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.

Asher Steinberg (mail):
So is that clause of the statute unconstitutional? Because I think they're interpreting it correctly, more or less. Surely the parent who's more likely to take their kid to church is the one more likely to "continue the education and raising of the child in his or her religious creed" - assuming 'his or her religious creed' is understood as whatever religion the child has been practicing under the auspices of his parents, not necessarily a religion that the child has voluntarily chosen to practice. Now, if the child has a self-avowed interest in going to church or synagogue and one of the parents is more likely than the other to take him to services, I think that's something that courts could take into consideration without running afoul of the First Amendment, but this kid is 2.5 years old and can't possibly have a self-avowed interest in something like that.
2.15.2008 7:42pm
Bill Dyer (mail) (www):
Would you think this statute constitutional if it merely explicitly permitted "raising of the child in his or her religion or creed, if any," to be among those considered in the overall balancing of interests? Is the rest of the statute that you didn't quote very clear in requiring consideration of this factor across the board?

Do you think the phrase "if any" fails to save the statute's constitutionality? Doesn't it presume that there will be households in which there was no pre-existing value accorded to the pursuit or study of a particular religion or creed, and therefore that in those particular cases, no weight ought be accorded to a new-found (e.g., a feigned) devotion?
2.15.2008 7:52pm
Bill Dyer (mail) (www):
Do you see this statute as foreclosing a parent (let's arbitrarily say, for purposes of this example, the wife) from making the following argument:

"In our household, before the divorce, we were rational agnostics. We didn't often talk about it, but on the few occasions when we did, we agreed that our particular creed would be that we would not disrespect any religions, but neither would we choose to participate actively in any organized religion. By continuing to refrain from taking my child to church regularly, I am therefore continuing [key statutory word] the precise education and raising of my child in the creed our family followed pre-divorce."

The court finds as a matter of fact that she's correctly described the pre-divorce family situation. Is it not then obliged to treat "rational agnosticism" the same way it would treat Catholicism or Islam?

Suppose the husband says: "I've been born again since Spousy and I decided to split up, I've now found Jesus, and I now want to take Baby Benjamin here to church with me every Sunday." Wouldn't the statute -- focusing as it does on continuation -- actually require the trial court to count that against the husband's position?
2.15.2008 8:02pm
Dave N (mail):
How does Michigan factor parents with two different religious creeds--and adding to the hypothesis, the religious tension being one of the causes of the divorce?

If, say, the mother is Mormon and the father is Catholic who both attend religious services regularly (using two denominations who lay claim to religious Truth), does the court then try to determine which parent is more sincere in his or her beliefs? Or does it decide that in case of a tie to use other factors?
2.15.2008 8:03pm
Dave N (mail):
I meant "hypothetical" when I wrote "hypothesis".

Note to self, preview is your friend.
2.15.2008 8:05pm
Eugene Volokh (www):
Asher Steinberg: This very issue came up in Bonjour v. Bonjour, 592 P.2d 1233, 1239-40 (Alaska 1979), which I think got it right. The Alaska law required courts to consider "the physical, emotional, mental, Religious and social needs of the child." The Alaska Supreme Court held (paragraph breaks added):
We think it constitutionally permissible for a court to take account of the actual religious needs of a child in awarding custody to one parent or another. AS 09.55.205, insofar as it permits a court to consider the "religious needs" of a minor as an aspect of the child's "best interests," does not infringe upon constitutionally protected rights.

We stress, however, that the court must make a finding that the child has actual, not presumed, religious needs, and that one parent will be more able to satisfy those needs than the other parent. By actual religious needs, we refer to the expressed preference of a child mature enough to make a choice between a form of religion or the lack of it. A child's religious needs or preferences may enter into the custody equation in a variety of different ways.

For instance, if a court determines that a fifteen-year-old child is a devout adherent to a particular religion or is otherwise deeply religious and that one parent will provide the child greater freedom in his or her pursuit of religious enlightenment, then the court may consider this as a factor in awarding custody. In order to avoid running afoul of the establishment clause, however, the statute cannot be limited to consideration of the formal religious needs of the child. A fifteen-year-old child might conceivably have developed a profound aversion to formal religious training of any sort. If a court finds this to be the case, then in awarding custody, the court may take into account the fact that one parent has shown a greater willingness to respect the child's opposition to formal religion.

