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Agreements to Raise a Child in a Religion:

My coblogger David Bernstein wrote, in a comment to my preference-for-agnostic-parent hypothetical,

It strikes me that if there is uncontested evidence that the parents agreed to raise their children in a certain, nonabusive way when they got married, the parent that follows through on the deal SHOULD be favored, whether the agreement was atheism, or religion, or whatever.

Here's my thinking on this. I'm generally a believer in enforcing contracts, even when a party changes his mind about them. The power to enter into binding contracts is an important power.

1. Nonetheless, precisely because contracts are binding, the legal system has to distinguish contracts that the parties intend to be legally binding from plans or tentative agreements that express a party's current views but that don't purport to legally bind the party in the future. "I will always love you" said to a lover is a classic example: If you want to make it legally binding (even to the limited extent that marriages are legally binding these days), you have to go through some pretty significant formalities. Without those formalities the agreement is understood as expressing a desire, a hope, or a plan, not a legally binding commitment.

Likewise with "[Christianity / objectivism / music lessons] are an important factor to me, and I feel strongly about raising our daughter this way." One can be entirely sincere about this, and in fact plan to stick by this, without intending to make a binding commitment. In fact, many people -- knowing how time and experience leads us to change our views on many subjects -- would rightly balk at making such binding commitments (just as they often, though not always, balk at turning "I will always love [my boyfriend/girlfriend]" into a binding commitment).

So if there is evidence that the parents agreed to make a binding commitment to raise their children in a certain, nonabusive way, there would be at least a serious argument in favor of enforcing the contract (though one would need to know to what extent the best-interests test can be displaced under state law by such contracts). But it seems to me a mistake to infer such a binding, long-term commitment simply from an agreement in principle, as to matters on which people's attitudes often change with time.

2. It's also important that contracts, especially contracts about religion, are clear enough that courts can sensibly enforce them. An agreement's vagueness is often a sign that the parties didn't intend it to be binding. But given the Establishment Clause constraints on theological judgments by courts (even when the courts are interpreting contracts or wills that expressly call for such judgments), it's especially important that the contract be clearly applicable using the court's strictly secular interpretive approach.

My sense is that many casual agreements about religion or the importance of religion are not sufficiently clear. "I agree that we should raise our child Jewish," for instance, leaves a great deal uncertain. Obviously, the particular strain of Judaism isn't mentioned. Neither is the intensity of the raising -- does it mean that Judaism (whether Orthodox or Reform) would be a pervasive part of the child's life, just that the child would be exposed to some of the most important aspects of Judaism (i.e., become a High Holidays Jew, though perhaps with a bit more intensity around Bar Mitzvah time), or something in between? Neither is the specific degree to which the raising would involve organized religion, rather than just individualized study. Neither is the degree to which the child would be exposed to rival views (which may become important if the parents divorce and one converts to a different religion, and exposes the child to that religion without otherwise interfering with the child's religious rituals).

Now each of us can have a sense of which side is complying more closely with even a vague agreement. There might even be a good deal of consensus on the subject. But in such cases, I don't think this sort of consensus is an adequate basis for courts to decide, because it involves too much subjective judgment about what are the "true" rules of certain religions, and which of those are "central" -- something courts are barred by the Establishment Clause from doing.

For instance, is an agreement to raise the kids Jewish violated by a parent who tries to raise them as Jews for Jesus? I know that many Jews believe it would be, and in some sense they might be right. But I don't think that a secular American court is allowed to decide whether or not Jews for Jesus is "really Jewish," whether Reconstructionist Judaism is "really Jewish," whether Reform Judaism is "really Jewish," or for that matter whether Mormonism is "really Christian."

So it seems to me that even if the parties are intending to create a legally binding agreement (which they often won't be), many kinds of religious agreements would still be unenforceable by secular courts. Perhaps some might be, for instance an express agreement that the child would be sent at least twice a month to churches of a particular organization, or an agreement that the religious terms of the agreement are to be subjected to binding arbitration through some private religious body (such as a Jewish Beth Din). But they would have to be drafted in such a way as to avoid the need for religious decisionmaking by a secular court.

3. Finally, I should note that if one thinks the court making a custody decision should mostly focus on the best interests of the child (subject to whatever constitutional constraints there may be), then it's not clear to me to what extent the court can consider the parties' contract, which need not be aimed at the child's secular best interests. (Sometimes departing from such a contract would be against the child's best interests, but not always and not necessarily even most of the time.) But one could certainly argue that state family law should sometimes subordinate the best interests standard to reasonable agreements between the parties -- setting aside the other objections I raised above -- especially when enforcing such agreements can often yield more certainty, quicker and cheaper resolution, and decreased acrimony.

GD (mail):
This non-Catholic had to agree in pre-Cana sessions with our priest that I would raise my children Catholic. I understood this to be a requirement in order to be wedded in the church.
2.29.2008 5:50pm
CrazyTrain (mail):
I should note that if one thinks the court making a custody decision should mostly focus on the best interests of the child (subject to whatever constitutional constraints there may be), then it's not clear to me to what extent the court can consider the parties' contract

That seals the deal for me. As long as we have a "best interests of the child" test (and I think that is the right thing to have), contracts such as the one envisioned here (agree to raise the kid Jewish/Muslim/Xtian) are just going to be extremely problematic and will likely always entangle the Court in issues that we don't want secular courts dealing with.
2.29.2008 6:06pm
TruePath (mail) (www):
so it still seems to me that you are confusing normative judgements about how/when you want agreements to be contractually binding and when the establishment clause requires they not be binding.

To put it differently when does a legislative policy of recognizing a certain vague sort of agreement as having legal significance rise to the level of establishment clause violation? What about a law which recognized formal signed statements of intent even when those statements were unspecific about what precisce form that brand of religion should take, i.e., the judge had to infer intent like with other sorts of vague contracts?

If you do think this passes constitutional muster I don't see how you can distingush the current situation. The implicit rule applied here is just as precisce as one which says by default these intentions have no legal weight unless you specifically state your desire to be bound by it. Given this sort of judicial rule everyone knows that should they not wish their intention to have legal weight they must express this preference. It's only convienence that distingushes the two rules.

