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"But for the Muslim Faith, the Children Would Have No Faith at All":

An interesting item from Linnell v. Linnell, 2008 WL 1913991 (Conn. Super. Apr. 15):

The children, by the parties' agreement prior to their birth, have been raised in the Muslim faith. The children, or at least Kelsey at this point, attend weekly religious instruction. They observe the Muslim holidays, as well as some of the Muslim rules (i.e., no consumption of pork). The Plaintiff testified that he agreed to raise the children in the Muslim faith, "so long as we were married." The Defendant testified that she "wouldn't compromise on religion." The children's faith should not be premised on the status of the parties' relationship. Further, the record would support that but for the Muslim faith, the children would have no faith at all. Neither party presented evidence that would suggest their original commitment to raise the children as Muslims should no longer be honored and respected.

The order isn't clear on whether the court ordered that the father continue to cooperate in raising the children Muslim. But the discussion in the opinion very strongly points to this, and I take it that divorcing parents don't lightly ignore the judge's sentiments as expressed in the opinion.

Two thoughts about this:

(1) The court says here that the plaintiff agreed to raise the children as Muslims "so long as we were married." Later, though, the court says there was a "commitment to raise the children as Muslims." Is that really accurate? Even if premarital contracts to raise children in a particular religion are enforceable (as I'm inclined to say they would be), it's not clear to me that there was such an agreement.

(2) More importantly, what's this about "Further, the record would support that but for the Muslim faith, the children would have no faith at all"? Can that really be a constitutionally permissible factor? Seems to me that under the First Amendment, the Court may not prefer one religious upbringing over another (at least in the absence of some showing of imminent likely harm to the children), a religious upbringing over an irreligious one, or an irreligious upbringing over a religious one. Whether it's better to be a Muslim or to have no faith at all is not a matter for secular courts, including secular family courts, to decide.

Richard Aubrey (mail):
Might's well start with the inevitable counterfactual:
Would the judge have said the same if the faith in question were Christian?

Would the agree/disagree lineup be the same if the faith in question were Christian?
5.6.2008 7:40pm
David Schwartz (mail):
The closest to a defense of this that I can come up with is the court finding that a change in the religious upbringing of the children as a result of a change in their parent's relationship is not in their best interests.

However, I don't think family courts should be adjudicating based on the best interests of the children anyway. It may be in the best interests of most children to be raised by Bill Gates, but I don't think that's a sensible ruling even if he's willing to take them.

Family courts should be adjudicating the rights of the parents.
5.6.2008 7:46pm
Eugene Volokh (www):
Richard Aubrey: As to "Would the judge have said the same if the faith in question were Christian?," why isn't the likely answer "yes"? It may well be that some judges are more likely to help Muslims than Christians, but I'd think they'd be in the minority.
5.6.2008 7:46pm
Eugene Volokh (www):
David Schwartz: That's a plausible argument, though I don't think it suffices to justify restricting parents' speech and religious practice, at least in the absence of some evidence that the children will indeed likely be harmed by this.

But the argument does nothing to explain the "but for the Muslim faith, the children would have no faith at all" argument.
5.6.2008 7:57pm
ithaqua (mail):
"But the argument does nothing to explain the "but for the Muslim faith, the children would have no faith at all" argument."

To be honest, I find this argument convincing; but then, if one believes that God (and God alone) is the source and the foundation of all human morality, it follows that any moral structure at all, no matter the religion, is better than raising children with no moral structure at all. So I understand where the judge is coming from here.

That being said, the judge's comment here is certainly discriminatory against atheists, and (if government policy) would be unConstitutional. But I think it's within a judge's powers to push this sort of agenda; activist liberal judges - especially in family court - have been discriminating against fathers, Christians and traditional families for decades. It's sort of amusing to see the shoe going on the other foot this time :)
5.6.2008 8:14pm
hattio1:
Professor Volokh,
As to the first issue, whether there really was an agreement, I sort of assumed that the father was arguing the agreement was only while we are married, and the mother thought it was an outright agreement. I have to say that, without knowing more, I find the mother more persuasive. I can't think of a person that religion could be so important for that they would extract a pre-marital commitment to raise the children in their faith, but not have that commitment include the possibility of divorce.
As to the question of "no faith at all," I think you're right. And I'm guessing because the judge considered "no faith at all" a terrible result, he didn't specifically decide the first question, whether the agreement was meant to be enforceable even in the event of a divorce.
5.6.2008 8:25pm
Roger Schlafly (www):
David is correct -- the root of the problem is in asking the judge to determine the best interest of the children. If the judge is given the power to make a decision about religion, and the law says that the interest of the children is paramount, then we get harmful and unconstitutional decisions like the one above.

