Let me confess to two personal reasons for being especially interested in this fascinating essay. First, Zalman Rothschild is probably the most interesting single student I have been privileged to interact with in what is now two decades of regularly visiting the Harvard Law School. He is not only brilliant – not such an unusual trait at HLS. More to the point, he has an unusually compelling personal history, as someone who left his initial life as a Chasidic Jew and became a member in good standing of the American legal academy. I have suggested to him since first getting to know him that he should write a memoir, as well as standard-form scholarly articles. Though this is no memoir, it is undoubtedly colored by his experience as what might be described as a “refugee” from a community that he now regards as unacceptably insular and, in its own way, abusive of children.
The second reason for my particular interest goes back to my days as a graduate student in government, many decades ago. On those days when I considered actually writing a dissertation in political theory I imagined addressing the difficulty that liberal political theory has in handling children. They are, after all, not the truly autonomous decision-makers so central to traditional liberalism. “Arm’s-length bargaining” and “consent” make no sense for the truly young. They are, as writers going back to Plato and Aristotle recognized, being formed by the communities within which they are raised, with no say over that character formation. I was wise enough not to become a full-fledged political theorist, but perhaps that interest helps to explain why the one job I’ve ever had as a practicing lawyer was a year spent working at the Children’s Defense Fund. Children do indeed need advocates. Not surprisingly, however, those who advocate for children are confronted with the same issues of autonomy and what is correctly called paternalism. One might have children as “clients,” but, for better or worse, it is rare indeed for the representation to be truly guided by the actual wishes of the client, unless the “child” is at the cusp of “adulthood” (whatever exactly we think that might mean). One could advocate for them, but they were often not able to speak or structure the representation in their own behalf.
Rothschild’s article itself begins with the relatively simple point that the right to “exercise” one’s religion must, at least in a liberal society, also entail the right to “exit” religious practices and communities. For adults, this is unproblematic, at least abstractly speaking. Even if some pay the costs of leaving friends and family behind—or, as is the case with some religious communities, being “shunned” by them—there is no question at all about the legal entitlement to forge new identities. This may involve “conversion” from one religion to another or the decision to leave religion behind entirely, to announce one’s proud identity as an atheist. One might compare this to a basic right to emigrate, the foundation stone, after all, of the United States as a society.
But Rothschild’s essay is not primarily about adults, save as they inevitably bear the consequences (or scars) of their socialization as children or, indeed, have become parents themselves. Not surprisingly, he begins with an extensive analysis of the seminal Yoder case, which formally concerned the ability of the State of Wisconsin to require that children receive at least 10 years of education as against the 8 years that the Amish thought was sufficient for their children. As all readers presumably know, the Court, through Chief Justice Burger, ruled against Wisconsin, in part because Burger made it clear that he admired Amish culture and wished to protect it. Only Justice Douglas, in dissent, noted the fundamentally triadic aspect of the case. It was not simply a contest between Wisconsin and a singular Amish community. Instead, the central issue was in fact the socialization of the young. Would they have at least a minimal introduction to what the State believed constituted certain basics for living in contemporary society – even if, sociologically, they were unlikely to wish to do so? Or, instead, could they be limited to the education deemed sufficient by a stunningly insular society that prides itself on its rejection of “modernity”? This would, of course, make it more difficult in the future for those who might in fact “wish” to exit the community. After all, what most of us know about the Amish is that they drive horses and buggies rather than submit to “modern” automobiles. That is, of course, the tip of the cultural iceberg.
Yoder makes it impossible to deny that at least on this occasion we are necessarily talking about “group rights,” a concept discomforting for most Americans who have deeply absorbed the notion of “individual rights” as part of a broader culture of individualism. Most of the classic “religious freedom” cases, even if they necessarily refer to the litigants’ membership in particular groups, such as Seventh Day Adventists (Sherbert v. Verner) or Jehovah’s Witnesses (take your pick!), can be redescribed as cases about what the Court, in other contexts, has described as “lonely individuals” protesting against the heavy hand of the state. Consider only Thomas v. Indiana, where the Court, also through Chief Justice Burger, went out of its way, over the dissent of then-Justice Rehnquist, to protect a decidedly idiosyncratic Jehovah’s Witness who claimed a right to unemployment compensation after deciding he could no longer work in a job that involved making weapons of war. But there is no way to avoid the fact that Yoder is all about a religious community, comprised not only of choice-making adults, but also, far more important, children whose socialization was essential to the maintenance of the community.