Finally I would argue you are placing too much emphasis on the status of this as a contract. The point is if contracts about religion can be value why can't also less extreme forms of agreement?

Also I think we have to totally ignore the child's best interests here since it would be most amazing if religious and nonreligious upbringing was exactly as likely to benefit the child but the establishment clause keeps evidence about Catholics being less happy I'd whatever out of our courtrooms.
2.29.2008 6:08pm
CrazyTrain (mail):
Somewhat related to my last comment, note that (as I understand it) courts do not enforce agreements not to pay child support. And that strikes me as absolutely right. How can a parent purport to waive a child's right to support?
2.29.2008 6:08pm
rc:
Like it or not, the courts are dragged into the question of 'who's the better parent.' Now, I agree that a passing interest in taking your kid to church should not be construed as a binding contract to which a parent should be held accountable. That's every bit the can of worms that it seems.

But the 'contract' the courts are interested in is not 'I'll take the kid to church'... the contract is 'I'll be a good parent.' And that should be construed as an actual contract or agreement or etc.

The trouble is that the courts have very limited say in the actual terms of the contract. They're limited to enforcing terms dealing with the basic needs of the child (provision, safety, etc). But when the courts are forced to make a decision between two parents, they have to identify contract terms and find a way to evaluate compliance.

True, something like a past agreement to take a kid to church should not be a binding term in the parental contract. Any such binding agreement would value dogma over the kid's best interest.

But the courts have to rule on who does a better job fulfilling their parental contract. So they'll start looking for terms and measures. The father in this case listed a term (not a binding term, just a changable agreement) to take his kid to church. Using a secular measure, the courts can determine that the father does indeed take his daughter to church every week.

The mother, on the other hand, does not. Should this be viewed as a breach of contract? No. But while the father offers an agreement, sticks by it, and provides tangible proof of compliance, the mother offers... nothing.

The mother might very well be fulfilling her parental contract, but what are the terms? Where is the proof? The mother's contract is blank, but the father provides at least one tentative, yet fulfilled and verifiable term. When evaluating who best fulfills their contract, this factor should count in the father's favor.
2.29.2008 6:28pm
jim47:
GD: my parents had to do the same thing when they got married, and so I was raised in the Catholic church even though by the time I was born neither of my parents were believing christians. It'd be hard to determine how much of that was motivated by wanting to fulfill the agreement and how much was motivated by the same things that made them think the agreement was an okay one to make, but they did follow through with it. It wasn't until later in my life that exposed to one of my parent's contempt for Catholicism.
2.29.2008 6:36pm
Eugene Volokh (www):
TruePath: The Establishment Clause bars courts from making certain kinds of religious decisions even when interpreting documents -- contracts, wills, or deeds -- that would be considered sufficiently precise for enforcement if their terms weren't religious. See Jones v. Wolf, 443 U.S. 595, 604 (1979) ("a civil court must take special care to scrutinize the document in purely secular terms, and not to rely on religious precepts in determining whether the document indicates that the parties have intended to create a trust"). Thus, even if a court could say that "we agree to raise our child to learn to play the guitar" is breached when a parent tries to teach the child to play the violin instead, a court can't say that "we agree to raise our child Jewish" is breached when a parent tries to raise the child as a Jew for Jesus: The latter requires religious judgments in interpreting the contract, which the Court is not allowed to engage in.

As to "if contracts about religion can be valu[able] why can't also less extreme forms of agreement" -- contracts about religion might be considered by courts precisely because they represent the party's agreement to be legally bound. "Less extreme forms of agreement" shouldn't be enforced precisely because the parties didn't agree to be legally bound by them.
2.29.2008 6:36pm
Roger Schlafly (www):
Even if the parents had a written and signed agreement at the time of the marriage regarding how to raise the kid in the case of the divorce, the family court would be likely to ignore it. The prevailing family court dogma is that the judge's opinion about the so-called best interest of the child overrides the opinions of the parents.

The unfortunate situation is that parents cannot contract for the care of their own kids as long as the family court has unlimited power to second-guess the parents.
2.29.2008 6:37pm
rc:
Parents are not lawyers or business entities. And like it or not, the courts have deemed necessary to get involved in custody disputes and decide who's the better parent.

Sometimes, sorts of argreements and sorts of measures come along to help the court evaluate how well a parent is fulfilling the contract he wrote for himself and his kid.

This is more a measure of maturity and responsibility than it is a measure of legal contractual compliance. Sadly, this seems to venture into psychology, which I find to be even more dangerous than religion.

But I think it comes down to a choice between getting the courts out of the custody business, and finding reasonable ways to measure parental maturity and responsibility...
2.29.2008 6:51pm
rc:
rc: "Parents are not lawyers or business entities."

What I meant by that is- is strict contractual law the best way to evaluate parents? They're not lawyers or treaties or businesses...
2.29.2008 6:53pm
here today; gone tomorrow:
GD (above) says that s/he had to agree in pre-Cana sessions to raise any children as Catholics in order to be married in the Catholic church.

Things change in the Catholic Church. No idea when you married. When I married in 1974, I was the non-Catholic. Husband-to-be paid $25 to get a church dispensation in order for the church to give its "full force" to our marriage.

I did NOT have to agree to raise any children as Catholics. All that I had to do was witness my husband-to-be signing a statement in which he said that his choice was to rear any children in the Catholic faith.

Between the two of us, there was the informal agreement that any children would be reared as Catholics.

So, when the kids came along, I lived up to my bargain: My kids are "properly papered Catholics": They were baptised. They made First Communion. They went through Confirmaton.

And they were forced to sit through Mass often enough and regularly enough as children that they now can't stand the Catholic church.

So, did I live up to my informal bargain?

