To Those Who Defend Family Court Decisions That Discriminate Based on Parents’ Religion:

I’ve seen quite a few defenses of the anti-pagan-parent decision along the lines that the best interests of the child should trump constitutional considerations, that parents should be free to believe what they will but shouldn’t be free to expose their children to it, and the like. I discuss this in considerable detail in my article, especially Part II.B, PDF pages 53-81. But for now, let me ask you what you’d think of this hypothetical decision:

One factor we count in favor of awarding custody to the father is that mother is a devout Christian, who takes the view that sex before marriage is immoral, that homosexuality is immoral, and that people who don’t accept her so-called Savior are going to end up eternally damned. Moreover, mother not only practices this in private, but expresses her views in ways that the child will surely learn about, for instance by going to Christian churches in public places, and discussing her religion online where she has two to four websites of so-called “blogs.” And we have reason to think that as the child gets older, mother will actually try to teach these views to the child.

In our view, such teachings are distinctly against the child’s best interests. We believe that they may cause unnecessary psychological suffering during adolescence, especially if the child finds himself sexually interested in the same sex. The fear of eternal damnation — both for the child and for the child’s love ones — strikes us as especially likely to cause needless suffering, especially since it seems to be entirely lacking in any factual evidence.

Finally, we would be remiss in ignoring that the mother’s views are decidedly out of step with the views of the diverse yet oddly ideologically homogeneous City and County in which we live. If the child adopts such views, the child may find himself having a hard time interacting in productive and nondiscriminatory ways with his neighbors, whether they are gay/lesbian/bisexual/transgender, heterosexual but engaged in premarital sex, non-Christian, or just simply tolerant and open-minded. It is therefore clear to us that it is, all things being equal (or even nearly equal), far better for the child to be raised by the agnostic father than by the Christian mother.

A few possible answers:

1. This decision, as well as a decision discriminating against pagan, atheist, less religious, racist, Communist, unpatriotic, hyperpatriotic, etc. parents, would violate the First Amendment, because (at least absent some evidence that the teaching are likely to lead to serious and imminent harm) a court ought not consider a parent’s ideology.

2. This decision is perfectly constitutional, since the best interests of the child trump any constitutional considerations. “The issue wasn’t so much that Mom was [Christian], but that she blogged about it. She has a right to her own [attitudes about sex], but the kid has some right to be free of them. There’s at least an inference here that the blogging and open talk of [hostility towards certain kind of] sexuality were creeping over into the parenting sphere of this child’s life.”

3. This decision is mistaken, but only because the court errs in its “best interests” judgment. If it really was against the child’s best interests to be raised to believe that premarital sex and homosexuality is wrong, and that non-Christians will go to hell, the decision would be entirely proper. A judge who believes that being raised Christian (or this kind of Christian) is against the child’s best interests should rule exactly the way this hypothetical judge did. Likewise, an appellate judge who agrees (or who thinks this finding isn’t clearly erroneous) should affirm the ruling. I just think that judges should take a different view of the facts, and rule the other way because of that.

4. This decision is unconstitutional, but a decision discriminating against pagan, atheist, less religious, racist, Communist, unpatriotic, hyperpatriotic, etc. parents would be constitutional, because [please explain why].