“Make Sure That There Is Nothing in the Religious Upbringing or Teaching That the Minor Child Is Exposed to That Can Be Considered Homophobic”:

A commenter responding to my hypo in which a judge denied a parent custody because the parent’s teaching of traditionalist Christianity was against the child’s best interests suggested that the hypo was implausible, because Christian beliefs are so widespread in the America. Well, it was meant to be pretty extreme, though I suspect that in a few jurisdictions traditionalist Christian beliefs about sexual morality are in the minority.

But let me remind people of this story from 2003 and 2004, though one that arose in the special case of a parent’s Christian teachings being implicitly critical of the other parent. First, the original news story from November 2003:

A Christian mother is appealing a judge’s decision that prohibits her from teaching her daughter that homosexuality is wrong.

Cheryl Clark, who left a lesbian relationship in 2000 after converting to Christianity, was ordered by Denver County Circuit Judge John Coughlin 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.” …

Now, an excerpt from the July 2004 appellate opinion reversing the order, but leaving open the possibility that it could be reimposed:

“While [c]ourts are precluded by the free exercise of religion clause from weighing the comparative merits of the religious tenets of the various faiths or basing [their] custody decisions solely on religious considerations, the family is not beyond regulation in the public interest as against a claim of religious liberty, and neither the rights of religion nor rights of parenthood are beyond limitation.” Thus, evidence of beliefs or practices which are reasonably likely to cause present or future harm to the child is admissible in a custody proceeding.

When parental responsibilities have been determined, § 14-10-130(1) allows the person with decision-making responsibility to determine “the child’s upbringing, including his or her … religious training,” unless the court, after hearing and upon motion by the other party, finds that, “in the absence of a specific limitation of the person’s … decision-making authority, the child’s physical health would be endangered or the child’s emotional development significantly impaired.” …

Here, the trial court observed that Clark and McLeod will never be able to agree regarding the religious upbringing of the minor child and awarded Clark sole parental responsibility concerning religion. Thus, Clark is the “person … with responsibility for decision-making” within the meaning of § 14-10-130(1)….

[W]e cannot determine from the findings whether the trial court applied the correct standard in limiting Clark’s right to determine the child’s religious upbringing. Although McLeod argues this restriction is a mere nondisparagement clause, we cannot uphold it on this basis because it is not so described in the trial court’s order. Nor is it mutual.

Hence, given the important role that religious freedom enjoys in our constitutional scheme of ordered liberty, and the mandate of § 14-10-130(1), we conclude that remand is necessary….

So the restriction was lifted — but if the trial court judge concludes that without the restriction on anti-homosexual comments, “the child’s emotional development [would be] significantly impaired,” then the restriction could be reimposed.

The Court of Appeals also upheld the trial judge’s decision to award joint custody to the mother and the ex-partner, though the ex-partner hadn’t adopted the child. The court’s decision was based on the “psychological parent” doctrine: Once someone has raised a child for many years, from near infancy, with the legal parent’s permission, it’s in the child’s best interest that the resulting psychological bond — which is much more important to the child than any legal or biological bond — be maintained. The court also concluded that the doctrine doesn’t violate the legal parent’s parental rights under the Constitution (distinguishing Troxel v. Granville, the case striking down a grandparent visitation law). That part seems quite sensible to me.

What do you folks think?

1. Should a judge be free to order a parent 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”? Should the judge be allowed to so order only after a specific finding that without the restriction, “the child’s emotional development [would be] significantly impaired”?

2. If your rationale is that the judge can and should order a parent not to teach things that could undermine the child’s respect for the other parent, say that Clark’s ex was a racist. Should the judge have been allowed to order the child to “make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be consider racist-phobic”?

I believe that hostility to lesbians is indeed morally wrong while hostility to racists is morally right. But does the First Amendment distinguish the two, and conclude that orders not to teach a child homophobia are permissible (at least when such teachings could undermine the child’s respect for the other parent) while orders not to teach a child hostility to racists are impermissible (even when such teachings could undermine the child’s respect for the other parent)?

(For my answer to these questions, see PDF pages 86-88 of my article.)