Just going to church (or to any other house of worship) on certain designated days is no guarantee that you're producing a matching product. Not every kid drug to Mass every Sunday of his childhood is thinking, "I'm a Catholic; I'm a Catholic." ... Some are thinking, "What a load of crap!"
2.29.2008 6:58pm
here today; gone tomorrow:
As an addendum, I'm reminded of a man I met sometime in the 1970s. Last I heard, he'd been accepted at Harvard Law. He had been raised Jewish. He said that he became an athiest when his mother forced him to go to Hebrew school to prepare for this bar mitzvah. He said that he prayed and prayed and prayed not to have to do it. Still, his mother forced him to do it. ... He said that he decided right then, "There is no God." He was 22 and said that he had considered himself an athiest ever since he lost that battle with his mother.
2.29.2008 7:04pm
Paul McKaskle (mail):
This issue was decided by the European Court of Human Rights in the case of HOFFMANN v. AUSTRIA (1994) 17 E.H.R.R. 293. The parents, when married, were both praciticing Catholics. After the children were born (and were around seven or so) the mother converted to become a Jehovah's Witness and in the ensuing divorce the Austrian Courts awarded the father custody so that they could continue being brought up as Catholics. A Chamber of the Human Rights Court reversed, 4-3 (with the dissenters being judges from predominantly Catholic countries) holding that religion could play no factor in the decision. (It took a number of years before the Human Rights Court decided the case and by the time of the decision the children were in their mid-teens and had been living with their father all that time.)

In California, two older intermediate appellate court cases involving a Jehovah's Witness parent come to opposite results. In Wilson v. Wilson, 137 P.2d 700 (1943) the religious issue appeared to be the dominant factor in the trial court's decision to give custody to the father, who was not a Jehovah's Witness. The appellate court affirmed. In Cory v. Cory, 161 P.2d 385 (1945), the appellate court (without mentioning the Wilson case) reversed the trial court which had awarded the father custody in preference to the mother, primarily on the basis that the mother was a Jehovah's Witness. (The trial court's reasons in Cory were mostly directed at whether the children should be allowed to pledge allegiance to the flag at school, which the father wanted and the mother did not.) Neither case was reviewed by the California Supreme Court, so, technically, a trial court in California could follow either case. There was a third California case, Quiner v. Quiner, 59 Cal.Rptr. 503 (1967), in which the trial court refused to give custody to the mother who belonged to a religious sect (the Exclusive Brethren) in which voluntary association with non-members of the sect or any activities outside the family were strictly forbidden. This meant, according to the trial court, that the child, inter alia, could not attend movies, have school friends outside the sect, engage in school athletics or even have a record player. The Court of Appeals, in a 2-1 decision, reversed and awarded custody to the mother on the grounds that her religion should not be a factor in awarding custody, citing the Cory case but not mentioning the Wilson case. However, the court allowed the father some visiting rights which, presumably, would allow the son to associate with others not a member of The Exclusive Brethren during such time (including, of course, his father) and engage in non sect-related activities (including going to movies with his father, for example). All of this, of course, would be completely contrary to the teachings of the sect.

The California Supreme Court granted a hearing on the case on its own motion. This is an extremely rare occurrence in California (and, in fact, all but one Justice voted to grant a hearing) but a grant of a hearing automatically vacates the Court of Appeals opinion so that it cannot be cited as precedent. According to the attorney for the mother, after the hearing was granted the Clerk of the Supreme Court contacted both him and opposing counsel on several occasions and said the Chief Justice (Roger Traynor at the time) "wanted the case settled." The parties did settle shortly thereafter and the further review in the Supreme Court was dismissed.

Because the Supreme Court granted a hearing, the Quiner opinion from the Court of Appeals does not appear in the "Official Reports" of California cases. However, the West Publishing Company publishes Court of Appeal cases in the California Reporter even if they have subsequently been vacated. Thus, there is a citation available for the case, as shown above, even though it can no longer be cited as authority. As soon as it was vacated it lost all of its precedental value. However there are several out of state law review comments which cite--quite improperly--Quiner as authority on the point it decided.
2.29.2008 7:19pm
Waldensian (mail):
If people really believed in the truth of their religions, they'd be willing to wait until their kids were 18 to expose them to the teachings of their faith. At that point, the kids could presumably make a knowing decision to adopt the (obviously true) tenets of the one true faith, whatever it is.

But of course no rational 18-year-old would ever believe all that hocus-pocus if it was presented that late in life. You have to be indoctrinated at an early age to believe crazy stuff like that.

As usual, Doug Stanhope explains this best.
2.29.2008 7:19pm
DavidBernstein (mail):
Eugene, I read this post and your comment on the previous one. I don't have time for a full response, but to briefly address your point about how difficult it would be for judges to figure out what was "intended" many years earlier: (1) in some cases, it's either uncontested that there was at least a vague agreement, or there is objective evidence (spouse converted to the religion after meeting partner but before marriage, spouse agreed to marry in a Catholic ceremony, priests have policy of only marrying nonCatholics who agree to raise the children Catholic; (2) family law judges are required now to make much more difficult factual decisions than this one, not least "what is in the best interests of the child".
2.29.2008 7:19pm
here today; gone tomorrow:
David, Catholic priests are not allowed to have their OWN "policies" about whether to serve as the priest at a marriage between a Catholic and a non-Catholic. Those rules come down from the Pope. And, in the Catholic faith, no priest marries anyone; rather, the couple marry each other. The priest acts as a witness, but it's the couple who marry each other and make vows before God.

And, the Catholic church has not required for more than 25 years that non-Catholics marrying Catholics make any promises about how children will be raised. The last I knew, all the non-Catholic must do is be aware that the Catholic partner wants any children reared as Catholics.

But the reality is that religion and faith are so impossible to prove or identify that these arguments become truly absurd. Is one bringing a child up as a Catholic simply by getting all of the paper work completed and having the kid at Mass every Sunday? I can show you good evidence that such might be the best way to turn a kid AGAINST the Catholic Church. The quality of "faith" is not something that can be easily captured or defined, and the courts are not going to be able to tell whether the parent is "doing everything proper" to train a child into the specified religion, or to turn the kid against the religion.

And that would be ANY religion. They're all plenty open to being laughed at.
2.29.2008 7:37pm
Mr. Liberal:
The idea that you should be able to totally control the future through contract is foolish.

There is a huge difference between a contract for a sale of goods, and an agreement to raise kids according to a particular religion. We should enforce the former contract, but not the latter.

It is too impositional on individual liberty to not let people change their minds in the latter case.

But since when did libertarians care about actual liberty? All I see is an unnuance view that all contracts should be enforced.

These sorts of contracts have the same liberty problems as contract where one agrees to be a slave or agrees to a term of indentured servitude.

