stevens will be there, and will deliver remarks.

I generally don't post announcements of local conferences, but the topic of this one seems especially interesting. Whether you like Justice Stevens' views or not, they've often been unusual, insightful, and much worth studying.

Professor Bainbridge posts an e-mail that discusses this. Naturally, we need to keep this in perspective: Dozens of peoples lost their lives, many more lost their loved ones, and many more still lost a great deal. But it's helpful, I think, to also concretely visualize some of the less obvious effects, effects that might still be quite serious, especially for clients and not just the lawyers.

A comment to an earlier post raised the question of circumcision more broadly:

Whatever the free excercise clause might mean, I don't think it meant that people could do irreparable physical harm to their children. Likewise, if you have legal guardianship of a child, do you have a legal right to perform other kinds of unnecessary cosmetic surgery? Why stop at circumcision? What is the limit on what harm a parent can do to a child?

We would not accept the mutilation of young girls, no matter how strong the religious convictions of the parent. Why would we accept the mutilation of young boys?

I agree that female circumcision (or, if you prefer, female genital mutilation) should be banned, but that's because it's pretty clearly and severely harmful to the child -- unless I'm mistaken, there's a near certainty of substantial loss of sexual pleasure plus (I think) a substantial risk of other problems.

The matter as to male circumcision, I think, is different. While some people claim that it causes a loss of sexual pleasure, there's a hot debate about this, and there's little reason to think that the loss approaches the loss caused by female circumcision (though it's of course not easy to compare such hard-to-measure matters). There is apparently some evidence that it has health benefits, perhaps modest and perhaps quite substantial. And there's apparently little reason to think that it has significant purely medical risks. Given this uncertainty about (purely secular) costs and benefits, it seems to me that parents should remain free to make this decision themselves. At the very least, the balance is not nearly as stark as it is for female circumcision.

This leaves the argument that the procedure, even if harmless, is an improper imposition on the child, because it's an irreparable (or at least very hard to repair) change to his body, done without his consent. Yet that strikes me as too abstract an objection to be helpful.

Parents do lots of things, physical and otherwise, that can't be easily undone and that the child doesn't consent to (or can't meaningfully consent to). They may perform cosmetic surgery to correct small abnormalities, surgery that they may think is valuable but that the child might one day resent. They may give the child growth hormone to counteract what would seem to be his abnormal shortness. They may decide to get the child's tonsils removed, to avoid recurring but non-life-threatening infections. They may decide to get the child braces, over the child's strong objections.

If these steps seem likely to create significant harms, I can see the need to protect the child from them. But I'm not persuaded that a child has a freestanding right to be free of unconsented-to physical changes by his parents, independently of the harm the changes can cause.

I've thought some more about the matter I discussed in my "bloodsucking circumcision" post, and while I still on balance take the view that I described there, I thought it might be helpful to discuss why this question is complex, and what the counterarguments to my view (which is that the practice can and should be banned, if it is indeed dangerous) might be.

1. Magnitude of the Risk: It's impossible, given the data I've seen, to know for sure what the risk of death here is. The New York Times story reports on one death from infant herpes that was apparently linked to the practice of the mohel's sucking the blood from the wound after the circumcision, plus two nonfatal cases, apparently some time between 2003 and 2005. It also reports on New York cases from 1988 and 1998, which apparently weren't fatal (or else I assume the article would have said so).

The article also says the practice is done "more than 2,000 times a year in New York City"; the known death rate thus seems to be about 3 per 100,000 or so, though the true death rate may of course be higher, since it's not clear that all the deaths that might be linked to circumcisions are reported in an easily aggregatable way, or lower, if the practice is more common or if in earlier years there were no deaths (or if it turns out that the herpes in this case stemmed from some other cause).

One possible argument is that the law simply shouldn't protect children against such small risks imposed on them by their parents. Even if it's wrong for parents to expose the children to such risks, at least in some situations, extra regulations of parents have their costs. Just to take one example, say the practice is outlawed, but many parents (though not all) nonetheless continue to knowingly or deliberately use mohels who employ it; and the law is enforced against parents on at least some occasions, usually in cases where the child didn't die (but could have). If parents are imprisoned as a result, the aggregate harm to such parents' other children from the temporary loss of one parent -- and the longterm loss of family assets that would come from the imprisonment -- may ultimately exceed the harm that the law avoids. More broadly, such restrictions on parents aimed at preventing small risks to children may be quite counterproductive; maybe we should forswear governmental power to impose all such restrictions, again when they're aimed at such small risks.