The judge pretends that he is following the parties' agreement, but that is plainly false. They only agreed to raise the kids in the Muslim faith so long as they were married, and now they are not married anymore. The parents should each be free to teach the kids as they wish. If they don't agree, so be it. Plenty of happily married couples do not agree about everything either, and give their kids some mixed messages. It is not for the court to meddle in such matters.
5.6.2008 8:25pm
Oren:
David, Roger: what other possible standard could there be to decide on custody matters where both parents start out with equal 'rights' to raise their children? Flip a coin?
5.6.2008 8:27pm
Lior:
ithaqua: do you genuinely think that religious people are so lacking in moral fibre that they wouldn't realize by themselves that doing some things is a bad idea?

Perhaps they are. Do you think that stoning rape victims and homosexual men, burning witches at the stake, or enforcing the proper master/slave relations among the races are examples of moral behaviour? There are good sources showing that god thinks so.
5.6.2008 8:49pm
Roger Schlafly (www):
Oren: The court could both parents equal custody and authority over the kids, provided that both parents are fit. There are many family courts in the USA who do that today, and many divorced parents sharing 50-50 custody of their kids.

The slogan "best interest of the child" sounds noble, and hardly anyone questions it, but it is rarely followed. There is no consensus on what that best interest is.
[hattio1] I can't think of a person that religion could be so important for that they would extract a pre-marital commitment to raise the children in their faith, but not have that commitment include the possibility of divorce.
I don't think that is so farfetched. There are a lot of people who join their partners' churches as part of a marriage commitment, but who do not believe that the commitment extends beyond divorce. Someone might very well remarry in another faith, and raise the kids accordingly.
5.6.2008 8:52pm
Lior:
Regarding discrimination against atheists: Prof. Volokh can surely document this better, but I am sure that in the US, an extremely religious country, discrimination against religeous people is rare, and discrimination against the non-religious is common. The theme of rulings against atheist parents in custody repeats in the posts here. For another example, consider the RFRA, which gives preferential treatment to the religious over the merely principled.
5.6.2008 8:57pm
Oren:
Roger, in most cases, joint custody is in the "best interest" of the child.
5.6.2008 9:00pm
Crane (mail):

I can't think of a person that religion could be so important for that they would extract a pre-marital commitment to raise the children in their faith, but not have that commitment include the possibility of divorce.


Some people might simply assume that divorce wouldn't happen. Or think that making plans that include the possibility of divorce raises the likelihood that divorce will happen.

Kind of like how some religious teenagers won't acquire contraceptives in advance for a situation where they know they may end up having sex, because that would be admitting they knew in advance they might sin and didn't take precautions to avoid it.
5.6.2008 9:03pm
Richard Aubrey (mail):
EV.
The reason I don't think the answer would have been the same--or perhaps the likelihood is considerably lower--is that Muslims are an accredited victim group. Christians are not.
The hate crimes against Muslims issue is widely discussed, even though the vast majority are committed against Jews. Who have lost their accredited victim status more or less in conjunction with Israel's resistance to national suicide. And hate crimes against Jews and Christians get no ink, not in comparison to those few committed against Muslims.
Accredited victims get more official breaks. That's one reason to clamor for the status.


Any number of liberals would be reluctant to come out in favor of the miserable fundies (Christians)--that's okay--but saying something about Muslims is not okay. That's left to Islamophobes.
5.6.2008 9:10pm
Roger Schlafly (www):
Oren, you asked what other standard is possible, besides "best interest of the child" (BIOTC) and flipping a coin. The answer is that fit parents could have shared custody rights. That could be the standard, and in my opinion, it would be superior to BIOTC and coin flipping.

Yes, a judge could decide that joint custody is in the BIOTC. The BIOTC standard is completely subjective, so any outcome could be said to be in the BIOTC. The point here is that the BIOTC standard is neither necessary nor desirable, and it leads to bad outcomes such as some silly family court judge trying to decide whether teaching the Muslim faith is better than teaching no faith at all.
5.6.2008 9:24pm
Oren:
Roger, aren't you just kicking the analysis down a level to what constitutes a "fit" parent? In practice, the only things I can imagine your standard doing is:
(1) Creating a larger presumption towards joint custody.
(2) All arguments that were previous under BIOTCH (it's really a lot more funny with the H) would now be filed as "fitness" arguments.
5.6.2008 9:41pm
hattio1:
Roger Schlafly says;

The judge pretends that he is following the parties' agreement, but that is plainly false. They only agreed to raise the kids in the Muslim faith so long as they were married, and now they are not married anymore.