This is not the sort of agreement that society as a whole should be enforcing. We should put issues of fundamental liberty over contract. That should be obvious to anyone with a love of freedom (i.e. not libertarians).
2.29.2008 7:51pm
Not so simple:

If people really believed in the truth of their religions, they'd be willing to wait until their kids were 18 to expose them to the teachings of their faith.

This proposal may sound logical, but it only works in practice for those religions that do not teach as part of their truth that parents should raise their children according to their religious faith.
2.29.2008 8:27pm
NI:
The courts can give lip service to being religiously neutral and only making secular decisions, but the problem is that "the best interests of the child" is inherently a religious determination. Ultimately a judge is going to have to decide whether the child is better off being raised with religion vs. non-religion, or mainstream religion vs. fringe religion, and that requires making a religious determination. The fact that in this particular culture most judges prefer mainstream religion to anything else doesn't change the analysis, because in a mirror-opposite culture in which judges preferred non-religion they would still be making a values call. In fact, the older I get, the more I believe that having a values-neutral society is a practical impossibility.
2.29.2008 8:29pm
Rock Chocklett:
If people really believed in the truth of their religions, they'd be willing to wait until their kids were 18 to expose them to the teachings of their faith. - Waldensian

So we should expose our children only to ideas we think are false? Then the atheist should raise his children in a church until they are 18. At that point, the kids could presumably make a knowing decision to reject the (obviously false) tenets of the religion.
2.29.2008 8:43pm
Waldensian (mail):

So we should expose our children only to ideas we think are false?

I'm not sure I understand this. Are you saying that not indoctrinating a child in religion means you are necessarily teaching them something false?
2.29.2008 9:52pm
Waldensian (mail):

This proposal may sound logical, but it only works in practice for those religions that do not teach as part of their truth that parents should raise their children according to their religious faith.

Very true.

But I submit that there is a reason that such religions teach, as an article of faith if you will, that children must be indoctrinated. As Doug Stanhope points out, if you spring that stuff on somebody for the first time when s/he is an adult, you probably won't make believers out of them.

For example, if I walked up to you on the street tomorrow and informed you that the universe is run by a giant omnipotent invisible unicorn, who was born fully formed from the forehead of the sun god, you would probably think I was daft.

However, if I started teaching you that from the age of 6 months onward, complete with required Monday school (the unicorn rests and reflects on Mondays), I'll bet I'd have you believing it in no time.

And my Unicornian religion is not demonstrably more preposterous than any number of real religions.
2.29.2008 10:01pm
Waldensian (mail):

"The best interest of the child" test is far too subjective to be a "test." It's fine political rhetoric (after all, who can be against the "best interests" of a child?) but no proper standard of law. In practice, it boils down to whatever the trial judge personally prefers for the children, because the standard of review on appeal tends to defer to the trial court absent clear abuse of discretion. Accordingly, provided that the trial judge is careful in his choice of rhetoric, he can impose his personal child-rearing preferences (including favoring certain religious beliefs or opposing them in the name of neutrality) on other people's children with broad latitude and almost no accountability.

I think this is indisputably true and truly regretable. I confess, however, that I am hard pressed to figure out how to make the situation better.
2.29.2008 10:04pm
TruePath (mail) (www):
Eugene Volokh said:


("a civil court must take special care to scrutinize the document in purely secular terms, and not to rely on religious precepts in determining whether the document indicates that the parties have intended to create a trust"). Thus, even if a court could say that "we agree to raise our child to learn to play the guitar" is breached when a parent tries to teach the child to play the violin instead, a court can't say that "we agree to raise our child Jewish" is breached when a parent tries to raise the child as a Jew for Jesus: The latter requires religious judgments in interpreting the contract, which the Court is not allowed to engage in.


I think you are assuming that more is required of the courts than truly is. I agree that the court can't decide matters of theology, e.g., it couldn't rule whether homosexuality is anathema to the moral teachings of the bible. However, even in the situation regarding Jews for Jesus that you consider that isn't required. What is required is a determination of the intent of the person when they agreed to raise their child Jewish. Moreover, even if you insist that this counts as a theological fact it's not the case that courts are barred from using theological facts, only that they must turn to the appropriate ecclesiastical body to settle such disputes.

On the second point I concede that it's BAD to treat such vague agreements as contracts I just don't see how we get from bad idea to unconstitutional here.
2.29.2008 10:11pm
jdege (mail):

So if there is evidence that the parents agreed to make a binding commitment to raise their children in a certain, nonabusive way, there would be at least a serious argument in favor of enforcing the contract (though one would need to know to what extent the best-interests test can be displaced under state law by such contracts).

Have you ever sat through a baptism and actually listened to what the parents and the Godparents are agreeing to?


Celebrant

Will you be responsible for seeing that the child you present is brought up in the Christian faith and life?

Parents and Godparents

I will, with God's help.

Celebrant

Will you by your prayers and witness help this child to grow into the full stature of Christ?

Parents and Godparents

I will, with God's help.



It certainly sounds like a contract to me.
2.29.2008 10:31pm
Eugene Volokh (www):
TruePath: I don't think the analysis in your first paragraph is quite correct, and the best way of seeing that is by considering this phrase -- "Moreover, even if you insist that this counts as a theological fact it's not the case that courts are barred from using theological facts, only that they must turn to the appropriate ecclesiastical body to settle such disputes." The "this," I believe, refers to the question of whether Jews for Jesus counts as Jewish. What is the "appropriate ecclesiastical body to settle such disputes"?
2.29.2008 11:01pm
Judicious Overlord (mail):
Eugene, contracts need consideration. hint: monetary consideration, or at least something that is worth money. they also need agreement, certainty, and INTENTION TO CREATE LEGAL RELATIONS.

Was this post a joke?
2.29.2008 11:58pm
here today; gone tomorrow:
Judicious Overlord, this whole discussion is goofy, but I'll add my two cents since Eugene is paying for the hosting: In exchange for my agreeing to raise any future children as Catholics (in the special way that only I could do, see above), my husband gave me his sperm-filled semen, which I was desperately seeking.
3.1.2008 12:20am
Rock Chocklett:
Are you saying that not indoctrinating a child in religion means you are necessarily teaching them something false? - Waldensian

I'm simply questioning your earlier point that a parent who believed in the truth of her religion wouldn't teach the religion to her child because the child would obviously figure it out on her own when she was old enough.