Note, though, that a 3 in 100,000 risk of death from a single act is not chopped liver. Here's an analogy, though you decide for yourselves which way it cuts: In 1981 -- which, to my knowledge, was before infant and toddler car seats got popular -- the yearly risk to babies age 0 to 4 of death in a car accident was 3 per 100,000. If we suppose a requirement that all children under age 5 be put in infant or toddler car seats, and we assume that such seats reduce the risk of death by 20% (I pulled the number from thin air, I confess), that means that the legal mandate of car seats likewise reduces the death rate by 3/100,000/year x 5 years x 20% = 3 in 100,000. Do you think this risk is too small to justify government mandates? I don't know for sure myself, but I leave it to you to consider the analogy. (Note also that the car seat requirement imposes modest financial costs but substantial effort on parents, given that many parents must use the seats nearly every day for 5 years, rather than just one day in the child's life.)

Always remember, of course, that this isn't just a person's deciding to risk his own life. It's a person's deciding to risk someone else's life. As a moral matter, it seems to me that even libertarians should recognize some possible role for the law to step in to prevent such risks, at least at some level (though, as I suggest above, some might conclude that as a practical matter, government intervention may do more harm than good).

2. Religious freedom: But of course there may be more in play here than just the risk the practice imposes on the child, and thus the potential benefit of the law. There's also the potential cost of the law. One reason my reaction is so hostile to the practice we're discussing is that I see it as imposing a modest risk for no benefit. It's one thing when parents impose a risk because there are substantial countervailing advantages to the child, or even to themselves. It's another when the risk seems so pointless.

But of course it's not pointless to many Orthodox Jews -- to them, the benefit, which is obeying God's will, is vast, likely far greater than the danger. This isn't so for all Orthodox Jews, apparently: Many of them think that the important thing is the circumcision, not the particular way the blood is removed; and some others might think that part of God's law is that other laws should be waived to prevent serious risk to life and health (query what the threshold of seriousness is). But other Orthodox Jews do seem to see the practice as religiously mandated. And just as the practice has huge benefits for them, so complying with any ban would impose huge costs for them.

How should the legal system deal with this? One tempting answer is that the legal system must respect the religious group's view of the religious costs. We let parents impose risks on children for certain secular benefits: For instance, if a child has a significant cosmetic defect, I assume we'd think the parents have a right to get the child surgery to correct it, even if the surgery poses some small risk. Likewise, I take it that we wouldn't ban parents from moving to a dangerous part of town, if they feel a need to (for instance, if they are ministers who want to minister to people in that part of town), even if we could show that this would increase the child's risk of being the victim of a homicide over the first 18 years of his life.

Similarly, the argument would go, if we're willing to let people risk their child's life to improve the child's appearance, or to further their own careers or religious callings, we should certainly let them risk their child's life to comply with God's law (which might provide him vast spiritual benefits, though I'm not sure whether that's exactly how Orthodox Jews would characterize compliance with the law).

Yet I don't find that persuasive. We may sometimes let a parent impose even greater risk on a child's life. Say, for instance, that a child is facing a risk of very grave loss of quality of life -- he has a condition that might render him a quadriplegic, or moderately brain damaged. There's surgery available that might avoid this harm, but it involves a 25% chance that the child would die. Naturally, that's a tragic choice, but I doubt that we'd forbid the parent from running that risk (or if you think 25% is too high, think 5%).

Now a religious person says: If I don't expose a child to a 25% risk of death, the child will face not just loss of quality of life, but eternal damnation (loss of quality of afterlife?). I think the child is possessed, for instance, so I need to perform a very dangerous exorcism; or I think that it's necessary for him to drink strychnine in order to be saved. (One religious group did indeed drink strychnine for religious purposes, and this caused some deaths; I'm not sure that they saw such drinking as actually required for salvation, but say they did.) Damnation is a far greater harm in my book than mere paralysis or moderate brain damage. And religious freedom means that the law must treat my estimate of the religious costs of a practice the same way that it treats its own estimates of secular costs.

