Jewish World Review Jan. 14, 2000 /7 Shevat, 5760
http://www.jewishworldreview.com -- THE ELIAN GONZALES controversy vividly illustrates the old maxim that hard cases make bad law.
The 6-year-old survived an attempt to flee Cuba last fall aboard a flimsy boat. His mother and 10 others died in rough seas, and the Coast Guard found Elian Thanksgiving Day, clinging to an inner tube off the Ft. Lauderdale coast.
His Florida relatives want custody of the boy, saying they merely would like to grant his mother's dying wish. The Immigration and Naturalization Service says the boy belongs in Cuba with his dad.
One might expect pro-family conservatives to support the INS, but no: They're accusing Bill Clinton bumping ugly with Fidel Castro. Moreover, many are cheering an astonishing bit of judicial activism by Miami-Dade County Family Court Judge Rosa Rodriguez, who awarded temporary custody of Elian to his great uncle and suspended final dispensation for two months.
The judge effectively said: 'It doesn't matter whether your father is a fit parent who loves you and will devote himself wholly to your welfare. I don't like where you live. So you must stay where I say.'
The problem is, the judge has no such authority. As Attorney General Janet Reno noted in a Jan. 12 letter to the attorneys representing Elian's U.S. relatives, federal law governs immigration.
The closest legal precedent occurred nearly 20 years ago, when a court let 12-year-old Walter Polovchak stay in the United States, rather than returning to his family in the Soviet Union. (Ronald Reagan's attorney general, Edwin Meese, argued for deportation.) While the judge ruled that Polovchak could form decisions of his own and hence could stay, nobody says Elian has similar levels of maturity.
Now, consider the harsh facts: Cuba is an awful, decrepit place, run by an aging puppet of a dead communist empire. Elian most likely would experience greater material prosperity in the United States than in his homeland. (His father had to sell his car, a 44-year-old DeSoto, to pay for phone calls to America.) He would enjoy more religious freedom and individual liberty. He would attend better schools, receive better health care and join a society that traditionally honors those yearning to breathe free. In short, America is unfathomably superior to Castro's Cuba.
That being the case, most of us hope for Elian and his dad to set up housekeeping here, far from Castro's deprivations and depredations. George W. Bush has dodged tough questions on the issue by conjuring up such a happy-ending scenario. Unfortunately, that's not likely to happen -- and the Cuban government almost certainly won't meet the Gonzales family's demands that the boy's father and grandparents tell a U.S. court what they want for the youngster.
As a result, Elian has become a human shield for activists who want to argue about the merits and demerits of Castro. Yet, this controversy isn't about the Cuban caudillo. The central question is whether the United States wants to separate a father and son over conditions that neither person caused or can control.
Our courts routinely strip parental rights from people who neglect or abuse their children or prove unworthy in other ways. But they don't normally ignore blood ties -- and they shouldn't here, unless they determine that Juan Miguel Gonzales a) is a creep or b) truly wants his boy to stay in Florida.
The political case for sundering family ties depends on the presumption that we know the future. But we don't. Research indicates that young men are far more likely to drop out of school, use drugs, abuse women, rape, assault, kill and generally slouch through life as wastrels and thugs if they don't receive nurture from their fathers. The one obvious fact ignored in virtually all of the public discussion is that love makes a difference, and that the love between parents and children is unlike any other: It is more selfless, heroic and caring.
There's no way of predicting what lies ahead in Cuba -- or, for that matter, whether the challenges of his harsh young life have prepared Elian for achieving great things in his homeland.
One thing's for sure: Judge Rodriguez establishes an intellectual foundation for doing awful things in the future -- ripping kids from parents who live in unsavory places or obliterating families for politically popular reasons. She might even provide the basis for affluent relatives to seek custody of children living with their parents, but in poverty.
In ruling that the boy should return to his father, the INS isn't kissing
up to Castro. It is acknowledging that sacred family ties outweigh virtually
all other considerations -- and that, sometimes, the law prevents us from
doing things we dearly would love to