But, that isn't, or at least isn't clearly what the parties agreed to. It's what the FATHER claimed the parties agreed to. The mother did NOT say that's what they agreed to.

That's why I commented that the notion of someone extracting a pre-marital promise to raise the children in a certain religion because that religion is so important to them, but not considering the possibility of divorce, was fantastical to me. To which you replied;


There are a lot of people who join their partners' churches as part of a marriage commitment, but who do not believe that the commitment extends beyond divorce.


But that kind of turns the question on its head. If you were dedicated to your own religion, you wouldn't convert to marry. If you're going to convert just to marry, you arne't that dedicated (to your former religion). The question is, if you are so dedicated as to extract a pre-marital promise of raising the children in a religion, why would you ever agree to the "out" of divorce.

But, as to your speculation that it may never have been mentioned because the parties feared it might make divorce more likely, that I find believable...which raises the question of whether it was a valid agreement if mother assumed it meant even in divorce, and father believed it meant unless divorced.
5.6.2008 9:43pm
Dan Simon (mail) (www):
There's a more benign interpretation of the judge's statement that "but for the Muslim faith, the children would have no faith at all": it could be that the judge simply means to emphasize that the father has no particular alternative religious (or explicitly areligious) plan or agenda for his children, that the previously agreed-upon plan would interfere with, and therefore that the father lacks a good reason for abrogating his previous commitment to raise his children as Muslims. This interpretation is in fact more consistent with the surrounding sentences, which merely assert the absence of a strong argument for not continuing the previous arrangement--rather than, say, referring to the importance of religious upbringing, or the unsuitability of an areligious one.
5.6.2008 9:48pm
Oren:
Dan, that's awful charitable of you.
5.6.2008 9:49pm
Eugene Volokh (www):
Dan: First, I'm not sure that's the likeliest reading of the phrase. But second, why isn't "no faith at all" an alternative areligious plan?
5.6.2008 10:29pm
Anderson (mail):
Too bad the judge wasn't a Clapton fan: "If it wasn't for real bad faith, they wouldn't have no faith at all."

Mississippi routinely gives positive value to "faith" in custody decisions.

And I can't think of a bar-reinstatement case I've seen where the court didn't note church &Sunday-school attendance. Because of course, bad people never do those things.
5.6.2008 10:54pm
Roger Schlafly (www):
Oren, I am not proposing to redefine who is a fit parent. All states have laws saying that parents can lose their kids if they are guilty of physical child abuse, sexual abuse, or child neglect. The vast majority of parents in divorce court do not have these problems, and are fit parents under the law. I am not proposing that divorce courts try to determine which parent is more fit; if they are both fit, then they should split the custody rights.
[hattio1] If you're going to convert just to marry, you aren't that dedicated (to your former religion).
Maybe so, but millions of people do it, and it is not for me to judge how dedicated they are. I might very well agree to raise my kid in a faith that is not my favorite, as long as it was a joint family commitment. But I would not expect that agreement to survive divorce. Divorce changes a lot of priorities.
5.6.2008 11:02pm
Oren:
Roger, I misunderstood your notion of fitness (continuum versus binary).
5.6.2008 11:35pm
bobby b (mail):
Problem with drifting away from BIOTC is that, in a divorce, the parents may not be able to discuss and compromise and do what's best for the kid on their own - usually because the decision-driving factors have nothing to do with the kid. So, imperfect system, but absolutely necessary. Subjective? Sure - usually you need to make a parenting "expert" agree with your position in order to win.

But this religious parsing is a bit shaky. What if dad decides that there is no god but Jerome, and Binky is his prophet? Shall the state, through the judge, prefer allah to jerome? Can parents contract to assign religious truth ahead of time, and then hold the kid's salvation to that contract?

Jerome may not be pleased, rendering kid one of the UnElect, costing him post-embalming opportunities big-time. Clearly unconstitutional.
5.7.2008 12:43am
David Schwartz (mail):
To be honest, I find this argument convincing; but then, if one believes that God (and God alone) is the source and the foundation of all human morality, it follows that any moral structure at all, no matter the religion, is better than raising children with no moral structure at all. So I understand where the judge is coming from here.
This is wrong for so many reasons that it's hard to know where to start. First, it is clearly an error to equate religious faith with moral structure. No matter what you may believe, it's an undeniable fact that there are many people who have and follow personal moral codes without any acknowledged belief in any faith at all.