As noted above, Rothschild has emerged from a community some of whose members certainly emulate the Amish in the degree of their rejection of what almost all of “us”—i.e., persons actually reading this comment—define as contemporary culture. Nomi Stolzenberg and David Myers have written a marvelous book, American Shtetl: The Making of Kiryas Joel, a Hasidic Village in Upstate New York, about one specific Hasidic sect, the Satmars. They are distinguished for their almost total rejection of modernity. It’s not simply that they forbid access to the Internet or seeing movies. More to the point, their male children, especially, are educated only in traditional Jewish sources of Torah and Talmud and in Hebrew or Yiddish, with facility in English being relatively minor.
So, obviously, leaving the community is especially difficult not only because of the personal anguish attached to such decisions – recall that at least some Orthodox Jews say the Kaddish, the prayer for the dead, if a child marries a non-Jew – but also because of the practical reality that males, especially, may be extraordinarily ill-equipped to make the transition. It is, perhaps, comparable to the Trump Administration’s deporting undocumented aliens to countries in which they’ve never lived, whose languages they don’t speak, and whose cultural customs are quite literally foreign to them. Ironically or not, it’s possible that Hasidic women are in a better position; because they are deemed unfit to be educated as Jewish scholars, the highest calling within the community, they in fact are often taught at least some skills that will enable them to get jobs and therefore to support their “scholarly” husbands. These skills may even be “marketable” should they wish to leave the community. Males are not so well equipped.
So one obvious issue, at least to lawyers and political philosophers, is whether the state has a constitutionally protected, or even required, interest in shaping children in a manner conducive to participation in a modern, pluralistic society, should that turn out to be their wish as they get older. But Rothschild also focuses deeply on the fact that the person exiting is often a parent who wishes to bring his or (more commonly) her child along into a remarkably “brave new world.” Not surprisingly, this generates litigation about who controls the upbringing of the hapless child. It is no longer, as in Yoder, the state versus the ostensible religious community. Indeed, modern political scientists would emphasize that all ostensible “communities” are in fact “theys” and not an “its.”
The state, through a family court judge, before deciding who should prevail in the often bitter contests for domination of the child, must first decide how to define the “community” in question and, at least as much to the point, the de facto control that can be exercised over the person emigrating from the community. Within “ordinary” stories of emigration, of leave-taking from one’s community of origin, it is common to discover that some countries forbid emigres from taking almost all of their property, that they are forced to leave with literally only the clothes they are wearing. That is viewed, at least by most lawyers, as a prerogative of the political community, even if one condemns it as harsh. And, perhaps, we accept the verdict of the state in question that it can in effect excommunicate the leave-taker, who then, by definition, is no longer regarded as one of the “theys” comprising the continuing political community. But, then, what about a child. Does the state – or the religious “community” – get to keep the child just as it might get to keep the bank account?
A standard family law lodestar, since the 1950s and ‘60s, has been “the best interests of the child.” From a formal perspective, it is almost impossible to reject that as a standard when addressing the future of given children who, we assume, are incapable of simply dispositively articulating what they themselves consider to be in their own interests. As Rothschild illustrates, one parent may believe that a child should be introduced to the pleasures of watching at least some materials available on television, the Internet, or in movies; the other may consider all of these the road to perdition. There can also, obviously, be questions attached to formal religious observance, including adherence, for example, to prohibitions of encounters between males and females save in highly regulated circumstances. Or, quite obviously, what if one parent has decided to stop keeping kosher? Can a child really be taught that it’s perfectly all right to eat a ham sandwich (perhaps even on Yom Kippur) when spending time with one parent, but that that is absolutely forbidden when with the other? And so on.
One distinction between the Amish and the Satmars is that the former, with some recent exceptions, relentlessly attempt to separate themselves, including paying no heed to the political process. The Satmars, however, like other Hasidic groups, are extraordinarily skilled as political participants, not least because their rebbes, the leaders of the communities, can almost literally dictate significant bloc votes for their favorites in election contests. So Rothschild delineates the long-time controversy over the extent that New York education law – and its requirements as to what constitutes a “basic education” – will apply to Hasidic schools that make no serious efforts to provide such an education to their students, with potentially lifelong consequences for those who might at a later time wish to exercise their constitutional right to “exit” their communities.
Rothschild not only sets out, with great skill, the doctrinal issues that should interest any lawyer; he also limns the realities for the persons involved, including, all too often, children. And he speaks with the authority of someone who truly knows what is at stake. Few questions are more challenging to those who adhere to a faith in “the legal process” – itself often predicated on an ideology based on “individual rights” – as adequate to provide acceptable answers. His essay should be an essential starting point, though, in any future discussions.
