pageok
pageok
pageok
Discrimination Against Atheists:

I've often argued that it's improper for the government to discriminate against religious people and institutions because of their religiosity (see, for instance, my Equal Treatment Is Not Establishment article). But it's equally improper for the government to discriminate against irreligious people and institutions because of their lack of religiosity.

Fortunately, such discrimination is, I think, rarer now than it once was -- recall that until 1961, some states officially excluded atheists from certain jobs, such as notaries public. Yet it persists in some contexts, even overtly, and it's important to condemn this. For instance, though it's an open question to what extent it's constitutional for the government to discriminatorily give religious exemptions from generally applicable laws to religious objectors but not conscientious objectors, I think that the government should treat religious and conscientious objectors evenhandedly even if it isn't constitutionally obligated to. (I set aside here the question of government speech; I think the case for a government power to express itself religiously, at least in some contexts, is much stronger than the case for a government power to discriminate among citizens based on religion, but that's a story for another day.)

Here's an example that I think is particular egregious: The discrimination in favor of religious parents and against irreligious ones, or in favor of more religious parents and against less religious ones, in child custody cases, on the theory that it's in the child's "best interests" (that's the relevant legal test) to be raised with a religious education.

Mississippi is the most serious offender, though I've seen cases since 1990 in Arkansas, Louisiana, Michigan, Minnesota, Pennsylvania, South Carolina, South Dakota, and Texas; there are similar cases in 1970s Iowa, Nebraska, North Carolina, and New York. (I give cites below.) In 2001, for instance, the Mississippi Supreme Court upheld an order giving a mother custody partly because she took the child to church more often than the father did, thus providing a better "future religious example." In 2000, it ordered a father to take the child to church each week, as a Mississippi court ordered in 2000, reasoning that "it is certainly to the best interests of [the child] to receive regular and systematic spiritual training."

This violates the Free Speech Clause: Just as government discrimination against religious viewpoints is unconstitutional, see, e.g., Rosenberger v. Rector, so government discrimination against nonreligious viewpoints is unconstitutional. It violates the Establishment Clause: It coerces religious practice, either directly by ordering a parent to take the child to church, or indirectly by threatening the parent with a diminution in legal rights if he doesn't practice religion; the Court has rightly and unanimously taken the view that legal coercion of religious practice is unconstitutional (see both the majority and the dissent in Lee v. Weisman). It endorses religion (though the prohibition on endorsement is more controversial than the prohibition on coercion). And it discriminates based on religiosity. It may also violate the Free Exercise Clause, if (as I think is the case) the "free exercise of religion" includes the freedom not to have one's rights reduced because one exercises religion solitarily rather than in church, exercises religion less actively and passionately than some others, or has no religion at all. (The freedom of speech has been understood as including the freedom to choose what not to say as well as what to say; it seems to me the same applies to free exercise of religion.)

Finally, I realize that some people think it's in a child's best interests to be raised in a religion, perhaps because it will be more likely to make the child feel deeply about the need to follow some moral code. For all I know, this might be true. But other people equally think it's in a child's best interests to be raised skeptical of all religions, because it will be more likely to make the child into a rational thinker who doesn't take factual assertions on faith, and refuses to believe such assertions (whether about the Virgin Birth or the parting of the Red Sea or the creation of the world by an omnipotent, omniscient, benevolent God) unless he's given solid evidence that they're true. Freedom of religion, and freedom of speech, means that the government shouldn't make custody decisions based on such assumptions -- and of course if it can make custody decisions based on anti-atheist assumptions, it can also make them (and has made them) based on antireligious assumptions.

* * *

Citations for discrimination against the irreligious or less religious: Blevins v. Bardwell, 784 So. 2d 166, 175 (Miss. 2001); Staggs v. Staggs, 2005 WL 1384525 (Miss. App.); Brekeen v. Brekeen, 880 So. 2d 280, 282 (Miss. 2004); Turner v. Turner, 824 So. 2d 652, 655-56 (Miss. App. 2002); Pacheco v. Pacheco, 770 So. 2d 1007, 1011 (Miss. App. 2000); Weigand v. Houghton, 730 So.2d 581 (Miss. 1999); Johnson v. Gray, 859 So. 2d 1006, 1014-15 (Miss. 2003); McLemore v. McLemore, 762 So. 2d 316 (Miss. 2000); Hodge v. Hodge, 188 So. 2d 240 (Miss. 1966); Johns v. Johns, 918 S.W.2d 728 (Ark. App. 1996); Ark. Sup. Ct. admin. order no. 15 (enacted 1999); Peacock v. Peacock, 903 So.2d 506, 513-14 (La. App. 2005); Pahal v. Pahal, 606 So. 2d 1359, 1362 (La. App. 1992); Ulvund v. Ulvund, 2000 WL 33407372 (Mich. App.); Mackenzie v. Cram, 1998 WL 1991050 (Mich. App.); Jimenez v. Jimenez, 1996 WL 33347958 (Mich. App.); Jonhston v. Plessel, 2004 WL 384143 (Minn. Ct. App.); In re Storlein, 386 N.W.2d 812 (Minn. Ct. App. 1986); McAlister v. McAlister, 747 A.2d 390, 393 (Pa. Super. 2000); Thomas v. Thomas, 739 A.2d 206, 213 (Pa. Super. 1999); Gancas v. Schultz, 683 A.2d 1207 (Pa. Super. 1996); Scheeler v. Rudy, 2 Pa. D. & C. 3d 772, 780 (Com. Pl. 1977); Shainwald v. Shainwald, 395 S.E.2d 441, 446 (S.C. App. 1990); Hulm v. Hulm, 484 N.W.2d 303, 305 & n.* (S.D. 1992); In re Davis, 30 S.W.3d 609 (Tex. Ct. App. 2000); Snider v. Grey, 688 S.W.2d 602, 611 (Tex. Ct. App. 1985); In re F.J.K., 608 S.W.2d 301 (Tex. Ct. App. 1980); In re Marriage of Moorhead, 224 N.W.2d 242, 244 (Iowa 1974); Ahlman v. Ahlman, 267 N.W.2d 521, 523 (Neb. 1978); Dean v. Dean, 232 S.E.2d 470, 471-72 (N.C. App. 1977); Robert O. v. Judy E., 90 Misc.2d 439, 442 (N.Y. Fam. Ct. 1977).