Further, if one believes that an actual existent God provided man with a moral code, it still seems absurd to argue that *any* religious belief (even the many that must be incorrect, since they are mutually incompatible) is in any sense equally good or even better than no religious belief at all. This argument would justify an empirical comparison of the moral validity of different religious belief systems, which is plainly outside the scope of what our courts are allowed to do.

If the court can consider that being a Muslim is better than having no faith, why can't it consider whether being a Muslim is better or worse than being a Christian by precisely the same criteria?

It is amazing to me that you equate atheism with "no moral structure at all".
5.7.2008 1:23am
David Schwartz (mail):
David, Roger: what other possible standard could there be to decide on custody matters where both parents start out with equal 'rights' to raise their children? Flip a coin?
As I said, adjudicate the conflicting rights of the parents to raise their children as they wish. If mom wants X and dad wants Y, the question should not be "is X or Y in the best interests of the child" but "is mom within her rights in demanding X for her child and is dad within his rights in demanding Y".

The instant case is as good as any other. One parent presumably wants to raise the child as a Moslem and the other parent presumably wants to raise the child without any faith at all. The problem seems to be how these conflicting wishes should weigh, and I'm saying simply don't weigh them.

When you're trying to figure out who gets the car, you don't look at who plans to maintain it better. The only time to weigh the best interests of the child is when you're talking about abuse or neglect.

In fact, what the court did here is effectively flip a coin as to whose parental right will get honored and whose will just not be. The fact that it called it "the best interest of the child" doesn't change the fact that one parent lost their right to raise their child as they wished and will not be compensated for that loss by the court in any way.

For example, the court could have asked the parents to place a monetary value on their decision, and had the one placing the higher value pay the other one the lower value and get their wish.

As I've said, the best interests of the child should be completely irrelevant. The adjucation should be over what best protects the rights of the parents and the rights of the children.
5.7.2008 1:31am
Dan Simon (mail) (www):
Eugene, the phrase, "no faith at all" could refer to an "alternative areligious plan"--or it could simply denote the absence of such a plan. I don't know for certain which meaning the judge in this case intended, but the latter interpretation strikes me as at least as consistent with the context as the former one.

I don't begrudge you your general point, but seems only fair to acknowledge that it may not apply to this specific judge's words.
5.7.2008 1:35am
Eugene Volokh (www):
Dan: If under the father's system, "the children would have no faith at all," that itself refers to a belief system (no faith). It may be deeply planned on the father's part, or it may just be a casual plan coming out of the fact that the father thinks religion isn't important, but it's a belief system (no faith) that secular courts shouldn't treat as inferior to a rival belief system (faith).
5.7.2008 4:00am
Roger Schlafly (www):
Even if the dad really made a commitment to Islam that was intended to survive a divorce, and even if he lacked a good reason for backing away from that commitment, it is none of anyone's business. Maybe his beliefs changed. Maybe he doesn't think that the Muslim upbringing worked very well. Maybe he is not good at articulating his beliefs. Maybe other things became more important. As David says, the court should not be weighing such matters. It is foolish. It is unconstitutional. It is irrelevant. It is unnecessary.

Nobody knows whether rearing a kid with Muslim faith is any better or worse than no faith. I have my opinion, but I cannot prove it. Any judge who tries to make such a decision is just revealing his own prejudices. He is certainly not acting in the best interest of the childern (BIOTC). The kids would almost certainly be better off if the parents use their own judgment, without some silly judge trying to interfere.
5.7.2008 4:01am
Oren:
The kids would almost certainly be better off if the parents use their own judgment, without some silly judge trying to interfere.
Of course the child would be better off if the parents could come to a mutually acceptable solution (and abide by its terms scrupulously). The only cases that end up in court are the ones in which the parents are incapable of agreement.
5.7.2008 4:33am
David Schwartz (mail):
Of course the child would be better off if the parents could come to a mutually acceptable solution (and abide by its terms scrupulously). The only cases that end up in court are the ones in which the parents are incapable of agreement.
Right, but the judge is doing precisely the wrong thing here. If two people jointly owned a car and disagreed over who should have the car on weekends, a judge would not try to figure out what's best for the car. He'd try to figure out what best reflects the agreement between the two people and protects their property rights in the car.

The reason the judge runs amuck here is because he has to consider which plan is objectively better in a case where there is no "objectively better". If his criteria were better, his reasoning process might well be better as well.

Yeah, I'm very big on parental rights. As I've argued elsewhere, I believe that one of the most fundamental rights is the right to raise your children as you wish, absent an individualized finding of abuse or neglect. This right is the right to decide what you think is in the best interests of your child and not to have someone else do so for you.

