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].
All Related Posts (on one page) | Some Related Posts:
- Preference for Public School Over Homeschooling -- and Maybe Private Schooling -- Because It Provides "Exposure to Different Points of View"?
- Another Quote from a Child Custody Case,
- "Father Shall Not Use Profanity or Racial Epithets in the Boys' Presence or Within Their Earshot":...
- Why Parents in Split Families Shouldn't Lose Their First Amendment Rights To Talk to Their Children:
- To Those Who Defend Family Court Decisions That Discriminate Based on Parents' Religion:
- Mother's Open Paganism Treated as Reason to Deny Her Custody:...
- NPR Weekend Edition on the Jihadist Father Gag Order Case:
- Parent-Child Speech and Child Custody Speech Restrictions:
- Parent-Child Jihadist Speech:
Then you can apply the same logic to the Pagan, whore, mother. The parties got married and promised to be faithful to each other and to cleave only to the other and to love, honor, and cherish the other. At the time of the marriage they wanted children and to impart these bigoted values to those children. Then mommy decided she wanted to exercise her constitutional right to [be unfaithful [gratutious vulgarity deleted -EV]] and to howl at the moon nude and post pictures of it on her pagan website and the result was the instant divorce.
Custody is awarded to father because to do otherwise would deny several of the basic provisions of the marriage contract entered into by these parties at the time of their marriage.
I also like your answer number 4, and the rationale supporting number 4 is.... well duh.....slapping forehead.
Says the "Dog"
I realize that (3) is, practically speaking, not an option, but just to point out that there is a legislative solution to the extent that people decide that judges are given too much lee-way to impart moral judgments. It would be an option, however, for the community in general if it considered judicial discretion to be too broad. Also, similar to that, the community should make sure that there are not judges elected/selected who make rogue decisions. If the community truly does have that level of homogeneity, the parents must acede to the state if and when they divorce if they want to live there.
These are still better options than the poor decision-making process of appellate ad hoc musing about how much religion is too much religion or when a parent can shield problematic behavior under the garb of religion or what have you.
If there is a community in which the legal landscape is so alien to one’s religion and beliefs, the religious institution should be forthright in promoting covenantal marriages as part of getting married.
At any rate, this is something of an academic question, because judges can hide their reasons for making decisions under secular findings of fact anyway.
It disturbs me to see parents teaching their children to be racists, or to disrespect women. But it's their right. As long as the child is not being deprived of his necessities or abused, government should not step in. We do NOT want the government dictating what an appropiate moral/religious/philosophical upbringing parents are to provide their children.
The reason I give little weight to Free Exercise issues is that the case inevitably involves two parents, each with Free Exercise rights and each with Constitutional rights to control the raising of their child. The child also has rights. Best Interest must control.
I think Establishment clause analysis is more important in this context because a well-reasoned decision can consider that certain practices (or beliefs) can be shown to be in the child's best interest. However, if that showing is not clear, a preference for mainstream religion or for the judge's religion departs from being a best interest determination and becomes a judge's attempt to Establish a particular religion as true, right, and preferred.
But historically the parents have always had the right to provide the child with moral/religious upbringing they see fit.
And that principle remains. But in a divorce, only one parent is going to wind up as the primary caregiver, with control over the child's moral/religious upbringing. I agree that government shouldn't be deciding what sort of religious upbringing is better or worse, but still, the circumstances dictate that you have to pick one parent or the other.
In a custody case, the government has already stepped in. I agree that the government should not step in due to the parent's ideology, but once the government is in, between parents of differing ideologies, shouldn't the court consider those ideologies? If racism is not extreme enough, how about advocacy of terrorism, or snake-handling in church, or avoidance of medical treatment?
I agree that government shouldn't be deciding what sort of religious upbringing is better or worse, but still, the circumstances dictate that you have to pick one parent or the other.
Substitute "political ideology" for "religious upbringing," and you see the problem. We have no trouble figuring out that a parent's politics, per se, should have no influence on a custody decision, even though "you have to pick one parent or the other." You just don't factor it in.
If a parent's political ideology led her to camp outside the president's ranch for months on end, a thousand miles away from the child's school, friends, and family, then that might be a legitimate factor ... but it would be the *practices* in question, and their obvious, uncontroversial effect on the child, that would factor in, not the politics.
