March
31, 2006 Religious
Discrimination in Child Custody Settlements
Austin Cline
highlights a very routine but
underreported civil liberties violation:
Imagine if Christians were commonly
denied custody of their own children
by judges who declared that attendance
at Christian churches and maintaining
a Christian education were contrary
to the children’s best interests.
The outcry against such a violation
of basic liberties would be incredible
— and the Christians would be right
to be so upset. They are not upset,
though, when Christian parents are
benefiting from the same bigotry and
discrimination aimed at atheists,
agnostics, and parents who are simply
apathetic about religion.
A recent article by UCLA law professor
Eugene Volokh (PDF file available
here) documents an astonishing
pattern of systematic religious bias
by family court judges. The clear
message this article sends is that
many family court judges are more
likely to award custody of children
to parents who hold religious beliefs
similar to their own--even if more
relevant considerations, such as the
parents' moral character or history,
would otherwise lead to a different
outcome.
Volokh explains that although these
cases are clearly unconstitutional,
they operate in a rather nebulous
area of civil law:
Some judges may prefer not to consider
a parent’s ideology in the ... decision
[regarding what would serve the "best
interests" of the child]. They
might think such consideration offends
free speech principles, whether or
not it actually violates the Constitution.
Or they may think such inquiries are
likely to yield much heat and little
light, as each parent argues about
what the other supposedly believes
and plans to teach. Judges may also
prefer not to restrict parental speech
because they think such orders may
be too hard to enforce—perhaps because
enforcement would mean calling children
to testify against their parents,
which might hurt the children more
than the order would help them.
Yet other judges may plausibly
think that the benefits of considering
a parent’s likely future teachings
outweigh the costs. In some states,
appellate courts have imposed one
limit on such decisions: They have
held that trial judges may restrict
parents’ religious teachings only
if there’s evidence that the teachings
are not merely against the child’s
“best interests,” but are causing
or are likely to cause substantial
emotional harm to the child. But this
limitation hasn’t been adopted by
all states ...
In fact, Volokh identifies 18 states
where custody has recently been decided
based partly or entirely on the judge's
personal religious preferences: Alabama,
Arkansas, Connecticut, District of
Columbia, Georgia, Iowa, Louisiana,
Michigan, Minnesota, Mississippi,
Montana, Nebraska, New York, North
Carolina, Pennsylvania, South Carolina,
Tennessee, and Texas.
Because blatant religious bias on
the part of a judge is a clear violation
of the First Amendment's establishment
clause, parents affected by such rulings
may have a very strong case on appeal.
But so far, the U.S. Supreme Court
has not specifically ruled that judicial
religious bias violates the establishment
clause--and until such a ruling is
established, judicial abuse of this
kind is likely to continue.