It is clear here that the judge is not trying to enforce the party's agreement. He is deciding that their agreement was inappropriate.

"The children's faith should not be premised on the status of the parties' relationship. Further, the record would support that but for the Muslim faith, the children would have no faith at all." This is inconsistent with any rational position on parental rights and the role of secular courts that I can imagine.

Who is the judge to say what a child's faith should be premised on? Is premising it on a deity with six arms somehow more rational than premising it on the status of the parties' relationship?
5.7.2008 8:21am
shawn-non-anonymous:

But that kind of turns the question on its head. If you were dedicated to your own religion, you wouldn't convert to marry. If you're going to convert just to marry, you arne't that dedicated (to your former religion). The question is, if you are so dedicated as to extract a pre-marital promise of raising the children in a religion, why would you ever agree to the "out" of divorce.


My mother was a devout Catholic. To marry her in her church, my father was required to convert. So he did. When they divorced, my father resumed being openly atheist. The religion thing wasn't a big deal to him either way. They agreed to raise us as Catholic because it was important to my mother. I imagine if going through the motions of being Catholic didn't bother my dad, neither would letting his children be raised in the faith.

A former boss converted to the Mormon church for pretty much the same reason. He liked the importance it gave to the family structure and supported his family's faith. They divorced after the kids were in college. Last I knew he was dating a woman in the Jewish faith.

At least among Christians, there may be a view that most versions of Christianity are interchangeable. So if it matters so much to one person, the other may be willing to convert. When that one person doesn't matter any more, they may revert. It may also hinge on how much a person sees church as a social obligation versus an important spiritual activity.

Knowing how nasty divorces can be, I would wonder if the complaint wasn't so much that he didn't want his children to be muslim as much as the ex-wife was looking for reasons to keep her children out of his home? Perhaps the father had bacon in his fridge or ate bacon in front of his children and the mother is now attempting to use this to get full custody? Since I do not know the details here, I can only guess. It seems to me "raising our children as muslims" may be code for requiring the father to at least fake being muslim in front of his children. It may also be that his dissatisfaction with the religion was part of why they divorced.
5.7.2008 11:01am
CJColucci:
Where are the Burkean conservatives on this? Whatever the judge's unfortunate phrasing, the fact is that the kids have been raised Muslim. Whatever the father's alternative plans or non-plans might have been, doing something other than continuing to raise them Muslim is a rather drastic, sudden, and potentially disruptive change that requires some sort of justification. To a Burkean, tradition, practice, and prejudice are not to be despised or lightly cast aside. In less high-falutin' language, continue the status quo unless there's a good reason not to.
5.7.2008 11:41am
Bad (mail) (www):
"Whatever the father's alternative plans or non-plans might have been, doing something other than continuing to raise them Muslim is a rather drastic, sudden, and potentially disruptive change that requires some sort of justification."

Thank you: I've been trying to make the same point about adolescence for years now. It should be outlawed.
5.7.2008 12:00pm
SenatorX (mail):
Dan: First, I'm not sure that's the likeliest reading of the phrase. But second, why isn't "no faith at all" an alternative areligious plan?

Because it's ok to discriminate against atheists.
5.7.2008 12:16pm
Dan Simon (mail) (www):
If under the father's system, "the children would have no faith at all," that itself refers to a belief system (no faith).

Again, that may be the judge's intended meaning--or he may simply mean that the father doesn't appear to have any particular system in mind, whether faith-based or absence-of-faith-based. He may, in effect, be saying--and I think the context supports this interpretation--"look, you really don't seem to care one way or another about the children's religion, so the mild presumption in favor of continuing your previously-agreed-upon arrangement regarding the children's faith should hold sway."
5.7.2008 12:25pm
Oren:
Right, but the judge is doing precisely the wrong thing here. If two people jointly owned a car and disagreed over who should have the car on weekends, a judge would not try to figure out what's best for the car. He'd try to figure out what best reflects the agreement between the two people and protects their property rights in the car.
I don't think this is the right mode of analysis. Our disagreement is probably intractable, since I believe parental rights exist solely for the purpose of protecting children's right to guardianship in their interest. It's not that I think they don't exist or aren't important (they do and very) but I don't think that a parent's right to raise their child exists for its own sake, independent of the child's interests (the way a person's interest in a car does).

At any rate, thanks for the illuminating posts.
5.7.2008 2:23pm
hattio1:
Roger Schlafly says;

Maybe so, but millions of people do it [convert in order to marry], and it is not for me to judge how dedicated they are. I might very well agree to raise my kid in a faith that is not my favorite, as long as it was a joint family commitment. But I would not expect that agreement to survive divorce. Divorce changes a lot of priorities.