We all teach our children, both intentionally and subconsciously, those things we believe to be true -- whether about God, science, or table manners. We're going to be teaching our children something, and we're certainly not going to teach them things we think are false. A fact, belief, or characteristic is no less true or commendable because we try to instill it in our children.

Also, there are many adults who adopt a deeply-held religious faith after being life-long atheists, agnostics, or nominal practitioners. The converse is also true. But it cannot honestly be said that the only ones who accept religion are those who have been "indoctrinated" as children. Of course, "indoctrination" is a loaded word that means teaching something I happen to disagree with.
3.1.2008 12:41am
Elliot Reed (mail):
I can't see any court allowing a contract between the parents to supersede BICS. Maybe it could serve as a tiebreaker when it's a coin toss, but the idea of a court making a custody decision contrary to best interests of the child because of a parental agreement to raise the child in a certain way is unfathomable.
3.1.2008 12:45am
Rock Chocklett:
For example, if I walked up to you on the street tomorrow and informed you that the universe is run by a giant omnipotent invisible unicorn, who was born fully formed from the forehead of the sun god, you would probably think I was daft. - Waldensian

Well, that depends. I certainly would think you less daft if I had been raised to believe in sun gods and unicorns. But suppose I hadn't been raised that way. Would I necessarily think you were crazy? If the belief had existed for thousands of years, and you were one of billions who believed it, and the throng of believers included many people who I knew were otherwise completely rational, and the believers claimed there were evidences of its truth, I would not dismiss you out of hand.

If, on the other hand, I was raised to belive in a omnipotent unicorn who made all things, and you told me for the first time that humans actually evolved from other animal species, that also would tend to stike me as daft. Any idea dramatically different from what we have been taught may initially sound preposterous, but that by itself is no indicator of the truth of the idea.
3.1.2008 1:01am
CDU (mail) (www):
As Doug Stanhope points out, if you spring that stuff on somebody for the first time when s/he is an adult, you probably won't make believers out of them.
According to the recent Pew Religious Landscape Survey, more than a quarter of all Americans have left the faith they grew up in for another (and that's not counting people switching between Protestant denominations). So evidently you most can make a believer out of someone in adulthood.
3.1.2008 6:17am
strategichamlet (mail):
How do you know the Unicorn is giant if it is also invisible?
3.1.2008 8:41am
Lecturerrich (mail):
I am Presbyterian, and was married to a Catholic in 1988, and during pre-cana it was impressed upon us that Children must be raised in the Catholic faith and if the non-Catholic party could not agree to that the wedding would not happen in the Church.

Also having one child and many neices and nephews I can attest that during the baptism the parents and God parents are entrusted to raise the child in the Catholic faith and swear to do so.
I seem to remember something of the same for Presbyterians and Lutherans.
I do know that friends of mine Irish Catholic Female married a Non-practicing Jewish Male but she had to agree to the children being raised jewish before the wedding would be performed, (jewish ceremony).

My daughter knows I am not Catholic and kindly prays that I see the light some day and convert.
3.1.2008 11:47am
Ken Arromdee:
But I don't think that a secular American court is allowed to decide whether or not Jews for Jesus is "really Jewish," whether Reconstructionist Judaism is "really Jewish," whether Reform Judaism is "really Jewish," or for that matter whether Mormonism is "really Christian."

Couldn't you again use the "what were the parents' intentions at the time" idea? In that case, if the parents would have, at the time they agreed to raise the child Jewish, thought that Jews for Jesus is Jewish, then count it, otherwise don't.
3.1.2008 12:20pm
tvk:
Eugene, I generally agree with your point about intent to be bound, but I take issue with your example and the (high) standard that implies.

"I will always love you" is unenforceable as a promise not because of intent to be bound, but because it is not amenable to judicial remedy. A promise to marry someone, on the other hand, has always been enforceable and doesn't require much by way of formalities at all. First, the promise was enforceable through a breach of promise to marry suit. Second, in several jurisdictions, it was and is still enforceable through common law marriage, which requirs no formalities. The intent can often be proven just by the ex post say-so of the parties and their friends. See, e.g., Dickey v. OPM, 419 F.3d 1336 (Fed. Cir. 2005).
3.1.2008 2:31pm
DG:
{I do know that friends of mine Irish Catholic Female married a Non-practicing Jewish Male but she had to agree to the children being raised jewish before the wedding would be performed, (jewish ceremony). }

Thats actually unusual. Most Rabbi's won't perform intermarriages at all, and those who do are not usually motivated by the future kid's religious upbringing.
3.1.2008 4:40pm
JohnEMack (mail):
How in the world can a court determine the "best interests of the child" in a religious context? Suppose one religion believes in immortality, benign immortality being granted solely to the adherent of a certain religion. Wouldn't salvation of her immortal soul be in the best interests of the child? Wouldn't integration into a community which considers Mooneys to be cranks be in the best interests of a child? Wouldn't ability to read on at least a sixth-grade level be in the best interests of a child? How can a court possibly decide such issues without looking at the tenents of at least some religions?

And what if the parents agree to submit the issue of a child's religious upbringing to binding arbitration? Agreements to arbitrate are accorded deference, even if the determination by the contracting parties of what an arbitor is to decide a given issue is not. I suspect an agreement to arbitrate with a respected rabbi which Jewish sect to bring up a child in might be honored by most courts. I suspect that an agreement to arbitrate which Mormon sect to bring up a child in might be honored by a Utah court and not a Rhode Island court. I suspect an agreement to arbitrate whether a child should be raised Catholic or Lutheran before an acknowledged but unspecified atheist would be laughed at in every court of the country.

I am deeply skeptical of the "best interests of the child" standard in the "preference of religion" context, because I think it cannot be cleansed of the personal background and biases of the judge. Nor can I see how court involvement in religious preference issues can help but violate the establishment clause. Recognizing the difficulties inherent in raising children as Mooneys or Thugees, it seems to me that the only way out is to apply strict contract principles to these cases.
3.1.2008 5:03pm
David Chesler (mail) (www):
DG: Most rabbis won't, some will.