Citations for discrimination against people who are seen as too religiously fundamentalist: Collier v. Collier, 14 Phila. 129 (Pa. Ct. Common Pleas 1985); Waites v. Waites, 567 S.W.2d 326 (Mo. 1978); Stolarick v. Novak, 584 A.2d 1034 (Pa. Super. 1991); In re Marriage of Epperson, 107 P.3d 1268 (Mont. 2005).

Hank:
Eugene writes "that some people think it's in a child's best interests to be raised in a religion, perhaps because it will be more likely to make the child feel deeply about the need to follow some moral code. ... But other people equally think it's in a child's best interests to be raised skeptical of all religions, because it will be more likely to make the child into a rational thinker who doesn't take factual assertions on faith." He omits that some people think it's in a child's best interests to be raised skeptical of all religions because it will more likely make the child a moral person. Some religious people, after all, use religion as a substitute for morality, thinking that if they believe, or attend church, they must be moral people and do not worry as much as they otherwise might about the morality of their behavior. They may also be affected by a belief that God will forgive their behavior. Some atheists, by contrast, may think more seriously about the morality of their behavior.
8.29.2005 4:27pm
Igglephan:
Among the more egregious are guidelines in adoption programs -- not just custody arrangements -- that favor placing the child with parents of similar religious persuasions to the donating parent. Bear in mind this is the context of the *termination* of parental rights. This is recognized by statute even in supposedly liberal states like New York and Illinois.
8.29.2005 4:28pm
lucia (mail) (www):
This is recognized by statute even in supposedly liberal states like New York and Illinois.

Illinois is liberal?

It's true that the Republicans committed Hara-kiri during the 2004 elections, but I'm sitting here in DuPage County, Illinois. I'm dubious about about the idea this state is, on the balance, liberal. I think the state wide elections seems to swing back and forth fairly regularly.
8.29.2005 4:40pm
Steve:
Sometimes parents who are giving their child up for adoption want to see their child placed with adherents of their same religion. I see nothing particulaly egregious about honoring this practice, and if it helps everyone involved feel better about the decision, that's a good thing.
8.29.2005 4:46pm
Hank:
Steve: it doesn't help the people of minority religions, or nonbelievers, who are discriminated against feel better.
8.29.2005 4:53pm
Douglas (mail):
While I agree with the foundational principal of the argument, that you shouldn't discriminate between the religious and atheists, I think there might a fine line that is being ignored. If there are two parents, one of whom is a devoted Christian and one of whom is an equally devoted atheist/Jew/Hindu/etc., I agree that the court should not favor one over the other. However, I think that the court, especially in the amorphous world of custody battles, should be able to discriminate towards a parent who is more likely to raise a child with a solid religious instruction.

I think that I can safely say that it is better for a person to have a more solid theological world view (Christian or otherwise) than to be lacking in instruction in such a world view. In the case where you have two parents who are both Christian, and one attends church regularly while the other attends Christmas/Easter, I think that the court can use this to favor the devoted parent. This is especially true if the C/E parent agrees that church is important.

Obviously this rule woudl be difficult to implement in practice, but I do think that it makes a difference.
8.29.2005 4:57pm
Eugene Volokh (www):
Well, it's not enough for me that people feel bad. A government-imposed rule that parents may insist that a child be raised in a particular religion -- or, if they so choose, that a child be raised as an atheist -- is a different matter than a rule in which the government itself chooses to favor the religious over the irreligious.