Right. But once again, you are focusing on the one who changes their faith (in this case the father) and whether that person would be likely to make an agreement that ended in divorce. I was focused on the one who refuses to change their faith, insists that their partner converts, and insists that the children be raised in their faith (in this case, the mother) and whether THAT person would be likely to make an agreement that ended in divorce. The father's dedication to the Muslim faith is rather outside the question of what the agreement said.
5.7.2008 2:23pm
Gary McGath (www):
The idea that courts should have a say in what beliefs parents should teach is a bizarre, though well-established, one. If the parents disagree, why not let the parents present their respective beliefs to the children and let them decide?

Imagine if the court ordered parents in a divorce to raise their kids as Democrats or Republicans, and argued that in the absence of that the kids might have no party at all. How would that be the court's business?
5.7.2008 3:21pm
Roger Schlafly (www):
[Oren] The only cases that end up in court are the ones in which the parents are incapable of agreement.
This is false. Cases end up in family court simply because one parent thinks that he or she has something to gain by asking a judge to intervene.

To follow David's analogy, suppose two people jointly owned a car, and some judge was willing to intervene when one of them complained and the judge wanted to enforce some silly opinion about what is good for the car. Then the two owners, who might otherwise be in agreement, might find themselves in court while one owner uses the judge's prejudices to his advantage.

This scenario may sound unlikely, but it happens every day in family court. It is unusual for a judge to take such an obviously-unconstitutional position on a choice of religion, but family court judges frequently act on arguments having to do with issues that are normally within parental discretion.
5.7.2008 3:24pm
Roger Schlafly (www):
Hattio1, it is quite possible that the wife hoped that her husband would continue with the Moslem faith, even after divorce, and rear the kids accordingly. But how does this relate to our secular marriage law?

To be married in the Catholic Church, you have to convert to Catholicism, repudiate divorce, and promise to rear the kids in the Catholic faith. Many Catholics would argue that the kids should be reared as Catholics even after divorce. So I agree that there are a lot of religious folks who strongly believe in a commitment to keep the kids in the faith.

But even Catholics do not believe in trying to use our secular marriage law to enforce their religious wishes. You make your religious commitments to your God and your family. The family court judge has no business trying to enforce such commitments.
5.7.2008 3:45pm
hattio1:
Roger Schlafly,
Maybe I should have given this caveat before. I was focusing on the narrow question of what the parties agreement was. Specifically whether the agreement was to raise the children in the Muslim faith, or whether it was to raise the children in the Muslim faith unless there was a divorce. I believe the mother's dedication to the faith, the fact that she insisted the children be raised Muslim is fairly strong evidence on that narrow fact. Personally, I don't think the courts should be getting into questions of what faith the child should be raised in even if there was an agreement, and even if that agreement was beyond divorce, but I know there are courts that disagree with me every day.

Even Catholics????
5.7.2008 4:02pm
Clayton E. Cramer (mail) (www):

Seems to me that under the First Amendment, the Court may not prefer one religious upbringing over another (at least in the absence of some showing of imminent likely harm to the children), a religious upbringing over an irreligious one, or an irreligious upbringing over a religious one.
I would agree that the First Amendment doesn't allow one religious upbringing over another, but the notion that the First Amendment gives no preference to religion over irreligion is an ACLU concept--not one based on original intent. I won't claim that the historical record is terribly strong on this, but when you examine the clear preference for religion that appears in the Northwest Ordinance, use of federal government buildings for church services in early Washington, and the various state constitutions that provided clear preference for Christianity (sometimes just Protestantism), the notion that irreligion enjoyed the same status as religion seems hard to justify.
5.7.2008 4:05pm
David Schwartz (mail):
I don't think this is the right mode of analysis. Our disagreement is probably intractable, since I believe parental rights exist solely for the purpose of protecting children's right to guardianship in their interest. It's not that I think they don't exist or aren't important (they do and very) but I don't think that a parent's right to raise their child exists for its own sake, independent of the child's interests (the way a person's interest in a car does).
So if some stranger is better off than both parents and undeniably better able and willing to raise the kids, why shouldn't he get them? Other than a parent's right to raise their child, what else could possibly entitle a parent to raise their child?

I don't see how you can say parents are entitled to raise their children (rather than random strangers who can prove they'll do a better job) and still say there is no parental right to raise your children.
5.7.2008 5:03pm
Cold Warrior:
A critical factor here is the age of the children. From the opinion, I see that we're dealing with a 9 year old girl and a 6 year old boy.