I am a Jew who was married by a rabbi to a Catholic in 1992. On her side, we had to attend pre-Cana, she had to sign that she acknowledged Catholicism obliged her to raise her children Catholic (not make any additional promise to do so) and I had to state that I was aware of that. On the Jewish side, the rabbi we went with required that we attend an Introduction to Judaism class, that the reception not serve treif[*], and that there be an open bar (take that, Ask Amy) because it's improper to charge one's guests for hospitality. (We interviewed another rabbi who was whoring his ordination, who would have read any vows, with no requirements. The rabbi we chose was Conservative-leaning Reform - he wouldn't sign the Aramaic side of the Ketubah, and we are married according to the laws of G_d, not the laws of Moses and Israel.)

At the same time we got the dispensation, my wife wrote on a piece of paper "I promise to raise my children Jewish" and signed it and gave it to me. It later got destroyed in an argument (I said it bound her because it induced me to marry her, she tore it up and said "You would have married me anyway, but OK, it's gone, now are you going to leave?" and I'm sure there was an equitable principle that applied but I was beat long before that.) Things got complicated over the years - we didn't think my Protestant mother-in-law was going to die, leaving my Catholic father-in-law to become a lot more involved. And besides, a Baptisal certificate could be useful if the Nazis come back.

Then my wife died suddenly. (The best laid schemes o' mice an' men gang aft a-gley.) Relevant to this discussion, it's too late to raise them as Jews, but I have made more effort to let them know this is a Jewish home. They aren't attending Hebrew school and won't have bat/bar mitzvot at 13, but they may choose to convert later.

[*]There's an anecdote about that and scallops wrapped in bacon haec olim meminisse iuvabit if anybody wants to hear it.
3.1.2008 5:49pm
Vermando (mail) (www):
Really interesting stuff. I think that the Judicious Overlord nailed it with the lack of consideration - just saying "we're going to raise our kids a certain way" and really being serious about it is not enough. "Sounds like a contract to me" is also no substitute for contractual analysis.

We can also think about how much a court would allow a parent to contract this away at all. Insofar as raising your children a certain way is an expression of your own religious faith it violates your 1st amendment right to freedom of religion.

More importantly, there is a very strong public policy in favor of parental freedom about fundamental choices. Certainly, as Professor Volokh notes, the examples that he gives of "I agree to rise the kid Jewish" would not be clear enough to overcome this very strong presumption, and it is an open question if a court would allow any such restriction on public policy grounds, regardless of how clear it is.

I do not know what the progress has been since the surrogacy cases, but I am pretty sure that, following the reasoning in a case such as Baby M., many courts would just say that this - the ability to change your mind about the faith you want to practice and raise your child in - is not something about which you can contract. Would love to hear some more input on this from anyone else who knows the subject.
3.1.2008 7:38pm
David Chesler (mail) (www):
Isn't getting married, or giving a ring, consideration?
3.1.2008 9:06pm
gattsuru (mail) (www):
If people really believed in the truth of their religions, they'd be willing to wait until their kids were 18 to expose them to the teachings of their faith. At that point, the kids could presumably make a knowing decision to adopt the (obviously true) tenets of the one true faith, whatever it is.


A primary issue with that concept would be that, first and foremost, many religious people consider religion to be a very important if not defining attribute of their morality and system of ethics. They are unlikely to find avoiding common morality tales to be acceptable under any circumstances; such truths would be considered far too important to wait for them to develop. At least within my experience in Lutheran Christian churches and more open conservative, reformist, and traditional synagogues, the majority of discussions seem to focus primarily on those morality tales rather than on the invisible man in the clouds. Said invisible man seems to be a given and fairly indirectly necessary for those discussions rather than a statement of existence or lack thereof.

But of course no rational 18-year-old would ever believe all that hocus-pocus if it was presented that late in life. You have to be indoctrinated at an early age to believe crazy stuff like that.


I'm doubtful of that. Conversion of otherwise rational and even scientific agnostics or atheists to religious groups is rare, but fairly well documented.

I'm a soulless animal, personally, so the whole point is moot for me -- agnostic is probably the best word. That said, given such a viewpoint on religion and scientific analysis, the assumption that agnosticism or atheism is the most logical or rational decision is not necessarily true.

Neither logic nor rationality necessarily require truth or provability, the aspect that religion is typically objectively defined as lacking. Logic is defined by using premises to achieve a given goal. Truth generally isn't a primary goal here : the essential questions involved are academic for all but the very most obscure fields, and can even be argued to not apply relevantly there.

If you presume the goals to be more related to sense of fulfillment, finding a answer (correct or not) to complicated but irrelevant questions that human neurology seems wired to stare at, or simply creating a system of morality which is difficult to shift from given statements, then religion looks a lot more appealing. A lot of this, I'm afraid, is due to the almost Gnostic nature of modern science, where a large portion of normal individuals find it remarkably difficult to understand the scientifically tested experiments -- those without the basic understanding of such do find any real analysis or understanding of the more complicated details to be rather difficult to assess. I'm aware of the various different understandings of CP-violation, but if you try to explain it to even highly rational and scientific minds uneducated in the system, it sounds nearly as ridiculous as the various fictional religions in a schlocky fantasy novels.

It really doesn't help that even Nobel Prize winners (Hannes Alfven, for starters) have called the current model bunk -- to many people the whole thing might as well be a religion with a lot of various sects : none of them can be independently verified or easily analyzed any more than the invisible man in the clouds.

Vermando
Insofar as raising your children a certain way is an expression of your own religious faith it violates your 1st amendment right to freedom of religion.