The rule may still be bad policy, if it delays the child's adoption. One can also argue that it should be unconstitutional either because it does involve some religious classification on the part of the government, or because it requires the government to make theological judgments, for instance about whether Lutherans are close enough to Methodists, or whether some Jewish applicant is really Conservative (as the parents demanded) or actually Reform. But it's still not nearly as troubling as a legal rule under which atheists are legally disfavored, because of the government's judgment, not the parents' judgment.
8.29.2005 5:01pm
Byron (mail):
It seems there is also discrimintation in 501(c)(3) as it provides tax support for religious preferences but not non-religous preferences. Bracketing whether the tax code should support charitable contributions, at least charitable contributions must generally (nominally?) have some form of public purpose. Some of the other exemptions - scientific, testing for public safety, prevention of cruelty to children/animals - also seem to have a decent public policy argument. Religous, educational and ametuer sports contributions are also exempt under 501(c)(3) but these expenditures seem more about personal consumption than they do charity. If a religous contribution is charitable, it should qualify regardless under the charitable clause in 501(c)(3). Religous contributions are exempt however, even if not charitable, simply by thw reason (under the code) that they go to a religion. This is a subsidy of the preferences of religious people (getting together in big stone buildings on the weekend - or whatever it may be) that is unavailable to atheists for their consumption preferences. The argument over whether it is a good idea for government to subsidize religion is probably no different than the argument over whether it should favor certain adoptions. The religious exemption in 501(c)(3) may or may not be constitutional under the establishment clause (there is Supreme Court precendent saying that tax expenditures aren't government expenditures, even though the effect is very similar), but, regardless, it seems like a bad use of government money.
8.29.2005 5:03pm
Steve:
How does placing adopted children with families of the same religion discriminate against nonbelievers, or against anyone at all? If two nonbelievers want to give their child up for adoption with the proviso that they don't want it to be raised in a religious household, I would be in favor of respecting that as well.
8.29.2005 5:04pm
DanB:
I think that I can safely say that it is better for a person to have a more solid theological world view (Christian or otherwise) than to be lacking in instruction in such a world view.

Well certainly you can say it, but can you provide some indication that it is actually true? Regular church attendance is, after all, negatively correlated with education and wealth. Atheists are, furthermore, statistically underrepresented in prisons (although that may be due to the fact that parole boards discriminate in favor of religious prisoners, so there's more incentive to pretend you believe).
8.29.2005 5:14pm
JoeSlater (mail):
Douglas writes:

"I think that I can safely say that it is better for a person to have a more solid theological world view (Christian or otherwise) than to be lacking in instruction in such a world view."

I can safely say that I disagree completely. Some of the smartest, most moral, and most genuinely decent people I know are atheists and/or were raised by atheists. And beyond that, admittedly anecdotal, experience, I can't think of any reason why the state should prefer those who profess belief in a given theology over those who remain unconvinced by any theology.
8.29.2005 5:15pm
Douglas (mail):
I can safely say that I disagree completely. Some of the smartest, most moral, and most genuinely decent people I know are atheists and/or were raised by atheists. And beyond that, admittedly anecdotal, experience, I can't think of any reason why the state should prefer those who profess belief in a given theology over those who remain unconvinced by any theology.

I think that you misunderstood my point. In no way was I trying to say that the state should prefer one theological world view (Christianity) over another theological world view (atheism).
8.29.2005 5:23pm
Douglas (mail):
Well certainly you can say it, but can you provide some indication that it is actually true? Regular church attendance is, after all, negatively correlated with education and wealth. Atheists are, furthermore, statistically underrepresented in prisons (although that may be due to the fact that parole boards discriminate in favor of religious prisoners, so there's more incentive to pretend you believe).

If you read my other response, my point was that I think that most people would agree that it is better to have a stronger understand of your beliefs regarding religion than a weaker understanding. Whether or not your beliefs are for or against the existence of God(s) is not the point. The point is that you have a full understand of why you believe that you do.
8.29.2005 5:27pm
Clayton E. Cramer (mail) (www):
I agree that this just about always bad policy--but it seems a bit more arguable about whether it is unconstitutional. There's no question that the "no religious test" clause, in combination with the free exercise clause, prohibits the federal government from discriminating against atheists--even though such discrimination was both statutory and constitutional at the state level at the time, with many states limiting holding office to Protestants (North Carolina Const., Art. 32) or allowing the legislature to limit it to Christians (Maryland Const., Art. 33), or allowing the state to limit office holding to those "who acknowledges the being of a God and a future state of rewards and punishments" (Penn. Const. Art. IX, sec. 4).

The 14th Amendment clearly incorporates the First Amendment against the states (regardless of whether you adopt full incorporation or selective incorporation), but what was the state of state laws in this area in 1868, when the 14th Amendment was ratified? At least some state constitutions still discriminated against atheists for holding office (Pennsylvania, for example, which still does), and I would be a little surprised if that was the only example of either constitutional or statutory discrimination.
8.29.2005 5:30pm
Arthur (mail):
The city of Philadephia has a special tax on people who don't go to church on sunday morning. Well technically, it's a tax on people who don't go to church on Sunday morning and park on the Morth side of Locust Street between 16th and 18th (across the street from my office). If you have a church decal on your car issued by an episcopal church right there, you don't get ticket. If you don't, parking is illegal, and you do. Since there's no sign, sooner or later every new lawyer at my firm drives in on Sunday morning, parks there, gets the ticket, and plans to fight the ticket all the way to the Supreme Court. But usually they end up paying the ten bucks.

(yes, there's a similar deal for parking by synagogues in various places on friday evenings. I don't know about the mosques, or the Ethical Culture Society down the street.)
8.29.2005 5:34pm
Carol Anne:
Douglas said I think that the court, especially in the amorphous world of custody battles, should be able to discriminate towards a parent who is more likely to raise a child with a solid religious instruction.

Then, later, Douglas said In no way was I trying to say that the state should prefer one theological world view (Christianity) over another theological world view (atheism).