As for the girl:


Kelsey is 9 years old and in the fourth grade at the Community School in Prospect, Connecticut. She is in good health. She shares a close bond with both her parents. She has transitioned well to the shared parenting plan of November 2006, but at times is confused as to whether a parent is going to pick her up from school or whether she should be taking the bus. Kelsey has not articulated a preference as to either parent relative to custody.


And the boy:


Colby is 6 years old and in first grade at the Algonquin School in Prospect, Connecticut. He is in good health. Colby also shares a close bond with both parents. He, too, appears to have transitioned easily to the shared parenting plan implemented in November 2006. Although Colby also participates in seasonal sports, he is not as heavily scheduled as Kelsey. Colby has not articulated a preference as to either parent relative to custody.


The mother is described as a "first generation Albanian Muslim" The father is not Albanian and is described as "Catholic," although I must assume that he is a non-practicing Catholic.

The judge's orders show a bit of confusion over the issue, however:


The Defendant shall have the minor children for the celebrations of Eid al-Fitr and Eid al-Adha upon at least one month's notice to the Plaintiff as to the date and time, as follows:


Eid al-Fitr from one hour before sundown, overnight until 6:00 p.m.


Eid al-Adha from one hour before sundown, overnight for three nights until 6:00 p.m.


The Defendant shall be responsible for transporting the children to and from the Plaintiff's home, as indicated, in connection with the Muslim holidays.


5) The Plaintiff shall have the minor children every Easter Sunday, from 9:00 a.m. to 6:00 p.m. The Plaintiff shall be responsible for transporting the children to and from the Defendant's home in connection with the Easter holiday.


So I'll have to assume that the father at least honors Easter as a quasi-religious holiday. (Or maybe he just likes to take the kids on Easter egg hunts.)

All told, I'll have to conclude that the judge's reference to the "Muslim religion vs. no religion at all" really is harmless in context. I see no stated general preference here for a Muslim upbringing rather than a secular upbringing. Rather, it is important to the mother that her children attend Muslim services, and it is apparently rather unimportant to the father whether they attend religious services at all.

So in this case I'm not bothered. In general, I think that when the children are older (12? 15? I can't say precisely), the change from one religious tradition to another (or to no religious tradition at all) is an important factor. Of course, maybe we should just ask a child of a certain age whether or not it is important to him or her before deciding the issue. Certainly a six year old has no self-directed religious beliefs or commitments, and only a rare 9 year old would have such beliefs or commitments.

Again, I ascribe this case to a poor choice of words by the judge, and I think it is truly harmless error. The larger point, however, is interesting, and I do agree it become a problem of constitutional dimension when a judge favors the religious over the nonreligious, just as it is a problem when a judge favors one religion over another in making custody decisions.
5.7.2008 5:03pm
David Schwartz (mail):
I would agree that the First Amendment doesn't allow one religious upbringing over another, but the notion that the First Amendment gives no preference to religion over irreligion is an ACLU concept--not one based on original intent.
This would require the government to determine what is and is not a bona fide religion. If there was anything the first amendment was supposed to prevent, it would have to be some set of State-approved religious beliefs.
5.7.2008 5:07pm
David Schwartz (mail):
So if the father was previously an KKK member and raised the children that way with the mother's weak consent, and the mother plans to continue to raise them that way while the father has decided to change to a religious upbringing that rejects racism, this should weigh in favor of the father because any change is bad? Or is the government now going to decide which religious beliefs are so bad and which so good that a change is from a bad one to one that is sufficiently better can outweigh the harm of changing?

If you want to argue there's evidence that such changes harm children -- what if there was evidence that being raised in a particular religion harmed children? Would that make a change away from those religions good?
5.7.2008 5:13pm
Clayton E. Cramer (mail) (www):

This would require the government to determine what is and is not a bona fide religion. If there was anything the first amendment was supposed to prevent, it would have to be some set of State-approved religious beliefs.
No, it would only require the government to take a position that religion is preferable to irreligion. We might not like that--I think I would rather live in a community dominated by atheists than by Islamofascists--but that does seem to be the dominant (perhaps only important) view of the Framers.
5.7.2008 5:20pm
John M. Perkins (mail):
"Defendant shall have [custody] New Year's Day, July 4, Thanksgiving and Christmas."

The defendant is of Muslim faith.
The plaintiff is Catholic.
5.7.2008 5:28pm
Cold Warrior:

So if the father was previously an KKK member and raised the children that way with the mother's weak consent, and the mother plans to continue to raise them that way while the father has decided to change to a religious upbringing that rejects racism, this should weigh in favor of the father because any change is bad?