The primary goal of the court in awarding custody is to further the best interests of the child, which includes respecting the beliefs of a mature child, whether they be religious or non-religious. So long as a court makes findings as to a child's actual needs respecting religion, the court may consider such needs, as one factor, in awarding custody. In such consideration, the court, however, may not substitute its own preferences, either for or against a particular type of religious observance, but must retain a strict neutrality.

So this sort of narrow reading of the statute would be constitutional, I think (and suitable given the canon of construction that counsels reading a statute to avoid constitutional problems). But applying the statute to prefer the more religious parent rather than the less religious parent, in the absence of any evidence that the child prefers to continue in his religious upbringing (or possibly that a serious change would be disruptive for the child), would be unconstitutional.

Bill Dyer: Even if the statute preferred nonreligious parents over more religious parents, when the child had been raised nonreligiously, that would be unconstitutional, because it would pressure the more religious parent to forgo religious practice. But I've seen no evidence that Michigan courts even consider this in their decisions; the decisions I refer to just blithely assume that the more religious parent is more suitable than the less religious one, with no discussion of how religious the child's upbringing had been beforehand.
2.15.2008 8:05pm
juris_imprudent (mail):
Then there is the saga of Rachel Bevilacqua's case (Church of the SubGenius, which is now legally a performance art group vice a "real religion" - which was the point of the whole freakin joke to begin with). A few more years and her child will be 18 and I guess the whole thing is mooted.
2.15.2008 8:07pm
Cornellian (mail):
What if one parent's religious belief is that God wants you to focus on having faith, regular prayers and good works, but not on regular church attendance? Does that count for less than the more frequent church attendance of the other parent, even if this parent's religious belief is at least as sincere, and even more fervently held, than the other parent's?
2.15.2008 8:22pm
Syd (mail):
So if the parents and child were Satanists, this statue would award the child custody to the parent who was more diligent to raising the child as a Satanist.
2.15.2008 8:30pm
PGofHSM (mail) (www):
Did you see the NYTimes article about the role of religion in child custody disputes, where the claim is that the more religious parent is actually disfavored in such battles? In these examples, the couple has a kid, breaks up, Mom has physical custody and then gets religion to a non-mainstream extent -- e.g., becomes a fundamentalist who insists on long skirts or Amish and won't send the kid to high school -- and Dad protests to the court.

The case of the Amish convert was particularly interesting because once Dad succeeded in getting a court order requiring the kid to go to school, she disappeared into the Amish community. Mom won't say where she is, and Dad hasn't seen her for over 2 years. Reminded me of what supposedly happens in the UK when fundamentalist Muslims are required to send their daughters to high school -- the daughters just disappear, either into another person's household or are sent back to the parents' home country until they're of an age to marry and not be required to attend school.
2.15.2008 8:46pm
Bill Dyer (mail) (www):
You may be right that, as consistently applied, this statute is being used to give a relative privilege to people who are avidly religious as compared to those who aren't. And that may indeed be unconstitutional.

But I'm not convinced that the statute is unconstitutional on its face, across the board. I think a statute that permits a family judge to place some weight (along with other factors in a complicated, incredibly subjective matrix) on promoting continuity of faith or (as the case may be) non-faith in a child's life is not necessarily unconstitutional. To argue to the contrary -- which I'm not sure whether you're doing, Prof. V -- requires one to read the First Amendment in a way that requires governments to penalize those families whose values include religious belief by ignoring those values.
2.15.2008 8:57pm
Jeremy Pierce (mail) (www):
It seems to me that the constitutional clause is referring to something different from what the courts are doing here. It's talking about what people might otherwise be entitled to, but when there's a dispute about who is entitled to what (as in custody cases), you can't assume entitlement to children. If the issue is what is best for the child rather than what parents are entitled to, then making a decision based on the parents' religious views doesn't seem to be a violation of any rights or privileges, since it's not about rights or privileges. It only becomes that as logical consequence of the decision in terms of the child's best interest.
2.15.2008 10:07pm
Richard Aubrey (mail):
Seems to me, following Jeremy--I think--that the statute refers to the civil rights of...who? Got to be the parents.
So, for this to be illegitimate, the parents must be assumed to have a civil right to adopt which supercedes the supposed best interests of the child.
Show that the parents have a civil right to adopt.

Or, it doesn't apply.
2.15.2008 11:15pm
one of many:

the staute (as written) has nothing to do with civil rights of the parents, it deals with a child's right to practice a child's chosen religion. EVs argument introduces a parental civil right to practice or not practice religion. Without more than the one case presented, which doesn't provide a hole lot of information, it is difficult to decide if the statute (as construed by the courts) raise the problems EV envisions.
2.15.2008 11:45pm
one of many:
hole = whole, in the 11:45 post.