Similarly, if the parent's religion requires her to sacrifice live puppies on her son's naked abdomen, then that might be a legitimate factor -- but not the religious beliefs per se.
We’re well into that ballpark with some of our First Amendment jurisprudence already.
Those examples involve physical danger to the child. But your point is well taken (and Steve's). It's not a matter of wether Paganism is inappropiate for a child, but which of the two options is in the child's best interest. Which the government has already been asked by the parents to decide. So maybe I knee-jerked and my previous comment doesn't really apply.
Assuming all else being equal, can the judge rule in favor of the father because he believes a christian upbringing is better? (cue the ACLU). What if it's a jewish father vs. a christian one?
Gay parents! Now that's a whole different can o' worms. Which religion treats homosexuality the worst?
I am really shocked at those here who say that subjective family court considerations trump Constitutional rights, or that parents have to forgo their Constitutional rights if they want to maintain their parental relationships with their own children after divorce.
I'm going to disagree with your well-stated objection, Anderson. It's not simply an issue of the parent's political ideology, or which religion they happen to belong to. It's a question of the overt acts they commit in the course of raising the child. There's a difference between belonging to a religion, and bringing a child up in that religion.
In this case, it wasn't simply an issue of the mother holding pagan beliefs, but of what she would be exposing the child to. In terms of the environment in which the child will grow up, these practices are obviously a huge component. Whereas whether the parent you get raised by is a Republican or a Democrat has very little tangible impact on your environment except, as you state, in extreme cases.
1. There are various laws that protect children from sexuality and the expression thereof in general. Whatever their merits, a Christian anti-sexual message is more in line with these laws than the Pagan pro-sexual message. Christian morality can be taught without discussing sex in detail. It's possible to argue that the notion that explicit details should be avoided in the presence of minors is not specifically religious.
2. It might be possible to distinguish the cases based on their proximity to a diagnosable clinical disorder. One could make an argument that sadomasochistic behavior is dangerously close to clinically psychotic, compulsive, or self-harming behavior. One could make the argument that Christianity generally does not meet that standard. What about, for example, a hypothetical case in which the parent requesting custody believed themselves to be the messiah?
3. The hypothetical case you suggest implies a hypothetical world in which Christians are a taboo minority. Worthwhile thought experiment, but counterfactual. The 'interests of the child' argument can be made purely on the grounds of majority views without expressing any judgement of those views.
4. Sadomasochism typically involves performing an action on someone else. It goes beyond speech. What about a hypothetical case where the parent requesting custody is a Christian with the (once not uncommon) belief that spiritual purification requires mortification of the flesh?
5. It could be said that in filing for custody, the parent is essentially asking the state to get involved. The standard may not be the same as the standard for what would be permissable in private life otherwise.
6. What about the parallel to miscegenation laws? It has been argued that interracial pairings are unwise because it can make things difficult for the child. Is that the same argument or different? There are a number of distinctions between discouraging racism and discouraging religion, but are they dispositive?
I'm unsure where I come down in any theoretical case. But to make the "in the mainstream/out of mainstream" argument a little more concrete, lets examine a hypo. One parent wants to raise the child in a religion that demands some outward sign be worn at all times (whether a yarmulke, girls wearing bonnets or otherwise covering their heads, the knife for Sikhs, whatever). Let's assume there is credible evidence that children who do this are typically taunted, mistreated, even beaten up in school. Does best interest of the child automatically weigh in favor of that child NOT going to the parent with religion which is outwardly observable?
What about an opposite hypo. I've heard Mormons says they look for the outline of the "garments" underneath the clothing of Mormons they meet for the first time. What if a person were in a small, mostly Mormon town in Utah or Idaho, would "best interests" require the child to go with the Mormon parents? How does the public reaction to a private issue change the scenario?
I wonder if Mormons get slapped more than other folks.
Lifestyles necessarily involve a person participating in certain practices, a tautology, I know, but one which if spelled out would have made this quote from the opinion more obvious and perhaps have limited cries of "foul!" in this case:
We may disagree as to the extent that professed sado-masochism, paganism, sexual orientation, and routine drug use will have on the "best interests" of a child. But it is untrue that the judge in this case made the ruling based on mere belief.