Would you be kind enough, Douglas, to reconcile what I perceive as mutually-contradictory statements?
8.29.2005 5:39pm
Douglas (mail):
Carol Anne:

I apologize for the sloppy language. I shouldn't have used the term "religious instruction" when I really meant education in theological world views. Personally, I consider atheism itself to be a religion, however, I understand that many atheists heartily disagree with that characterization. The point of my post was that the courts should be able to discriminate in child custody between those who appear that they will give their children more solid instruction in the parent's view of theology over those parents who appear to ignore that aspect of their child's life.
8.29.2005 5:44pm
Anthony (mail) (www):
Choosing a custodial parent based on the consistency of a parent's adherence to his or her religious beliefs isn't particularly troubling, provided that the issue is not whether one parent is a non-believer, or choosing one faith as better than another.

Why not? If both parents claim to be of a certain religion, and one is more likely to practice the outward signs of the faith, it may be reasonable to assume that the more consistent parent will be more conscientious about other aspects of raising the child also. Even if there is no specific benefit, or no benefit which may legally be considered, from the actual practice of going to church, etc., it may serve as a rough proxy for the likelihood of parental involvement in other areas of the child's life which will produce actual (and legally cognizable) benefits.
8.29.2005 5:46pm
TomH (mail):
In defense of Douglas and his classification of atheism, Oxford English Dictionary defines religion as:

• noun 1 the belief in and worship of a superhuman controlling power, especially a personal God or gods. 2 a particular system of faith and worship. 3 a pursuit or interest followed with devotion.

I think you can squeeze his classification into the third definition.
8.29.2005 6:22pm
Shannon Love (mail) (www):
Actually, it is fairly easy to show empirically that people who attend religious services regularly are better at providing a stable environment than those that don't. Church attendance is a strong inverse predictor of problems such a drug use, dropping out and crime among teenagers. Since, the actual religion (Christian, Jewish, Islamic etc) doesn't seem to matter, church attendance is probably just a marker for organized and devoted individuals who make better parents. Somebody who will voluntarily get up on Sunday morning (or whenever) when they don't have to and go to church is also the kind of person who will pay closer attention to the welfare of a child.

Since the correlation exist, the courts could use Church attendance as a determining factor based on its secular advantages alone.
8.29.2005 6:28pm
DanB:
Since the correlation exist, the courts could use Church attendance as a determining factor based on its secular advantages alone.

Sounds like dangerous reasoning to me. Blacks are many times more likely to go to prison than whites are; should courts therefore give preferential treatment to white people?
8.29.2005 6:55pm
Hank:
Steve: You ask, "How does placing adopted children with families of the same religion discriminate against nonbelievers, or against anyone at all?" It's one thing if the birth parents arrange an adoption privately with adoptive parents they know. But if they turn the child over to an agency to find adoptive parents, then nonbelievers, or believers in a minority religion, will have fewer chances to adopt.

Then you add, "If two nonbelievers want to give their child up for adoption with the proviso that they don't want it to be raised in a religious household, I would be in favor of respecting that as well." That argument has the same form as a flawed argument against allowing interracial or gay marriage. It goes: it's not discrimination because both blacks and whites are limited to marrying members of their own race, or both men and women are limited to marrying people of the opposite sex.
8.29.2005 6:56pm
Edward A. Hoffman (mail):
Shannon Love makes an interesting point and I'll assume arguendo that there is evidence to support it. But suppose there is also evidence which shows that members of one major political party "are better at providing a stable environment" than members of the other. Should courts then prefer the parent who is a member of the more stable party? My guess is that Ms. Love will say no, but I am curious to know how she would distinguish this hypothetical from a decision based on religious observance.

More to the point,, there is a wealth of evidence that black parents are more likely to have unstable home environments than white parents. Should the states officially prefer whites in decisions about custody and adoption? (To avoid getting bogged down by other issues, let's limit the discussion to children of mixed-race parents.)
8.29.2005 6:58pm
DanB:
I shouldn't have used the term "religious instruction" when I really meant education in theological world views

I'm not sure what theological instruction is supposed to be involved in atheism. I'm an atheist, and I never received any instructions about it. All I had to do was not believe in the Christian theology I was taught, and in the various other theologies I've encountered since then. I didn't have to sit through a single Sunday school class or read a single book to figure out what atheism was about. All I had to do was be born -- all children are, after all, born not believing in gods -- and fail to buy into any religions since then.
8.29.2005 7:03pm
Steve:
But if they turn the child over to an agency to find adoptive parents, then nonbelievers, or believers in a minority religion, will have fewer chances to adopt.

There seems to be zero empirical evidence for this argument. I would suspect a minority of parents who give their child up for adoption insist that he or she be placed in a home of the same religion, and that respecting this wish has little or no effect on the overall availability of children for adoption. If there is evidence to the contrary, I might agree that there are policy arguments for restricting this choice, but I'd have to see that evidence.

Then you add, "If two nonbelievers want to give their child up for adoption with the proviso that they don't want it to be raised in a religious household, I would be in favor of respecting that as well." That argument has the same form as a flawed argument against allowing interracial or gay marriage. It goes: it's not discrimination because both blacks and whites are limited to marrying members of their own race, or both men and women are limited to marrying people of the opposite sex.