More information would help (or possibly hinder) EVs argument about coerction of parents to attend church in order to obtain custody of minor children. In the Kik case the appeals court decision is silent on the question of whether the child as developed a religous creed, if the original court ( not sure if it is actually a court in Michigan but if not I am sure the Master or whatever will forgive the error) made an inquiry and determined that the child had a creed which was benefited by church attendance then Kik in no way supports the coerction argument, if the original court merely presumed with no basis the existence of such a creed it would support the coercion argument. It would be interesting to see how a court would weigh the issue in the case of a non-religous parent and a religous child versus a religous parent who was less able to accomodate the child's practice of religion, if assesed properly this (sub)factor should be weighed in favor of the non-religous parent and the coercion argument is a non-issue.
2.16.2008 12:09am
Bill Dyer (mail) (www):
one of many (11:45pm above): You are badly wrong. Yes, the entire basis of family law is promoting the "best interests" of the child, but because it is a child, it is presumed -- sometimes rebuttably, sometimes conclusively -- to have no free will of its own. For the most part, the child's "best interests" are defined not in terms of what the child wants or says or declares -- being legally "immature," its own wants and saying and declarations are, at the very best, mildly evidentiary and never conclusive.

Rather, the system, as practiced virtually universally in all American states, is that state law will inform the family court fact-finder/chancellor (embodied in the trial judge), who then (almost universally shielded from close appellate review by an "abuse of discretion" standard) declares what is, quote-unquote, "objectively" in the "best interest of the child."

As I understand him, Prof. V is here objecting to a common practice which is perhaps (or perhaps not) suggested (or perhaps, or perhaps not, compelled) by a statute that seems to be designed to tilt the playing field -- to give an automatic preference to a parent who can demonstrate an adherence to a religious faith, some faith, whatever faith, as opposed to being simply unmoved by any faith whatsoever.

Prof. V doesn't challenge -- if I understand him correctly -- the underlying premise, which is that the "best interest of the child" can be statutorily defined by reference to a parent's (or both parents') preferences and practices.

I'm left wondering if the First Amendment permits a state legislature to say: We want to encourage parents to believe in something. The "something" in which they believe can be a well-considered and rational system even of agnosticism, and certainly one of atheism. But we think it's better to encourage parents who are committed to something by giving them preference in child custody decisions over the drooling slackers who've never even thought about these issues.

I'm inclined to think that the First Amendment would permit that. I don't know where Prof. V comes out, though, or if he accepts this as a relevant question.
2.16.2008 1:02am
Children are not objects, they are human beings. The word "custody" should be used for inanimate objects, not human beings. As a matter of good policy, and not necessarily current governing legislation, rather than "awarding custody," legal decisions of this sort should say something like "the child will spend time with the parents according to the following schedule:..."
2.16.2008 1:02am
Bill Dyer (mail) (www):
Were I in academics, I'd go ahead and copyright that: ©2008 William J. Dyer, "The Drooling Slackers' Dilemma and Religious Implications for the Best Interests of the Child." It'd make a decent law review article title.
2.16.2008 1:05am
Bill Dyer (mail) (www):
eyesay: The Yale Law Clinic has agreed to represent your seven year old daughter, pro se, in its civil complaint under 28 U.S.C. § 1983 for abridgment of her civil rights because you sent her to bed without supper last night. Enjoy.
2.16.2008 1:08am
Bill Dyer (mail) (www):
Ooops, "pro bono," not "pro se" (unless your daughter is very precocious and is already at Yale).
2.16.2008 1:09am
Bill Dyer: I expect the court to consider the best interests of the child. Statements by the child about his or her own preferences may be granted some weight among other evidence.
2.16.2008 1:34am
Some_3L (mail):

Every person shall be at liberty to worship God according to the dictates of his own conscience. No person shall be compelled to attend ...