Can the religious person's argument be right? Surely it can't be, I think; surely we are entitled to prevent him from risking his child's life this way. But that means that the law must explicitly or implicitly ignore his view about the cost of damnation, and the corresponding benefit of the exorcism, and instead limit itself to secular costs and secular benefits (as in the operation-to-avoid-quadriplegia hypothetical).

3. A combination: This leaves one other possibility: Maybe the law should value religious freedom to some extent, but not too much. If the benefit of a law is eliminating a 3 in 100,000 chance of death, and the cost is nil, then the law should be enacted (subject to the practical questions I noted above). But if the benefit is eliminating the 3/100,000 risk, and the cost is interference with religious freedom, then the law shouldn't be enacted. On the other hand, if the benefit is eliminating a 3/10 risk or a 3/100 risk or even a 3/1000 risk, and the cost is interference with religious freedom, then the law should be enacted. The parents' freedom to do what they think their religion commands, and what they likely see as being for the religious benefit of the child as well as for their own religious freedom, thus counts for something but not for everything.

There's underniable appeal to this, it seems to me -- but is it just the appeal of compromise for the sake of compromise, or does it actually make moral sense? For instance, how do we figure out whether religious freedom should be valued at 5% of life, 0.5%, or 0.05%? Also, why should the parents' religious views justify the imposition of even modest burdens on the children, who may ultimately have their own views, and who now have no religious views (at least from our secular legal system's perspective)?

In any case, all this leads me to still tentatively think that the practice probably should be banned, if it does indeed pose a risk to infants' lives. But I hope it helps illustrate why the matter is more complex than it may at first appear.

Incidentally, if you're wondering, the reasons that I take a different view with regard to parents' potentially harmful teachings of children -- even when the teachings may eventually (and not just imminently) lead the children into dangerous behavior -- are described in Part III of my Parent-Child Speech and Child Custody Speech Restrictions.

Here are some places you can donate, thanks to InstaPundit.

Compare these two arguments — first,

"All you have to do is look at the faculty list for the law or communications schools at Cleveland State University to see impact of clearly racist hiring practices . . . . Fully 90% of the communications department faculty is white, and the department chair has always been held by a WASP. Almost all the law school faculty is white. . . . There isn’t a Mexican-American on either faculty, despite the large, multi-generational Mexican-American community in the Cleveland area."

and, second,

"All you have to do is look at the faculty list for the law or communications schools at Cleveland State University to see impact of clearly racist hiring practices . . . . Fully one third of the communications department faculty is Jewish, and the department chair has always been held by an American Jew. Almost half of the law school faculty is Jewish. . . . There isn’t an Arab-American on either faculty, despite the large, multi-generational Arab-American community in the Cleveland area."

The first quote is hypothetical; it's a version of the second quote with group identities and numbers changed to take account of the different sizes of different groups. (Given that 2% of the U.S. population is Jewish, and 70% is white, providing a comparably stark disproportion with respect to whites required me to change "one third" and "one half" to "90%" and "almost all," and I used "Mexican-American" instead of black or Hispanic since I wanted a group that was comparable in size to Arab-Americans in Cleveland, which they seem to be, at least as of 1990.)

The second quote is an actual quote from Prof. Edward Abboud, who had been an adjunct instructor at Columbus State Community College, and who says he's been denied further employment because of his ethnicity (and possibly because of his anti-Israel views). The e-mail containing that quote is excerpted here (and thanks to CampusJ for the pointer). I also have a forwarded copy of that e-mail, which I've checked myself. (The e-mail's return address is at the seeming vanity press and public relations company that publishes Prof. Abboud's book, so I assume the quotes are authentic.)

Now I don't think that either quote requires the speaker to be actually anti-Semitic or anti-white. Whether or not Prof. Abboud is anti-Semitic, his arguments could certainly be made by someone who isn't.

But I think both quotes make the same mistake of inferring that racial or ethnic disproportion means "racist hiring practices." If you think there are nonracist explanations for why Jews (or Asians or other groups) are overrepresented in certain fields, then it seems likely that there are similar explanations for why other groups are underrepresented in certain fields. (Note, incidentally, that I'm not sure that Arab-Americans are indeed underrepresented relative to the hiring pool at Cleveland State, but that's irrelevant for the purposes of my argument.)