The Court of Appeals of Ohio also noted the link between beliefs and actions and responded to the argument that lifestyle choices should have no bearing on custody:
Indeed, people often do generally claim that Christianity does not meet the standard of psychotic behavior, but expressions of extreme religiosity and psychotic problems are highly correlated. Distinguishing "reasonable" voices in people's head of God telling people what to do ("love thy neighbor") from unreasonable (real world examples: "Invade Iraq," "kill your children," etc.) can be problematic. Once you throw rationality out the window and believe that some people hear divine voices in their heads it becomes very difficult to tell other people they psychotic for hearing similar voices.
I would also hope a judge who agreed with the mother's religious views would also ignore them when making the decision since their are also plenty of agnostics, pagans, etc. who are fine parents.
If it is realy true that "It is therefore clear to us that it is, all things being equal (or even nearly equal) parents," then 1. if they are mature enough to make the call, ask the child, 2. flip a coin, or 3. be super biblical about it and do what Solomon did when presented with two people fighting over one child.
A parent’s attitude towards homosexuality is also irrelevant because only about 3% of the population is homosexual and the parent has little control over the child’s ultimate attitude anyway. We have to learn that children are like their parents mainly because they share their parent’s genes, and not how the parents raised them.
The judge should simply rotate custody and absent a clear threat to the child’s welfare, leave them alone so the family doesn’t go bankrupt to lawyer fees.
Yes. People blow a lot of money on fancy pre-schools, argue endlessly about the content of elementary education, or spend years homeschooling based on the idea that what is said to a child actually makes some noticeable difference. Maybe you believe this is all foolishness?
Now go to bed!
Yes it is largely foolishness if you think you can really shape the ultimate personality of a child by what you say to him. One might spend money on a private school to give your child a more pleasant and safe environment in which to learn. Some schools and teachers might even be better at knowledge transmission, but you are foolish if you think a school is going to make a shy child gregarious, or an aggressive child more timid. Do you have any evidence to the contrary? The education and parenting industry has a large stake in perpetuating these myths, so I’m not surprised people believe them.
It’s very hard to do controlled and randomized experiments with human beings, but the studies on identical twins reared apart strongly suggest that most personality traits are genetically driven. Of course extreme environmental depravation will certainly have a long lasting detrimental effects. Of course if one of the twins is raised in Uganda and the other in Palo Alto, you are going to see a difference because of the extreme difference in environment and culture.
Every single lifestyle choice, drugs, smoking, drinking excessively (as long as one did not do that while driving the child), sex, you name it, all of that would be constitutionally protected. In short, every possible distinction one could make between the two parents would be based on constitutionally-protected activity.
Agreed that people have innate tendencies, which they can then be taught to direct and control, which I thought was the whole point. Let's say we accept your statement - in which cases judges should not take into account the educational plans of the competing parents when deciding custody. One parent says "move to a country where it's legal to start workin' em 18/7 at age 6" and the other says "prep school followed by college" - equally valid choices?
Of course not. I explicitly ruled out extreme differences in environment. Of course you can damage the health and intellectual development of a child, but that’s not what at issue here.
What do we gain by replacing the arbitrary and subjective judgment of a man in a black robe with the arbitrary and subjective judgment of a man in a white lab coat?
This is no way to ensure consistency.
If you go to page 372 of The Blank Slate, Pinker states the three laws of behavioral genetics. Here they are:
1. All (an exaggeration but not by much) human behavior traits are inheritable.
2. The effect of being raised in the same family is smaller than the effect of the genes.
3. A substantial portion of the variation of complex human behavioral; traits is not effected by the effects of genes or families.
Certain instances of behavior such as what language you speak, what religion you belong to, and what political party you register in are certainly culturally determined.
These conclusions are based on studying the behavior of adopted children, fraternal twins raised apart and identical twins raised apart. Read Pinker for the details.
Thus behavioral genetics tells us that the effect on behavior by family is small compared to random variation and genes. Thus I doubt that given two similar parents it would matter all that much which one becomes the primary custodian absent some extreme factor such as neglect or abuse. Does it matter whether the child becomes a Republican like his father?
In the case of a Muslim marrying a non-Muslim, we have the potential for real trouble. A court should not give custody of a girl to a Muslim father who might want his daughter to have a clitorectomy when she becomes an adolescent. If he is from the Middle East he might steal the child and take her to an Arab country where she will become a virtual prisoner. Unfortunately our compromised State Department seems unwilling to help out an American mother who finds herself in this predicament. Islam is not compatible with American values and the fewer we admit in as immigrants the better.