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Routine Discrimination Against the Less Religious in Michigan Courts:

I've blogged about this before, but what's striking is precisely how routine such cases are in Michigan. Here's an excerpt from the latest, Kik v. Kik, 2008 WL 376404 (Mich. App. Feb. 12):

As to raising Emma [age 2.5 at the time], the trial court found that this sub-factor favored plaintiff based on the testimony that plaintiff had a stronger religious background and was more actively involved in bringing the minor child to church than was defendant. Because this finding was based on the record evidence, no error occurred with regard to this factor.

Let's set aside the broader First Amendment questions on when a court may treat a parent worse because that parent's speech (religious or otherwise) to the child seems likely to harm the child. Here, there was no finding remotely like this.

Rather, the court was simply interpreting Michigan's best-interests statute — which requires the consideration of "[t]he capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any" — as giving a preference to the more religiously active parent.

This seems to be an even clearer case of religious coercion than in Lee v. Weisman, the graduation prayer case: Under the Michigan rule, which Michigan courts often apply (see the Appendix to this article), Michigan parents know that, to maximize their chances of keeping custody of their children, they need to go to church more often. A solid violation of the Establishment Clause, I think, plus of the Michigan Constitution's religious freedom provision:

Every person shall be at liberty to worship God according to the dictates of his own conscience. No person shall be compelled to attend ... any place of religious worship .... The civil and political rights, privileges and capacities of no person shall be diminished or enlarged on account of his religious belief.
Words to live by — if only the Michigan courts lived by them in their child custody decisions.

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Religious Upbringing and Changes in Attitudes:

I just got the trial court opinion in Kik v. Kik, the latest Michigan appellate case that counted a parent's greater religious observance as a factor in favor of the parent's custody claim. Here's what the trial judge wrote about this:

As far as religion, the testimony indicates that the child was baptized at Saint Paul's in Big Rapids which is where the parties were married. The Plaintiff testified that religion was an important factor to both parties when they were first married and both felt strongly about raising [their daughter] in the church. The Plaintiff also admitted that after they were married it was a struggle for them to attend church, however, since the separation the Plaintiff has been more consistent with attending church and taking [the daughter] with him on a regular basis. The Plaintiff attends church every week at Saint Mary's of the Woods Catholic Church in Kalkaska and takes [the daughter] with him to church on a regular basis. The Plaintiff's testimony and actions appear to be sincere in raising [the daughter] in the church.

The Defendant testifies that she also attends church at Saint Paul's in Big Rapids which is where [the daughter] was baptized. The Defendant testified that she was more regular in attending church during the summer, however, has not been regular in attendance during the winter months. The Defendant testified that she has allowed [the daughter] to make the decision as to whether or not she attends church. However, the court agrees with the Plaintiff that this is not a decision which should be left up to a young child [who was 3½ at the time of the decision]. The Plaintiff testified that the Defendant has admitted to him that she does not take [daughter] to church on a regular basis and does not feel that it will make a difference.

Although the parties struggled to attend church while they were married, the Plaintiff appears to be more consistent in attending church with [the daughter] on a regular basis now that the parties have separated. The court must remain neutral with respect to each of the parties['] religious beliefs, however, both parties agreed that religion was an important factor when they were first married and when they started their family. Since the parties have separated, the Plaintiff is the parent who has actively participated in [the daughter]'s religious upbringing while the Defendant has allowed [the daughter] to make the decision on whether she attends church....

As to raising [the daughter] in her religion, the Court concludes that this factor favors the Plaintiff.

Now I realize that the judge said she was remaining neutral with respect to the parties' religious beliefs — but I think that this decision was not neutral, and was based on favoritism (which, I think, violates the Establishment Clause) for the more religious parent.

To begin with, note that this is not a case where continuity of religious upbringing is valued simply because it prevents disruption for the child. I can imagine why a child who is closely involved with her church would be hurt by being separated from church activities and from her church friends. But here there's no evidence to controvert the mother's claim that the daughter prefers not to go to church often, and no evidence to suggest that this reduced churchgoing is causing disruption in the daughter's life.

Also, this is not a case where the court is enforcing a contract providing for the religious upbringing of the child. True, the parents apparently "agreed that religion was an important factor ... when they started their family." But there's no evidence that the parents entered into what they reasonably saw as a binding contract. Not every understanding or plan is seen by the parties as a binding contract, and that's good; we can value lots of things and plan lots of things without surrendering our rights to change our minds.

And this right to change one's mind is especially important for religion, a subject on which people do often change their minds. One's religiosity, and one's perception of the importance of religiosity to one's children, may well change. The divorce itself may shake one's faith in God (especially if one is Catholic). Seeing one's child grow may deepen one's religious beliefs or weaken them. Seeing how one's child behaves may change one's view about whether the child is getting something valuable out of organized religion. The pressures of everyday life may change one's perception of how much of one's scarce parenting time and energy one should devote to organized religion. And of course sometimes people may have religious epiphanies. One should not lightly infer a promise to maintain one's religious practices (or the nature of the upbringing one plans to give one's child) from a past general agreement that religion is an important factor.