It's pretty obvious to most thinking people that laws against interracial marriage were not race-neutral, but were part and parcel of societal discrimination against blacks. But it's not at all obvious to me who the disfavored group is if an adoption agency places Catholic kids with Catholic families, Jewish kids with Jewish families, and atheist kids with atheist families. In all cases, we're simply respecting a reasonable request by the birth parents.
8.29.2005 7:15pm
Hank:
Steve: I don't know what percentage of parents who give up their children for adoption insist that the adoptive parents be of a particular religion. But, whatever percentage it is, it reduces the opportunities of members of minority religions and atheists, and that is wrong. In the U.S., there are more Protestants than Catholics, Jews, Muslims, atheists, etc. It is likely, therefore, that there are more adoptable children of Protestants than of other religions or non-religions. If a Catholic, Jew, Muslim, or atheist applies to adopt, it is more likely than with a Protestant that there will be no children available, or fewer to choose from. This means that those who write the adoption laws, the majority of whom likely adhere to the majority religion, favor those of that religion. The fact that their intent may not be to discriminate does not change that fact.
8.29.2005 7:31pm
Glenn:
I have a question for the Constitutional lawyers out there:

Suppose a strong, valid statistical correllation could be made between good child-rearing outcomes and religious households when compared to non-religious households.

Could this fact (assuming arguendo it exists; I am not suggesting it does) be a compelling interest that overrides an interest in equal treatment? I am not talking about trying to evaluate whether or not the child ultimately adopts and adheres to a religion, or receives religious training. I agree that requiring or suggesting a requirement for a religious education would definitely violate the First Amendment. On the contrary, I am simply talking about statistical outcomes relative to parental religiousity.
8.29.2005 7:53pm
Edward A. Hoffman (mail):
Glenn asks:

Could this fact (assuming arguendo it exists; I am not suggesting it does) be a compelling interest that overrides an interest in equal treatment?

I hope not, because the same logic would support taking children from non-religious parents regardless of whether the parents want to give them up for adoption.

Even setting aside this slippery-slope argument, I very much doubt that such a policy could pass muster. Such a policy would have to survive strict scrutiny by the courts, which means -- among other things -- that the government would have to prove its practice was narrowly tailored to meet its objective and that no other method which discriminated less would be as effective. Policies which view people as members of groups rather than as individuals generally fail such a test, especially where what matters is individual character traits and circumstances rather than group membership.
8.29.2005 8:05pm
Glenn:
Edward said:


I hope not, because the same logic would support taking children from non-religious parents regardless of whether the parents want to give them up for adoption.


Well, I think that is rather different, don't you? In the one case, you have two couples who have no original parental claim, and in the other you have actual parents involved.

I don't suppose I am really qualified to comment on strict scrutiny vis-a-vis an adoption, but don't we do similar things all the time - i.e. affirmative action and Title IX and so forth? Do they have to survive strict scrutiny?
8.29.2005 8:27pm
Medis:
This discussion illuminates a common problem. Terms like "atheists" or "the non-religious" are generally unhelpful or even actively misleading, for a basic reason: they define people by their lack of certain beliefs, but say nothing in particular about what those people do believe. Similarly, these hypothetical or putative claims about church-attending folks versus "others" gloss over the notable differences among the "others", a group which could include nihilists, "non-religious" people with various value systems, and people with "religious" beliefs who simply don't attend church. Indeed, I suspect the last are by far the largest segment of non-church-attenders in the United States, and yet somehow people seem to think one can draw strong conclusions about people in the first two categories on the basis of such statistical claims.

Accordingly, I am somewhat sympathetic to the notion that if anything should matter at all, it should be the degree of something (seriousness? effectiveness? honesty?) with which the parents might take their role as a (philosophical/moral/religious?) instructor of the child. The problem is that I see no way to put this notion into practice. It has no direct application to "atheists"/"the non-religious", because we don't yet know from that description what those people believe. And what about agnostics, skeptics, and nihilists ... what would it mean to require parental instruction from people with such views? And can we really expect family court judges to sort through all this in anything like a neutral matter?

Which is why a rule requiring formal neutrality with respect to religious matters makes the most sense--because no judge can be expected to know how to gauge the seriousness (or whatever) of all possible forms of instruction of all possible relevant beliefs.
8.29.2005 9:23pm
Edward A. Hoffman (mail):

Well, I think that is rather different, don't you? In the one case, you have two couples who have no original parental claim, and in the other you have actual parents involved.

I agree, which is why I continued with my next point. But I submit that a policy which would label tens of millions of people inferior parents based on their religious practices is odious, even if it is never used to take away children the parents want to keep.

I don't suppose I am really qualified to comment on strict scrutiny vis-a-vis an adoption, but don't we do similar things all the time - i.e. affirmative action and Title IX and so forth? Do they have to survive strict scrutiny?

As a matter of fact, they do -- at least as to affirmative action. I'm not an expert on Title IX, so I will defer to others on that one.
8.29.2005 9:37pm
Igglephan:
I can see the argument that factoring in religious preference may make some parents on the margin more willing to put the child up for adoption, which is a good thing. But it seems silly since once parental rights are terminated, the whole intent is frustrated if the adopting parents have a bona finde religious conversion, for instance. I'm not sure if adoption agencies are state actors, so inquiring into whether the adopting parents are engaging in fakery probably does not violate the entanglement prong of Lemon (and it is neutral, so there is no endorsement -- any discrimination is just that athiests are statistical minorities, so it would be harder to find atheist donating parents.) Nevertheless, what bothers me is that the legal system's "respect" for religious beliefs, as opposed to *all other factors* allows donating parents dead hand control. If we had a regime where all adoption was by private contract, that would be OK; but it is a statutory scheme, where religious faith is singled out for preferential treatment.
8.29.2005 9:41pm
Anon1ms (mail):

Blacks are many times more likely to go to prison than whites are; should courts therefore give preferential treatment to white people?