Moreover, if you really do oppose ethnic or racial disproportion for its own sake -- if you want a "university that looks like America" (or like Cleveland), then you do have to ask yourself: Does a law school faculty that's nearly half Jewish (like ours is here at UCLA) really look like America? In 2004, 34% of freshmen admitted to the UC were Asian, and my recollection that in the past (and perhaps even now) UC Irvine was over 50% Asian; does that really look like America or like California? If the answers to these questions are "no," then either you need to impose quotas on Jews or on Asians, or you need to conclude that it's quite proper for institutions to not mirror the racial proportions of the population.

A characteristically smart and readable piece from one of my favorite journalists.

I'm pleased to report that my Parent-Child Speech and Child Custody Speech Restrictions article is — counting cowritten pieces and several short humorous pieces that I've written — my fiftieth law review article.

Just finished up a law review-ready draft -- I'll be sending it out shortly -- and posted it here. Here's the Introduction, without the footnotes (which are available in the PDF file I linked to):

Percy Bysshe Shelley was a poet and a cad. He married his wife, Harriet Westbrooke, when she was 16, but left her for Mary Wollstonecraft Godwin three years later. When he left, his and Harriet’s daughter was a year old, and Harriet was pregnant with their son.

Two years later, Harriet committed suicide. When Shelley decided to raise the children himself, Harriet’s parents refused to turn them over, and Shelley went to court. Though fathers had nearly absolute rights under then-existing English law, Shelley became one of the first fathers in English history to lose custody of his children.

Percy Shelley was also an avowed atheist -- and the Court of Chancery mostly relied on this, not on his infidelity or unreliability. Shelley shouldn’t be put in charge of the children’s education, the Lord Chancellor reasoned: Shelley endorsed atheism and sexual freedom, and would teach his children to do the same. Twenty years later, Justice Joseph Story likewise wrote that a father could lose his rights for “atheistical and irreligious principles.”

Shelley’s case may look like something out of another time and place. That time and place, it turns out, is 2001 Mississippi, where the state supreme court upheld an order giving a mother custody partly because she took the child to church more often than the father did, thus providing a better “future religious example.” Presumably an outright atheist would be at even more of a disadvantage in a Mississippi child custody dispute.

And if he wasn’t denied custody, he might be ordered to take the child to church each week, as a Mississippi court ordered in 2000, reasoning that “it is certainly to the best interests of [the child] to receive regular and systematic spiritual training.” Arkansas, Louisiana, Michigan, Minnesota, Pennsylvania, South Carolina, South Dakota, and Texas courts also authorize judges to favor more religious parents over the less religious or the irreligious; there are similar cases in 1970s Iowa, Nebraska, North Carolina, and New York.

Likewise, through the past decades, parents have had their rights limited or denied partly based on their racist views, advocacy of Communism, Nazi sympathies, advocacy of pacifism and disrespect for the flag, advocacy of polygamy, defense of the propriety of homosexuality, defense of adultery, advocacy of (or inadequate condemnation of) nonmarital sex, fundamentalism, teaching of religions that make it hard for children to “fit in the western way of life in this society” or that are “non-mainstream,” and teaching of religious intolerance.

The Pennsylvania Supreme Court is now reviewing the polygamy advocacy case, framing the question as “To what extent can the courts limit parents from advocating religious beliefs that, if acted upon, would constitute criminal conduct?” -- a question that could equally apply to parents’ teaching their children the propriety of refusing to fight in unjust wars, the propriety of civil disobedience, and the like. All this is done under the rubric of the “best interests of the child” standard, the normal rule applied in custody disputes between two parents, which leaves family court judges ample room to consider a parent’s ideology.

Courts have also ordered parents not to swear in front of their children, and to install Internet filters. They have also considered, as a factor in the custody decision, parents’ swearing, exposing their children to R-rated movies, exposing their children to pornography, and exposing their children to photos of men in women’s clothing.

