Tuesday, August 25, 2009

We're saying the same thing; we're just saying it differently

My learned colleague Mark Chinn** from Jackson, MS, posted a deliberately provocative title to his blog this week: said Mark: "If you get a prenuptial agreement in the days before the marriage, don’t sign it!"

My thought was: "If your fiance hands you a prenuptial agreement at the church door, stop the music, and postpone the wedding! You've just learned something very valuable about your fiance, before you've married him!"

Mark's point, as we kicked it around on Facebook afterwards, was: "If you are going to sign a life time contract, you better have counsel and some time to think about it."

Mine was: "That INCLUDES that big contract you sign on when you say "I do!"

** Mark's a great guy, and a wonderful lawyer, but he's about as different from me as someone who would fit my superficial police description (6'2"+; 200 lb. + white male, brown hair, glasses, over 40, lawyer, married, parent) could be: he's perpetually cheerful when I'm saturnine; he's relaxed and Southern and small-towny where I'm a perpetual pent-up Northern cosmopole, etc.

Teenagers, the State and Religion: do hard cases make bad law?

Rifqa Bary, who's seventeen, ran away from her parents in Columbus, Ohio, and turned up in Orlando, Florida, under the "care"of a pastor whom she met over the internet. The pastor held a press conference in which Rifqa announced, under the pastor's eye (or more exactly, under his arm) that she had run away because she had converted to Christianity, and that she was afraid that her Muslim parents would either kill her, or "send her back" to Sri Lanka, from where the family had come in the last decade, and that she would be killed there by Dad's family as an "honor killing".

Working only from the newspaper accounts, a number of things immediately struck me as troubling: first, how do you "send" a seventeen-year-old on a series of overseas flights against her will, if you are evidently unable to keep her from walking out of the house, hitchhiking to a bus station, and taking a Greyhound bus to Florida? Rifqa doesn't seem to have been kept in purdah; she apparently attended public school, where she participated in cheer-leading and tumbling, and had a Myspace page. Although she'd apparently converted a while ago, she hadn't reported her fears to anyone she dealt with in Ohio.

Even if she really was legitimately afraid of Dad, why the run across several states? Last time I looked, the city of Columbus, Ohio (where I went to school, and where my son goes to school now) was not an Islamic republic under Sharia law; it's the state Capitol. Thenotable religious fanatics in Columbus are the ones who worship at the altar of Brutus Buckeye..

What dog does Florida have in this fight, and does Florida have enough extra resources in their "social safety net" that they, rather than Ohio, should be dealing with this? (Florida has placed her in foster care in Florida pending more investigation.)

The bigger question, however, is, absent a real plausible showing of danger, what's the state's job in intervening between teenagers and their parents when a minor child, even a 17 year old, says "I've decided X" and one or both parents say "You're a minor, and I'm still supporting you. I say 'Not X, Y!', and as long as you're a minor, you're under my legal control."

Except in unusual cases, the state doesn't intervene in these disputes in intact families. Where the PARENTS disagree, and are going through a divorce, or a custody dispute, the State is much more willing to say that one parent's (or both parents') choices are not in the child's best interest, and is more willing to intervene.

Back in the 1970's, a group of Wisconsin Amish parents objected to the mandatory school attendance laws in effect at the time, and asserted that it interfered with their, and their children's, rights of free exercise of religion. The Supreme Court, in Yoder, agreed. Justice Douglas, always a trouble-maker, raised a thorny question: what's the State to do when a seventeen-year-old, who's clearly a "minor child' for some purposes, but a "person" under the Bill of Rights, says "Here I stand; I cannot do otherwise!" to one or both parents?

Can I say to my child "You'll go to the church [mosque, temple, Kingdom Hall] I say you go to, or you don't get [a driver's license/an I-phone/to go out Friday night/me to pay for college]"? Short of a threat of physical harm, when is it, and when isn't it, the State's business?