Don't they?
8.30.2005 12:19am
Paul doson (mail) (www):
Terms like "atheists" or "the non-religious" are generally unhelpful or even actively misleading, for a basic reason: they define people by their lack of certain beliefs, but say nothing in particular about what those people do believe.If there are two parents, one of whom is a devoted Christian and one of whom is an equally devoted atheist/Jew/Hindu/etc., I agree that the court should not favor one over the other.
John
8.30.2005 1:24am
Glenn:
Edward said:

I agree, which is why I continued with my next point. But I submit that a policy which would label tens of millions of people inferior parents based on their religious practices is odious, even if it is never used to take away children the parents want to keep.


I see your point, and I am personally in agreement. But I still don't see much difference between one outcome-based process and any of the myriad of others we have seen fit to shoehorn into our society. We "label...people inferior" all the time with preferences, don't we? Actually, I think the idea of "labeling" someone "inferior" is kind of a "half-empty" argument, but may be all the more accurate for that.

I guess my overall point is that our legal system has used desirable outcomes (even theoretical ones) as a basis for reducing the importance of purely equitable consideration many times. What justification would we postulate for drawing the line at adoption? Is religion more important (as an absolute constitutional principle) than race or gender?
8.30.2005 8:05am
Shawn:
Wasn't the Pledge of Allegiance altered in 1954 specifically to make athiests (who were considered communists) unwelcome in this country?

I would consider that an on-going form of discrimination against non-theists and polytheists.
8.30.2005 10:03am
Frank J. (mail) (www):
Is it okay for the state to favor morality over immorality? I would hope so. Then, favor should go to who has a better basis in morality.

Now, there are many different types who believe in God: those who believe in God but don't go with any particular religion, those who attend religion sporadically (e.g. holiday Christians), those who attend regularly out of habit but their eyes glaze over during worship, those who actively participate in his or her church, those who proselytize and make their religious beliefs to anyone, and more.

People who don't believe in God come in a lot of varieties too: those who haven't given God much thought, those who don't believe in God but keep that to him or herself, those who proselytize and make it known how foolish he or she believes a belief in God to be and works actively towards a non-religious society, etc.

Now, an atheist can be more moral than someone who claims to be religious, but being religious is an easy indicator to look for if you're looking for someone moral. What atheist need is a religion - one that sets out a basis of morality based on something... just not a higher power. Give the religion a name, and then it should have the same standing as any other religion. I've known many atheists I know to be moral people (I've even known some to be against abortion; they have a strong belief in human life without using God), it just has to be spelled out like a religious belief as an outward sign of morality.

CAVEAT: This advice comes from someone who is admittedly a fundamentalist Christian.
8.30.2005 10:31am
Duncan Frissell (mail):
A horrific case of discrimination against atheists occured in New Orleans over the weekend. The Mayor announced that the City had faxed all the churches to encourage them to check on their members and evacuate them if necessary.

He didn't do this for the atheists of New Orleans. They were abandoned to drown in the storm surge.

Should religious believers get this special treatment?
8.30.2005 11:47am
Duncan Frissell (mail):
Byron -- Good news. The Ayn Rand Institute is a 501(c)3 as is American Atheists.

The major religious benefit in that part of the tax code is that churches are tax exempt whether they file for 501(c)3 status or not. The Service can pull their exemption for indulging in non-charitible activities (institutional endorsment of candidates, for example) but they don't have to file in the first place. Major benefit.

Any atheist grojup could probably litigate the matter if they felt like it and even win.

The reason churches are automatically "charitible" is because the word means love and churches are (in the absence of information to the contrary) held to be acting for charitible motives in whatever they do.
8.30.2005 12:26pm
Cal Lanier (mail) (www):
"Wasn't the Pledge of Allegiance altered in 1954 specifically to make athiests (who were considered communists) unwelcome in this country? "

Yes, I've wondered about this as well. The text of the law doesn't mention the religious aspect, but wasn't that its purpose? The text wasn't ceremonial; it was explicitly added to demonstrate the superiority of belief over non-belief.

And doesn't Rehnquist think that non-believers are not constitutionally protected? Or is that too many negatives for one sentence?
8.30.2005 12:29pm
Duncan Frissell (mail):
Eugene - What about the special case of Satanists?

While atheists can be moral (though they did murder 170 million people in the 20th centuury), it seems to me that governments (as employers and as judgers of oath takers) could take note of the fact that Satanists are required by their faith to lie, steal, cheat, murder and generally act in an immoral fashion. What say you?
8.30.2005 12:33pm
Houston Lawyer:
If I were counseling a pregnant woman who wanted to put her child up for adoption and was informed that, at a state affiliated adoption agency, she couldn't ensure that her child would be adopted by a couple with similar religious beliefs, I would counsel her not to use that agency but use one that would accomodate her wishes. Just because she is terminating her parental rights doesn't mean she doesn't care about her child's upbringing.

As a society, we will all be better off if more children conceived out of wedlock are placed for adoption with married couples. I believe the empirical evidence strongly backs this belief. The rule, proposed by some of the commenters, that the mother be prohibited from having any say in the future religious upbringing of her child, would likely, in some cases, cause the mother to raise the child herself.