Likewise, Texas law leaves custody decisions to juries, and lets jurors consider a parent’s religious “beliefs, teachings, or practices” as part of the best interests inquiry, if the jurors conclude that those “beliefs, teachings, or practices are illegal, immoral, or demonstrated to be harmful to the child.” “[W]hat is immoral or harmful” is to be “left to the jury to apply community standards,” and may include “gambling, playing a lottery, drinking to excess, homosexual conduct, or abortion.” Presumably constitutionally protected speech, if seen as an “illegal” or “immoral” “belief[]” or “teaching[],” could be considered, just as constitutionally protected abortions might be. Many judges and juries are doubtless reluctant to use the best interests standard this way, especially where religious or political teaching is involved. But others are quite willing.

In a second category of cases, courts restrict custody or visitation based partly on a parent’s having said bad things about another parent, or order a parent not to say such things. Sometimes, the parent’s speech might seem like simple badmouthing, perhaps even constitutionally unprotected slander.

But at other times, the restrictions are based on a parent’s expressing broader viewpoints that also expressly or implicitly condemn the other parent. One parent, for instance, was ordered to “make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic,” because the other parent was homosexual. Parents have lost rights based partly on telling their children that the other parent was damned to Hell, or on otherwise criticizing the other parent’s religion. A court could likewise restrict a father’s teaching his children that women must be subservient to men, since such speech might undermine the mother’s authority.

Some restrictions in this category have been based on a parent’s revealing facts that undermine the child’s relationship with the other parent, for instance when a mother accurately told her 12-year-old daughter that her ex-husband, who had raised the daughter from birth, wasn’t the girl’s biological father. And some court orders prohibit the parent from telling the children anything about such orders, presumably on the theory that such discussions are likely to remind the children about tension between the parents, or are likely to be accompanied by explicit or implied criticism of the other parent.

In a third category of cases, some courts have restricted a parent’s religious speech when such speech was seen as inconsistent with the religious education that the custodial parent was providing. The cases generally rest on the theory -- sometimes pure speculation, sometimes based on some evidence in the record -- that the children will be made confused and unhappy by the contradictory teachings, and be less likely to take their parents’ authority seriously. In one case, a court actually ordered “that each party will impress upon the children the need for religious tolerance and not permit any third party to attempt to teach them otherwise,” though it’s not clear how such a vague order could be enforced.

Are these speech restrictions constitutional?

Meghan O'Rourke has a fascinating and thoughtful Slate item on some men's reactions to the prospect of watching their wives give birth. I don't share the reactions that she describes in her piece, but I thought her discussion of why they may occur was very insightful.

is available here, on the BCC Web site.

as Slate characterizes it; according to this New York Times article,

A circumcision ritual practiced by some Orthodox Jews has alarmed city health officials, who say it may have led to three cases of herpes -- one of them fatal -- in infants. But after months of meetings with Orthodox leaders, city officials have been unable to persuade them to abandon the practice.

The city's intervention has angered many Orthodox leaders, and the issue has left the city struggling to balance its mandate to protect public health with the constitutional guarantee of religious freedom. . . .

The practice is known as oral suction, or in Hebrew, metzitzah b'peh: after removing the foreskin of the penis, the practitioner, or mohel, sucks the blood from the wound to clean it.

It became a health issue after a boy in Staten Island and twins in Brooklyn, circumcised by the same mohel in 2003 and 2004, contracted Type-1 herpes. Most adults carry the disease, which causes the common cold sore, but it can be life-threatening for infants. One of the twins died. . . .

The health department, after the meeting, reiterated that it did not intend to ban or regulate oral suction. But Dr. Frieden has said that the city is taking this approach partly because any broad rule would be virtually unenforceable. Circumcision generally takes place in private homes. . . .

If the practice is indeed potentially life-threatening, it seems to me it should indeed be banned. Despite what I at first thought, it seems that "the most traditionalist groups, including many Hasidic sects in New York, consider oral suction integral to God's covenant with the Jews requiring circumcision," and thus religiously obligated. The prohibition therefore substantially burdens their religious beliefs (whether or not we think these beliefs are sensible).

But, first, it's not clear whether New York law generally provides for religious exemptions from generally applicable laws (see In re Miller, 252 A.D.2d 156 (App. 1998)). And, second, even if it did provide for such exemptions, no exemptions would have to be granted if enforcing the law is the least restrictive means of serving a compelling government interest -- and here it surely is.