What's more, note that the judge wasn't purporting here to enforce a contract between the parties. She was just deciding what was in the child's best interests. Even if explicit contracts to raise a child in a particular religious manner should be upheld (and I'm inclined to say they can be, if this can be done with a minimum of entanglement with theological questions, but that's a matter for another day), there's no reason to think any such enforcement was taking place here.

So what we have here is a judgment that, once two parents generally agree to raise a child religiously, it's in the child's best interests to continue that upbringing — even when one parent changes her views about religion, or about the importance of organized religious observance, and even when there's no particularized evidence that this child is seeing the change as disruptive. On other matters, I take it, a court wouldn't take the same view: One wouldn't hold it against a parent that she acceded to the 3½-year-old's request to stop taking ballet lessons. But as to religious practice, the one area where governmental coercion poses the greatest constitutional problems, the judge was holding a parent's change in attitude and behavior against that parent.

Once a child is being exposed to organized religion, the reasoning seems to go, it's in the child's best interests to continue this exposure, even when the child isn't interested, when stopping the exposure isn't causing disruption, when one parent thinks the exposure is unnecessary, and when the other parent would be free to expose the child himself during his time with the child. I can't see how that is consistent with the Establishment Clause principles that the government generally may not prefer religious behavior over secular behavior, and that the government may not coerce people into engaging in religious practice.

Perhaps the decision wasn't this particular trial judge's fault, given what seems to be the Michigan state legal principles that push in this direction. But it seems to me unconstitutional nonetheless.

UPDATE: Several commenters suggest that the mother was properly faulted for not living up to her supposed values, because she has supposedly been saying one thing (church is very important) and doing another (not taking the child to church regularly). I'm not sure that this would be a sensible position for the court to take, but before we can evaluate that, wouldn't we need to see some specific evidence that the mother is being inconsistent?

I see no such evidence in the trial court opinion. There's evidence that mother once thought church attendance was important. But now it seems that she "does not feel that it will make a difference" to the child, and in fact doesn't attend church regularly. Sounds like someone who has changed her views about organized religion, and no longer finds church attendance to be as important as she once did. That's hardly evidence of inconsistency, hypocrisy, or failure to live up to claimed values.

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Michigan Court Prefers Agnostic Parent Over a Parent Who Has Been Finding Religion:

Here's an excerpt from a recent Michigan court decision:

The Plaintiff [father] testified that agnosticism and scientific rationalism were important factors to both parties when they were first married and both felt strongly about not raising their daughter in organized religion. The Plaintiff remains consistent in not attending any religious services with the daughter. The Plaintiff's testimony and actions appear to be sincere in raising the daughter outside any organized religion.

The Defendant [mother] testified that she was more firm in avoiding religious organizations during the summer, but during the winter months she found herself drawn to church, both because of the friendly environment and community feeling it provides, and because her earlier opposition to religion has been softening. The Defendant testified that she has allowed the daughter to make the decision as to whether or not she attends church. However, the court agrees with the Plaintiff that this is not a decision which should be left up to a young child who was 3½ at the time of the decision. The Plaintiff testified that the Defendant has admitted to him that she takes daughter to church occasionally and does not feel that it will make a difference.

The Plaintiff appears to be more consistent in avoiding organized religion with the daughter on a regular basis now that the parties have separated. The court must remain neutral with respect to each of the parties' religious beliefs, however, both parties agreed that agnosticism and scientific rationalism was an important factor when they were first married and when they started their family. Since the parties have separated, the Plaintiff is the parent who has actively participated in the daughter's agnostic, rationalistic upbringing while the Defendant has allowed the daughter to make the decision on whether she attends church....

As to raising the daughter in her absence of religion, the Court concludes that this factor favors the Plaintiff.

Of course, this isn't a real decision -- it's a recasting of the decision I blogged about yesterday, in which the court preferred the more religiously observant parent over a parent who has moved towards having less interest in exposing her daughter to organized religion. But I think it's a useful way of looking at the problem.

It seems to me that this hypothetical decision would be a First Amendment violation. Remember that the judge wouldn't be finding any specific secular harm to the child from the change; there'd be no evidence that the child is finding the change to be disruptive (in fact, the child seems to prefer it), and no evidence that the religious services somehow involve some physical danger to the child. Nor would the judge be finding any binding contract to raise the child irreligious; there's no evidence of a willingness to be so bound, and no legal hook for the court to consider the contract between the parties in making a decision that's supposed to be about the best interest of the child.

The judge would simply be saying that a parent who had moved towards greater religiosity since when the child was born should be disfavored. And secular courts are not supposed to make such judgments.

But if I'm right, then how could the actual child custody decision (quite commonplace in Michigan courts, and some other courts, or so my research suggests) be constitutional? If a court can't hold against a parent the fact that she has moved away from agnosticism and towards religiosity, how can it hold against a parent the fact that she has moved away from organized religion and towards less church attendance?

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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.

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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.

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