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More on Discrimination Against the Irreligious (and Less Religious) in Child Custody Cases:

I've blogged about this before, but I thought I'd note it again, because of two interesting cases from the past year that I just ran across. Here's an excerpt from Buck v. Buck, 4 Pa. D. & C. 5th 238 (Pa. Com. Pl. 2008):

D. Spiritual Well-Being

Father is religious and takes the child to church. Father currently places a high-level emphasis on religion. The child appears to be enjoying her religious activities.

Mother did not testify as to any particular religious/spiritual activities in which she seeks to involve the child, or any religious/spiritual activities which she seeks to instill in the child.

The child's spiritual well-being is better served by being in Father's custody.

Note that nothing in the opinion suggested that the court was considering the child's desire to keep going to church, or any possible harm that might come from a change in the child's routine as a result of her not going to church any more. The court elsewhere discussed continuity and child preference concerns, but not as to the child's "religious/spiritual activities," which leads me to think that continuity and child preference weren't the court's interest here. Rather, the court is taking the view that a parent's "high-level emphasis on religion," especially through "tak[ing] the child to church," is a factor in favor of awarding custody, and the other parent's absence of "seek[ing] to instill" "religious/spiritual activities" "in the child" is a factor against awarding custody.

Now, from Jackson v. Jackson (Ariz. Ct. App. Nov. 29, 2007):

Mother argues that the family court erred in not counting in her favor the fact that Jeremy will receive more religious instruction if he is placed with her. We disagree. "'[C]onstitutionally, American courts are forbidden from interfering with religious freedoms or [from taking] steps preferring one religion over another.'" Funk v. Ossman, 150 Ariz. 578, 581, 724 P.2d 1247, 1250 (App. 1986) (quoting Munoz v. Munoz, 489 P.2d 1133, 1135 (Wash. 1971)). Judges are not appropriate arbiters of whether it is in a child's best interest to be raised Muslim or Christian or to be raised more religious or less religious or not religious at all. See Smith v. Smith, 90 Ariz. 190, 193-94, 367 P.2d 230, 233 (1961) (First and Fourteenth Amendments to U.S. Constitution preclude changing the custody of a child based on a parent's religion); see also Everson v. Bd. of Educ., 330 U.S. 1, 15-16 (1947) ("No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance.") Both the United States and Arizona constitutions require that in making a decision on custody, the judge does not put a thumb on the scale on the side of the parent whose religion or religious practices the judge or the majority favors.

The Jackson approach strikes me as much more consistent with modern First Amendment doctrine. It also strikes me as much more consistent with what seem to me to be basic principles of religious equality, which should include the equality of those who participate in organized religion, those whose religious and spiritual life does not involve formal religious or spiritual education, and those who don't believe in religion at all.

Cornellian (mail):
The child appears to be enjoying her religious activities.

Pretty much making the kid unique, if you don't count Ned Flanders' kids.
9.3.2008 10:03pm
Oren:

The child's spiritual well-being is better served by being in Father's custody.

Doesn't the depend highly on whether or not Father's religion is the one true religion? If his is an apostate church, the child's spiritual well-being is better served not being involved in angering the Lord by worshiping him incorrectly.
9.3.2008 10:04pm
Waldensian (mail):
Oren has an early and strong lead in the thread-winner race.

God, how I hate religion.
9.3.2008 10:27pm
unhyphenatedconservative (mail):
Cue Roger Schafly in 3...2...1....
9.3.2008 11:26pm
Mike& (mail):
Oren makes a great point. It could be that Father is going to have his daughter sent to Hell. We need more facts on the One True Faith issue.
9.3.2008 11:37pm
one of many:
Sorry Oren, the court decided based upon the child's spiritual well-being not upon the wellness of the child's spiritual being. I don't believe a family court has jurisdiction over spiritual beings (I may be wrong on this) and is restricted by jurisdiction to matters affecting the incorporated soul (needs to be clarified, some hold that next life for soul in also corporal). One only has to consider the case of Job to see that the wellness of one's spiritual being is not the same as one's spiritual well-being.
9.4.2008 12:46am
JAYCEE (mail):
I wouldn't read this deep into this. In a divorce it is more likely than not one party is pretty much an A**hole and the other party less so (otherwise they wouldn't be in divorce court with children). The court has to hang its hat somewhere and someones not going to like it.
9.4.2008 1:34am
Bill Poser (mail) (www):
I think that the court can avoid Establishment Clause problems by the use of probability theory. There are N religions to choose from, at most one of which is the One True Religion. The probability of the father's religion being the One True Religion is therefore strictly less than 1/N, where even by a conservative estimate N > 25. The probability of the father's religion being the One True Religion being less than 5%, and the consequences of chosing the wrong religion being so great, clearly custody should be awarded to the non-religious parent.
9.4.2008 2:57am
John M. Perkins (mail):
Once again, a court has made the mistake of adding religion when piling on reasons for the decision.

The following was enough. Why touch religion?

"As stated above, there has been conflict at Mother's household that negatively impacts the child's well-being. Mother and her boyfriend have had frequent disagreements that included yelling. At trial, Mother acknowledged that she yells a great deal. Additionally, there have been physical conflicts in Mother's household between Mother and son, Mother and boyfriend, son and sister: objects have been thrown; physical confrontations have taken place. The children have been fearful. This household violence is a strong negative for the child."
9.4.2008 12:51pm