I believe that most adoption agencies try to place children with couples of the same race. Although I don't fully endorse this practice at the margins, by and large neither society nor the law condemns it. A "strict" reading of the equal protection clause might condemn this practice, but most people see no invidious discrimination where none clearly exists.
8.30.2005 12:35pm
Chris Hallquist (mail) (www):
Curious: what are your religious beliefs, if any, Eugene? What position would you take on the question of whether or not its better for children to be raised religious?
8.30.2005 1:09pm
Medis:
Frank J.,

There are all sorts of sources for moral systems besides religions. For lack of a better term, we might call them "philosophies", although even that term is too limiting in that it implies a particular view (or at least subset of views) on the nature of truth. Anyway, using this term, "atheists" could be "philosophers" of all different sorts, and as a result have all sorts of different sources for their moral systems.

The precise problem, however, is your further desire for external markers. Philosophers do not necessarily have to have special buildings, particular books, or even a name for their philosophies. So what sort of markers would you propose atheist/philosophers should adopt? Alternatively, why isn't it enough that a person's external marker be a general adherence to civil society? Why must we insist that the philosophy which has made them fit for civil society be further externalized in the same way that the philosophies of organized religions have been externalized before we will treat such people as equals?
8.30.2005 1:27pm
Burt Likko (mail):
If you want to talk about discriminating against atheists, you need look no further than my state of Tennessee. In the state's constitution, Article IX, Section 2 reads: "No person who denies the being of God, or a future state of rewards and punishments, shall hold any office in the civil department of this State." Still on the books; I guess I ought to forget about ever becoming a judge here.
8.30.2005 1:44pm
Heh. (mail):
Hey, I WISH someone like the ACLU would sue on these cases on grounds of religious discrimination. Then, some enterprising lawyer would introduce statistical and other evidence for the proposition that children raised in religious traditions are better adjusted. My guess is that existing statistical data would more than prove the case that kids are better off raised by religious parents, and liberals would spend the next ten years denying it. The entire time, they would be exposed to the public as folks who believe that children are better off without God.

Then again, say what you want about the ACLU, I don't think even they are stupid enough to bite on that hook.
8.30.2005 2:25pm
Medis:
Heh.,

That is an excellent example of the conceptual problem to which I was referring. You are contrasting "children raised in religious traditions" with some undefined "other" category. But that "other" category will include notably different subcategories, and even if your guess about the statistics turns out to be true of the broad category, that doesn't mean it is true of all the subcategories.
8.30.2005 3:03pm
Hans Bader (mail):
This sort of discrimination against parents who are "not religious enough" or "too" religious follows directly from the perverse logic of the amorphous and manipulable "best interests of the child" standard that governs child custody cases.

The basic law of child custody, which goes unchallenged in this blog, lets one spouse override the other spouse's constitutional right to the care and custody of their child, and get sole or primary custody of the child, just because a judge thinks (for subjective, often unexplained, reasons) that giving custody of that spouse is in the best interests of the child. (Disclosure: I am not divorced, and have no kids).

How many divorced dads get custody of their kids, anyway? The trial judge typically thinks it's in the kids' best interests for mom to have physical custody of them, even if she thinks they belong in day care when she's not around rather than with dad. (Frankly, gender is a much bigger factor in child custody cases than religion (even in the significant minority of households in which fathers play as significant a parenting role as mothers)).

(The studies you hear about claiming that divorced dads who seek custody get it as often as divorced moms are misleading because they refer to legal custody, not physical custody; joint legal custody has as much to do with actual custody as being the Queen of England has to do with actually governing England. It's a largely honorary designation: you have the right to be consulted by your ex about major decisions involving your kids, but not to actually raise your kids).

There seems to be no logical reason why a child's best interests could not include spiritual interests.

And strict scrutiny permits even fundamental rights like freedom of religion to be overridden by a compelling state interest. Freedom of religion is no more fundamental than the right to the custody and care of your own children.

If "best interests of the child" is compelling enough to take away one parent's constitutionally-protected custody rights in favor of the other, then it's compelling enough to take away a parent's constitutionally-protected freedom-of-religion rights, too, when it conflicts with the "best interests of the child."

If you can override a parent's entire right to custody, based on the best interests of the child, then it's hard to argue against merely limiting their freedom-of-religion rights by requiring them to attend church more often, if that's in the child's best interests.

I agree with Professor Volokh that this sort of discrimination is troubling, but I think it is much more deeply-rooted in long-standing (albeit inequitable) child custody precepts than he perceives.

Frankly, I don't think that decisions based on the "best interest of the child" satisfy strict scrutiny unless they are accompanied by clear guidelines as to what is and isn't in the child's best interests and defining the child's interests in terms of avoiding a substantial risk of objective harm rather than in terms of the judge's subjective preferences regarding child rearing.

If "indecency" is too vague a government goal to uphold a speech restriction under strict scrutiny, as the Supreme Court held in the Reno v. ACLU case (1997), then surely the even-vaguer "best interests of the child" standard is too vague to uphold restrictions on parental custody under strict scrutiny.
8.30.2005 3:15pm
Timothy (mail) (www):
Methinks Frank J. ought to read de Deauvoir's Ethics of Ambiguity before claiming that the religion is always a decent sign of morality.