I'm doubtful of this methodology : the courts have regularly decided on matters that would indirectly punish socially unacceptable freedom of association and speech. It may be an accurate interpretation of the text, depending on how strictly you believe the Constitution to limit civil courts, but it doesn't seem to be a well-used method.
3.1.2008 9:24pm
great unknown (mail):
Professor Volokh:
What is the "appropriate ecclesiastical body to settle such disputes"? If Jews for Jesus claim that they are Jewish, then obviously, they should let a Jewish ecclesiatical body settle the dispute. If they refuse, insisting on a Christian or a strictly Jews-for-Jesus body, then they have proved their non-Jewishness.
An analogy: I can create my own version of Catholicism, with my own self-certifying body. Of course, a major tenet of my True Catholicism is that the imposter in the Vatican and his minions have no say as to what authentic Catholicism is, and in any case, any members of Fraudulent Catholicism would be biased and therefore disqualified to rule on the validity of my True Catholicism.
3.1.2008 10:02pm
Dave Hardy (mail) (www):
Really interesting stuff. I think that the Judicious Overlord nailed it with the lack of consideration - just saying "we're going to raise our kids a certain way" and really being serious about it is not enough.

The consideration is the other's agreement to marry. I leave aside the question of how many such contracts there may be a very practical failure of consideration (grin, been there, done that).
3.1.2008 11:17pm
Waldensian (mail):

How do you know the Unicorn is giant if it is also invisible?

Faith, of course.
3.2.2008 12:04am
Waldensian (mail):

But it cannot honestly be said that the only ones who accept religion are those who have been "indoctrinated" as children.

I agree. On the other hand, I suspect that without the indoctrination of children, most religions would perish from the face of the earth. Most religions seem to appreciate this, from what I can tell.
3.2.2008 12:07am
Waldensian (mail):

Also, there are many adults who adopt a deeply-held religious faith after being life-long atheists, agnostics, or nominal practitioners.

Define "many," and tell me the basis for this claim.
3.2.2008 12:08am
Waldensian (mail):

According to the recent Pew Religious Landscape Survey, more than a quarter of all Americans have left the faith they grew up in for another (and that's not counting people switching between Protestant denominations). So evidently you most can make a believer out of someone in adulthood.

I don't deny that you can make a believer out of someone in adulthood. I do think, however, that it is very difficult to do so when starting from scratch, i.e., when starting with people who have never been meaningfully exposed to the claims of religionists. The Pew survey -- which deals with changing from one faith to another -- is not the same issue.
3.2.2008 12:11am
Waldensian (mail):

According to the recent Pew Religious Landscape Survey, more than a quarter of all Americans have left the faith they grew up in for another (and that's not counting people switching between Protestant denominations). So evidently you most can make a believer out of someone in adulthood.

I don't deny that you can make a believer out of someone in adulthood. I do think, however, that it is very difficult to do so when starting from scratch, i.e., when starting with people who have never been meaningfully exposed to the claims of religionists. The Pew survey -- which deals with changing from one faith to another -- is not the same issue.
3.2.2008 12:11am
Waldensian (mail):
Whoops. sorry for the double post.

The Unicorn will punish me for this.
3.2.2008 12:12am
David Chesler (mail) (www):
Indoctrination - same can be said for all the other stuff we push into our children before they can make a choice, from learning their native language, to foreign language, to sports, to music. There are some kinds of learning that can't happen as an adult.
If it's a family tradition, it's better to start when there are more generations alive. (And it's not just tenets. Depending on the religion, being an adherent is more than merely learning "The nature of the supreme being is _____, the supreme being commands us to _____.")
3.2.2008 12:24am
GunShowOnTheNet.com (mail) (www):
"...Two questions of a very delicate nature present themselves on this occasion: 1. On what principle the Confederation, which stands in the solemn form of a compact among the States, can be superseded without the unanimous consent of the parties to it? 2. What relation is to subsist between the nine or more States ratifying the Constitution, and the remaining few who do not become parties to it?

"The first question is answered at once by recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature's God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed. Perhaps, also, an answer may be found without searching beyond the principles of the compact itself...."

- James Madison, Federalist No. 43

"The opinion of the Federalist has always been considered as of great authority. It is a complete commentary on our Constitution; and is appealed to by all parties in the questions to which that instrument has given birth. Its intrinsic merit entitles it to this high rank; and the part two of its authors performed in framing the constitution, put it very much in their power to explain the views with which it was framed..."

- Chief Justice John Marshall, U.S. Supreme Court, Cohens v. Virginia (1821).

How could it possibly be that those "trancendent" laws are given no credence in our educational or judicial systems?
3.2.2008 12:50am
GunShowOnTheNet.com (mail) (www):
"It has been the error of the schools to teach astronomy, and all the other sciences and subjects of natural philosophy, as accomplishments only; whereas they should be taught theologically, or with reference to the Being who is the author of them: for all the principles of science are of Divine origin. Man cannot make, or invent, or contrive principles. He can only discover them; and he ought to look through the discovery to the Author...."

"The evil that has resulted from the error of the schools in teaching natural philosophy as an accomplishment only has been that of generating in the pupils a species of atheism. Instead of looking through the works of the creation to the Creator himself, they stop short, and employ the knowledge they acquire to create doubts of His existence. They labor with studied ingenuity to ascribe everything they behold to innate properties of matter; and jump over all the rest, by saying that matter is eternal."

- Thomas Paine, Speech in 1797.[The Writings of Thomas Paine, Collected and Edited by Moncure Daniel Conway (New York: G.P. Putnam's Sons, 1894). Vol. 4.]
3.2.2008 12:57am
GunShowOnTheNet.com (mail) (www):
Lastly, and perhaps most importantly:

"This will be the best security for maintaining our liberties. A nation of well-informed men who have been taught to know and prize the rights which God has given them cannot be enslaved. It is in the religion of ignorance that tyranny begins."

- Ben Franklin

"One great advantage of the Christian religion is that it brings the great principle of the law of nature and nations--Love your neighbor as yourself, and do to others as you would that others should do to you,--to the knowledge, belief, and veneration of the whole people. Children, servants, women, and men, are all professors in the science of public and private morality. No other institution for education, no kind of political discipline, could diffuse this kind of necessary information, so universally among all ranks and descriptions of citizens. The duties and rights of the man and the citizen are thus taught from early infancy to every creature. The sanctions of a future life are thus added to the observance of civil and political, as well as domestic and private duties. Prudence, justice, temperance, and fortitude, are thus taught to be the means and conditions of future as well as present happiness."

- John Adams, Dairy entry dated August 14, 1796. [John Adams diary 46, various loose folded sheets, 6 August 1787 - 10 September 1796 (with gaps), 2 July - 21 August 1804. Adams Family Papers on The Massachusetts Historical Society website.]