Moreover, I would hope that the ban would indeed be enforceable: First, I would think that some mohels would feel some obligation to follow the law (though of course I'd hope that they wouldn't jeopardize children's lives, once they know about the risk). Second, Jewish circumcisions are generally events at which many people, both family and friends, observe. If child gets sick and there's a question about whether the mohel violated the law, I would think that at least some of the witnesses to the ceremony would come forward and be willing to testify in court.

And it seems to me that the ban is perfectly proper, again if the evidence does suggest that there is a material risk here: While people may often risk their lives for the sake of their religions, and should sometimes be allowed to do so, I don't think people should be free to risk their children's lives this way. I realize the risk here isn't vast, but even small risks may be substantial enough to justify a restriction.

According to the Times,

"The Orthodox Jewish community will continue the practice that has been practiced for over 5,000 years," said Rabbi David Niederman of the United Jewish Organization in Williamsburg, Brooklyn, after the meeting with the mayor. "We do not change. And we will not change."

Well, it seems to me that the American community should continue the practice of protecting children from being killed by adults. That may be a younger rule, but it's the right rule, and it should not change. Your views of your obligation to God do not give you the legal right to cause the deaths of others.

Read the rest of the story, which has lots of other important details.

I've often argued that it's improper for the government to discriminate against religious people and institutions because of their religiosity (see, for instance, my Equal Treatment Is Not Establishment article). But it's equally improper for the government to discriminate against irreligious people and institutions because of their lack of religiosity.

Fortunately, such discrimination is, I think, rarer now than it once was -- recall that until 1961, some states officially excluded atheists from certain jobs, such as notaries public. Yet it persists in some contexts, even overtly, and it's important to condemn this. For instance, though it's an open question to what extent it's constitutional for the government to discriminatorily give religious exemptions from generally applicable laws to religious objectors but not conscientious objectors, I think that the government should treat religious and conscientious objectors evenhandedly even if it isn't constitutionally obligated to. (I set aside here the question of government speech; I think the case for a government power to express itself religiously, at least in some contexts, is much stronger than the case for a government power to discriminate among citizens based on religion, but that's a story for another day.)

Here's an example that I think is particular egregious: The discrimination in favor of religious parents and against irreligious ones, or in favor of more religious parents and against less religious ones, in child custody cases, on the theory that it's in the child's "best interests" (that's the relevant legal test) to be raised with a religious education.

Mississippi is the most serious offender, though I've seen cases since 1990 in Arkansas, Louisiana, Michigan, Minnesota, Pennsylvania, South Carolina, South Dakota, and Texas; there are similar cases in 1970s Iowa, Nebraska, North Carolina, and New York. (I give cites below.) In 2001, for instance, the Mississippi Supreme Court upheld an order giving a mother custody partly because she took the child to church more often than the father did, thus providing a better "future religious example." In 2000, it ordered a father to take the child to church each week, as a Mississippi court ordered in 2000, reasoning that "it is certainly to the best interests of [the child] to receive regular and systematic spiritual training."

This violates the Free Speech Clause: Just as government discrimination against religious viewpoints is unconstitutional, see, e.g., Rosenberger v. Rector, so government discrimination against nonreligious viewpoints is unconstitutional. It violates the Establishment Clause: It coerces religious practice, either directly by ordering a parent to take the child to church, or indirectly by threatening the parent with a diminution in legal rights if he doesn't practice religion; the Court has rightly and unanimously taken the view that legal coercion of religious practice is unconstitutional (see both the majority and the dissent in Lee v. Weisman). It endorses religion (though the prohibition on endorsement is more controversial than the prohibition on coercion). And it discriminates based on religiosity. It may also violate the Free Exercise Clause, if (as I think is the case) the "free exercise of religion" includes the freedom not to have one's rights reduced because one exercises religion solitarily rather than in church, exercises religion less actively and passionately than some others, or has no religion at all. (The freedom of speech has been understood as including the freedom to choose what not to say as well as what to say; it seems to me the same applies to free exercise of religion.)