Sometimes they are, sometimes they aren't, point is the State in matters of adoption and custody should look at the individual factors rather than broad categories. Family Courts also heavily favor mothers in custody disputes as well, same sort of deal. Belonging to a particular category does not always make one the more fit parent.
8.30.2005 4:14pm
DanB:
My guess is that existing statistical data would more than prove the case that kids are better off raised by religious parents

Actually, children of religious parents are overrepresented in prisons. Religious faith is positively correlated with poverty, criminal activity, and substance abuse. Atheism is negatively correlated with those things.
8.30.2005 4:33pm
Clayton E. Cramer (mail) (www):

Actually, children of religious parents are overrepresented in prisons. Religious faith is positively correlated with poverty, criminal activity, and substance abuse. Atheism is negatively correlated with those things.
Do you have some links for this? I don't find it implausible, but I would like some data to back this up. Of course, this might be because of religious belief or the lack thereof; it be because atheists are a relatively small minority, and I would guess overwhelmingly well-educated and therefore wealthy. You might be seeing a correlation with well-educated and wealthy more than religious belief.
8.30.2005 6:50pm
rayabacus:
Everyone regardless of religious affiliation, has a moral code of conduct. Some have a code of conduct derived from a set of specific religious tenets, i.e., the Ten Commandments. Others have a code of conduct obtained from the Inner City Streets (The Hood). Although they both have a moral code of conduct, the values they live by are going to be inherently different. We often say one is immoral when one's actions or beliefs are different from ours. Example: An immoral person has sex outside of marriage, or steals their food or even kills with impunity; or their language is profane; or they physically abuse other people. They are not immoral; they just have a moral code of conduct that is different than ours - even despicable to us.

If that person goes to church regularly or even becomes an officer of the church (BTK?), does that negate his chosen moral code of conduct? Point is that regardless of any religious affiliation, personal conduct determines what one's moral code of conduct really is. As an atheist I know many people who deign religion and some of them are the most "moral" people I have ever met. Conversely, there are some extremely religious (outwardly, obviously) people I know that I would not trust not to pick my pocket or put the moves on my mate.

Point is that there is no reliable yardstick that can measure "morality" other than the actions of the individual. Being religious, or practicing a religion does not make you "moral".

Any legal test, in any case, that equates religion with morality is discriminatory.
8.30.2005 8:01pm
Hank:
rayabacus: You say that when someone's actions are different from ours they're not immoral; they just have a moral code of conduct that is different from ours. That is incorrect. Morality is objective and therefore universal. We don't all agree on what codes of conduct are moral or immoral, or on what individual acts are moral or immoral, but we can have rational arguments about it and one of us will be right and the other wrong. Morality is not relative to a particular culture or religion, because the fact that a particular culture or religion engages in certain conduct does not constitute a rational argument that such conduct is moral. The Holocaust, to take an easy case, was immoral. It was not moral for Nazis and immoral for the rest of us. But the same is true for tougher cases, even if we can't agree as to whether those cases are moral.
8.30.2005 9:03pm
DanB:
Do you have some links for this?

None that I have bookmarked. You can draw some inferences from the report linked below, though.

You might be seeing a correlation with well-educated and wealthy more than religious belief

Oh, I just mentioned the negative correlations in response to the earlier claim that the statistics would show that religion is good for kids. I completely agree that the correlations of religion to morality (or lack thereof) is probably just a coincidence. For example, this report indicates that, of the four major ethnic groups, blacks are the "most Christian". They're also the most likely to go to prison, the most likely to develop substance abuse problems, and the most likely to be poor. I don't think that those facts have anything to do with each other, except inasmuch as poverty often inspires people to turn to crime, drugs, religion, or some combination of the three.
8.30.2005 10:26pm
Clayton E. Cramer (mail) (www):
I completely agree that the correlations of religion to morality (or lack thereof) is probably just a coincidence.
I don't agree with you on this. The difficulty with your example below is that you haven't dealt with the possibility that blacks would have even higher rates of drug abuse, poverty, and crime if not for the relatively higher rate of church attendance.

My experience is that the smarter people are, the more likely they are to engage in long-term thinking that discourages a lot of what is generally recognized as immoral behavior (stealing, violence, sexual promiscuity). Unfortunately, less intelligent people have a harder time understanding the benefits of long-term thinking--and for such people, religion may be the more effective restraint on behavior.

I'm not saying that religious beliefs are only for stupid people; I am saying that intelligent people can often reach similar results in behavior by having a less present orientation.

For example, this report indicates that, of the four major ethnic groups, blacks are the "most Christian". They're also the most likely to go to prison, the most likely to develop substance abuse problems, and the most likely to be poor. I don't think that those facts have anything to do with each other, except inasmuch as poverty often inspires people to turn to crime, drugs, religion, or some combination of the three.
It makes you wonder what the condition of blacks in the U.S. would be if they subscribed to a moral code that said that whatever you can get away with is okay.
8.31.2005 1:57pm
Heh. (mail):
Thanks, DanB! That's exactly the argument I'd like to see liberals make for the next 10 years! God is bad for kids!

Now, let's move forward on the lawsuits so the tone deaf Dem leadership can jump off the cliff you have so clearly presented for them...
8.31.2005 3:15pm
Medis:
Clayton,

You mean like a moral code based on the premise that the primary reason to be good now is in order to avoid punishment in the afterlife?
8.31.2005 9:28pm