It does appear that both of the above quotations were indeed accurate, does it not?
3.2.2008 1:10am
CDU (mail) (www):
I do think, however, that it is very difficult to do so when starting from scratch, i.e., when starting with people who have never been meaningfully exposed to the claims of religionists. The Pew survey -- which deals with changing from one faith to another -- is not the same issue.


According to the Pew survey, 60% of people raised as atheists have switched to another category of faith (that's a higher percentage than for people who were raised religious). Now some of these people may have become agnostics, but every other category in the survey is composed of religious believers. As I said before, I think it's pretty clear that adults can and do take up religious faith even if they were not raised to believe in God.
3.2.2008 8:32am
Eugene Volokh (www):
great unknown: It seems to me your proposal is circular. You say, "What is the 'appropriate ecclesiastical body to settle such disputes'? If Jews for Jesus claim that they are Jewish, then obviously, they should let a Jewish ecclesiatical body settle the dispute."

First, to my knowledge, there are no "ecclesiastical bod[ies]" that purport to speak for Jews generally (as opposed to particular streams or substreams of Judaism). But, second, Jews for Jesus' argument would be that no body can claim to speak for all Jews unless it also includes Jews for Jesus; others claim the opposite; you can't resolve that question unless you decide whether Jews for Jesus are Jews in the first place -- thus the circularity.

These are among the reasons why, under the First Amendment, questions such as, "are Jews for Jesus really Jews?," "are Mormons really Christians?," and the like are outside the jurisdiction of civil courts.
3.2.2008 12:30pm
Waldensian (mail):

There are some kinds of learning that can't happen as an adult.

But surely religion isn't one of these. The Pew survey apparently tells us that people "raised as atheists" (whatever that means) are able to, and in fact mostly do, convert to another "category of faith." And proselytizing religions are very, very interested in converting adults, e.g., adults in foreign countries who were previously unfamiliar with the religion at issue.

In fact, I submit that religious learning is precisely the kind of thing that shouldn't happen among children. We know, and even take advantage of the fact that, children frequently are unable to identify supernatural claims that are (we all admit) totally and completely untrue. Exhibit A: Santa Claus.

It's horribly irresponsible, in my view, to teach children that any number of (hotly contested) claims about supernatural omnnipotent deities are, in fact, unquestionably true.
3.3.2008 12:36am
Patrick McKenzie (mail):
>>
It's horribly irresponsible, in my view, to teach children that any number of (hotly contested) claims about supernatural omnnipotent deities are, in fact, unquestionably true.
>>

People hotly contest all sorts of things I intend on teaching to my children. All men are created morally equal, the Holocaust happened and was bad, evolution happens, and that they're Catholic and God requires a few things from them. All of these are true, as I understand them. Why should I get in the habit of saying "Well, dinosaurs actually existed but some folks dispute that for reasons which are not really compelling but which I'm going to go into at length now anyhow to demonstrate to you that I have an open mind about important issues?"
3.3.2008 4:53am
John M. Perkins (mail):
"Best interests of the child" include age specific decisions. Child development experts believe a 3 1/2 year-old needs stability. Father should win the religious battle in this case. Turn the daughter into a 13 1/2 year-old, and the preferences of the daughter is more important than stability. The mother should win the religious battle.

All y'all cannot argue that religion should not be a factor under separation of church and state, and then flop to supporting the mother's religious status. Either way, the court must decide. Of course, in this case, the court had already decided on the father on the issue that the mother had moved away 180 miles, converting the joint custody arrangement into a battle for primary custody.

Apologies for my rudeness Friday, but ...
This sorry butt has a sore spot base on my former attorney career with a practice focused on juveniles, whether delinquents, or child custody (both divorce and state DHS/DFACS). Outsiders, whether advocacy groups or appellate judges, love to shred young lives over academic arguments. The trial judge should always be given extreme deference, because the judge gets to see the family and makes decision on the whole picture, unlike meddlers who glom onto loose threads. The kids need support and co-operation, not more wedges into the family.
3.3.2008 9:44am
iowan (mail):
Things have devolved as they usually do when religion crops up. What athiests fear from those that believe in a higher power is a mystery to me. people believe in extra-terrestials, and they hold me no sway. All the arguments concerning the 1st ammendment are a creation of the courts, not the constitution. Those arguments that attempt to use some other activity in place of religion are appropriate. But I will try just one more example.

Two people that are each 1/8 native american, but not involved up to the point of concieving a child, then both sought to immerse the child in that culture ?so? would anyone question a judicial ruling that held the parent more intent with establishing the connection to the childs heritage as overriding?
3.3.2008 10:18am
David Chesler (mail) (www):

There are some kinds of learning that can't happen as an adult.




But surely religion isn't one of these.


I disagree, especially as to the social aspects. I know converts who can teach me extensively on halacha, and on the current customs of their Orthodox community, but they don't understand walking the streets of the old neighborhood with one's immigrant grandparents, or being introduced to a neighbor with numbers tattooed on his arm only to understand the significance later.
Conversely, I've lived among and with Christians for many years, and have seen many of their customs, but I don't completely feel the "joy of a child on Christmas morning."
3.4.2008 1:13am
dweeb:
"But in such cases, I don't think this sort of consensus is an adequate basis for courts to decide, because it involves too much subjective judgment about what are the "true" rules of certain religions, "

Your hypotheticals focus on Judaism, but the case inspiring this discussion involves something very different - Roman Catholicism. Whereas two Jews are likely to yield three opinions even on the question what is a Jew, Catholicism is defined by a highly organized international heirarchy, with written doctrines and laws of its own, and one of those laws is that its members may not be married by the Catholic Church without formal and binding agreement to raise any resulting children as Roman Catholics, as defined within the Church's doctrines. So, in the Kik case, as both parties were Catholic, there was a binding agreement, and a clear set of definitions regarding what constitutes compliance. With the possible exception of Mormons, there is no other religion where such things are spelled out quite as explicitly.

Of course, all this is irrelevant because of the "best interests of the child standard. That standard is what REAL libertarians should be incensed about, since it effectively makes children the property of the state.
3.4.2008 10:46pm