It's not that change is bad; it's that stability is considered a goal. Not all stability is good; sometimes we want to take a child out of particular situation.

My point is this: it is not inappropriate to consider religous upbringing and religious traditions, but it is inappropriate to favor one religion over another, or over no religion at all. An intelligent older child is raised as an atheist and has developed a serious and well-articulated commitment to an atheist view of the world. The law may recognize that it would be disruptive to that child to hand over custody to the parent who recently had a born-again experience and who wants to live according to a very strict view of the Bible. Likewise, an intelligent older child is raised in a fundamentalist Baptist tradition and (through expressions of belief and through behavior) shows a deep commitment to those principles; the law may recognize that it would be disruptive to that child to hand over custody to a parent who has recently had a reverse born-again experience and who now believes that religion is nonsense on stilts. Finally, an intelligent older child has been raised in the orthodox Jewish tradition and exhibits a strong commitment to both Jewish doctrine and tradition, but one parent has recently had a religous converstion to Christianity and wants (demands) to raise the child as a Christian. The law may recognize the value of stability and tradition and belief.

Such consideration of religious (or nonreligious) perspectives offends neither me personally nor the 1st Amendment.

Compare that to the offensive use of religion: A young child (let's say 4 years old) has had only the most superficial exposure to religion. One parent wants to raise the child as a Catholic; the other wants to raise him without religion. And the court expressly bases its custody decision in part on the "either he'll be raised a Catholic or he'll have no religion at all."

Reading this opinion, it is clear that that is not what happened in this case. In fact, it's clear that the judge thought the Muslim mother was rather unstable and certainly untrustworthy. So again, it's harmless error, and just a poor choice of words. The 1st Amendment is not even bruised.
5.7.2008 5:30pm
Cold Warrior:

"Defendant shall have [custody] New Year's Day, July 4, Thanksgiving and Christmas."

The defendant is of Muslim faith.
The plaintiff is Catholic.


And the plaintiff (Catholic, or nonreligious, or both) is expressly given Christmas Eve as well as Easter.

If you read the case, it is a clear example of why I never, ever, ever would practice family law: 42 year old people acting like little children, with little children begging them to behave themselves. The judge did (as they often must do) the best she could under the circumstances.
5.7.2008 5:33pm
Oren:
So if some stranger is better off than both parents and undeniably better able and willing to raise the kids, why shouldn't he get them? Other than a parent's right to raise their child, what else could possibly entitle a parent to raise their child?
I think it's in the BIOTCH to be raised by one's biological parents.

Even absent that, I think that the state must meet a fairly high burden in proving that taking kids away from their parents is in the BIOTCH (much more so than is currently the case).
5.7.2008 5:58pm
David Schwartz (mail):
I think it's in the BIOTCH to be raised by one's biological parents.
Are you arguing that this is actually true? Or are you saying this is a convenient fiction to make BIOTCH work?

Because if your argument is that it is actually true and that BIOTCH is primary, then we should objectively measure exactly how much this benefits children and weigh it against other benefits a complete stranger might provide.

Suppose a fairly detailed study showed that in a particular case, being raise by the biological parents had about as much expected benefit as an additional $30,000 in yearly family income. Should a loving grandparent who makes the requisite additional $30,000 get custody?

Heck, what if the biological parents are okay but the grandparents are just better parents for a variety of reasons. They're better educated, more stable economically, and so on. Suppose it was really hard to argue with a straight face that the children would be better off with their parents. Would you say the right thing is to award custody to the grandparents since it's in the BIOTCH?

Now, you can argue that this is a convenient legal fiction to make BIOTCH "work", but then the problem becomes on of who gets to decide what constitutes "working"? Christians might find a presumption that being raised Christian is in the BIOTCH to "work" for the outcomes they want.
5.7.2008 6:12pm
SenatorX (mail):
So if some stranger is better off than both parents and undeniably better able and willing to raise the kids, why shouldn't he get them? Other than a parent's right to raise their child, what else could possibly entitle a parent to raise their child?

I agree completely with David. I always think of Brave New World with the state raising the children. Getting away from a parents right to raise their children opens up a whole lot of trouble. My personal belief is that it's sad children are raised into religious indoctrination but in no way would I want that right of the parents taken away.
5.7.2008 6:52pm
Waldensian (mail):

Whatever the father's alternative plans or non-plans might have been, doing something other than continuing to raise them Muslim is a rather drastic, sudden, and potentially disruptive change that requires some sort of justification.

Well, I can think of one justification: God is almost certainly imaginary.
5.7.2008 10:45pm