Finally, I realize that some people think it's in a child's best interests to be raised in a religion, perhaps because it will be more likely to make the child feel deeply about the need to follow some moral code. For all I know, this might be true. But other people equally think it's in a child's best interests to be raised skeptical of all religions, because it will be more likely to make the child into a rational thinker who doesn't take factual assertions on faith, and refuses to believe such assertions (whether about the Virgin Birth or the parting of the Red Sea or the creation of the world by an omnipotent, omniscient, benevolent God) unless he's given solid evidence that they're true. Freedom of religion, and freedom of speech, means that the government shouldn't make custody decisions based on such assumptions -- and of course if it can make custody decisions based on anti-atheist assumptions, it can also make them (and has made them) based on antireligious assumptions.

Citations for discrimination against the irreligious or less religious: Blevins v. Bardwell, 784 So. 2d 166, 175 (Miss. 2001); Staggs v. Staggs, 2005 WL 1384525 (Miss. App.); Brekeen v. Brekeen, 880 So. 2d 280, 282 (Miss. 2004); Turner v. Turner, 824 So. 2d 652, 655-56 (Miss. App. 2002); Pacheco v. Pacheco, 770 So. 2d 1007, 1011 (Miss. App. 2000); Weigand v. Houghton, 730 So.2d 581 (Miss. 1999); Johnson v. Gray, 859 So. 2d 1006, 1014-15 (Miss. 2003); McLemore v. McLemore, 762 So. 2d 316 (Miss. 2000); Hodge v. Hodge, 188 So. 2d 240 (Miss. 1966); Johns v. Johns, 918 S.W.2d 728 (Ark. App. 1996); Ark. Sup. Ct. admin. order no. 15 (enacted 1999); Peacock v. Peacock, 903 So.2d 506, 513-14 (La. App. 2005); Pahal v. Pahal, 606 So. 2d 1359, 1362 (La. App. 1992); Ulvund v. Ulvund, 2000 WL 33407372 (Mich. App.); Mackenzie v. Cram, 1998 WL 1991050 (Mich. App.); Jimenez v. Jimenez, 1996 WL 33347958 (Mich. App.); Jonhston v. Plessel, 2004 WL 384143 (Minn. Ct. App.); In re Storlein, 386 N.W.2d 812 (Minn. Ct. App. 1986); McAlister v. McAlister, 747 A.2d 390, 393 (Pa. Super. 2000); Thomas v. Thomas, 739 A.2d 206, 213 (Pa. Super. 1999); Gancas v. Schultz, 683 A.2d 1207 (Pa. Super. 1996); Scheeler v. Rudy, 2 Pa. D. & C. 3d 772, 780 (Com. Pl. 1977); Shainwald v. Shainwald, 395 S.E.2d 441, 446 (S.C. App. 1990); Hulm v. Hulm, 484 N.W.2d 303, 305 & n.* (S.D. 1992); In re Davis, 30 S.W.3d 609 (Tex. Ct. App. 2000); Snider v. Grey, 688 S.W.2d 602, 611 (Tex. Ct. App. 1985); In re F.J.K., 608 S.W.2d 301 (Tex. Ct. App. 1980); In re Marriage of Moorhead, 224 N.W.2d 242, 244 (Iowa 1974); Ahlman v. Ahlman, 267 N.W.2d 521, 523 (Neb. 1978); Dean v. Dean, 232 S.E.2d 470, 471-72 (N.C. App. 1977); Robert O. v. Judy E., 90 Misc.2d 439, 442 (N.Y. Fam. Ct. 1977).

Citations for discrimination against people who are seen as too religiously fundamentalist: Collier v. Collier, 14 Phila. 129 (Pa. Ct. Common Pleas 1985); Waites v. Waites, 567 S.W.2d 326 (Mo. 1978); Stolarick v. Novak, 584 A.2d 1034 (Pa. Super. 1991); In re Marriage of Epperson, 107 P.3d 1268 (Mont. 2005).

I should be on Open Source Radio this evening, talking together with Prof. Geof Stone about free speech in wartime. Geof is a leading First Amendment scholar, and always worth listening to; he'll be on most of the hour, and I'll be joining him for part of it. The show airs live from 7-8pm E.S.T. on WGBH in Boston, and streams live at Seattle public radio's special HD channel, KUOW2. Feel free to call in at (877) 673-6767 if you're so inclined.