Well, now, children aren't persons so don't get carried away. The supreme court settled that in 1973.
2.16.2008 3:52am
one of many:
Bill, I am extremely skeptical of allowing the state the power, if it somehow magically has the ability, what religous belief is in the best interest of anyone, much less a child. If a child is incapable of determining which religous belief (or non-belief)is in it's best interest, the state is no more capable. While certain religous practices are arguably under the state's purview with regards to a child's best interest (I would argue that female genital mutilation causes a potential permanent physical harm which outweighs any temporary spiritual harm caused by putting it off until the child reaches adulthood for example), we cannot ascribe to the state of Michigan the ultimate knowledge of which religous beliefs are in anyone's best interest, and there is no indication that Michigan is asserting that knowledge. If a child has somehow acquired a religous creed, the law in Michigan (as written, don't know about as practiced) has deemed that, with regards to a custody dispute, the parent most able to accomodate that creed is given favortism in deciding custody; if a child has a religous belief, it is in the better interest (cannot use best since it is only one minor factor in determing the best interest) of the child to have the greater opportunty to exercise that belief.

The question is how the statute, which makes no reference to the religous beliefs or practices of the parent, might, as applied by the court system, compell parents in custody disputes to adhere to a religous creed they would not otherwise do so. It might also be argued, although not eaarlier done so, that the statute could encourage religous parents (or even non-religous parents who are willing to fake religousity) to force religon on children to gain an advantage in child custody cases.

The Kik case as presented, mentions one parent being more religous than the other, but from what is presented we cannot determine if the original court considered that directly as a factor in deciding the more religous parent worthy of favorable consideration or if the fact of on parent being more religous was only incidental to a decision that the child had more capacity to indulge the child's religon of choice with the more religous parent.

AS an interestng extenson, if the statute as applied does not favor religous parents over non-religous parents, would a perception that the courts apply favortism to religous parents raise the same freedom of religon question?
2.16.2008 3:57am
Children are not objects, they are human beings. The word "custody" should be used for inanimate objects, not human beings.
You know, I said that a lot as a child and it didn't get me very far. I still believe it as a 20-something but nobody takes me seriously. When I have children of my own and I raise them as independent, however, I'm certain the lots of people will chip in and tell me I'm raising a little bastard. Serve 'em right.
2.16.2008 4:00am
one of many:
Children are not objects, they are human beings. The word "custody" should be used for inanimate objects, not human beings.

I dunno, what other word would you use for children besides custody? it means you have possesion without ownership. it has strong connotations of a duty to maintain, and lesser connotations of a duty to improve. it certainly indicates a much stronger obligation than "person the child is spending time with currently". perhaps there is better word in english, but i'd feel a lot more obliged to cleaning up after and feeding a child i am the costodian to than one which i am "the person the child is spending time with currently" to.
2.16.2008 4:48am
TruePath (mail) (www):
I don't see how the fact that a law favoring continuity of religious upbringing puts any unconstitutional pressure on the parents. Sure it does favor the parent whose faith remains most similar to that agreed upon by the parents for raising the child but in doing so it only enforces an obligation that is freely entered into by the parents.

I don't see how this differs from your posts on Sharia law. If people choose to enter into a marriage agreement that requires certain religious practices then the courts can enforce (somewhat) that agreement. In this case all that has happened is that the law has decided to view mutual decisions about child rearing as binding commitments.
2.16.2008 5:39am
Anderson (mail):
Mississippi does the same thing as Michigan, &AFAIK it hasn't been expressly challenged yet, unfortunately.

I suspect that raising an "ACLU"-style objection of this sort might not be in the best interests of the would-be custodial parent, in our state's courts. So that may be a structural reason why it won't get challenged any time soon. I sure as heck would make my church attendance much more regular, beginning the Sunday after deciding to divorce, if I wanted custody of my kids.
2.16.2008 8:15am
Frog Leg (mail):
EV, you may have a good understanding of constitutional law, but you're forgetting basic civil procedure. A court typically will not raise the constitutionality issue sua sponte. It is up to the litigants to challenge it, and as far as I know, no litigant has done so.
2.16.2008 9:43am
Sean M:
Read narrowly, the statute can be seen as favoring a /continuity/ of religious instruction, thus sending the child's life as little upside down as possible.

But I don't think that's what the outcome is in Michigan courts.

As someone said upthread, if I wanted custody of my child, I'd start going to Church much more regularly after I decided to divorce.
2.16.2008 10:26am
Public_Defender (mail):
One annoying thing about the opinion is that it names the kid. In cases involving minors, courts should do what is needed to protect the identities of minors in documents published on the Internet. This small child should not have the details of her relationship with her parents posted on the Internet.
2.16.2008 11:08am
Frog Leg (mail):
Public Defender, what you say is true, but Michigan courts never protect the kids' names. It's wrong, but about par for the course for Michigan courts.
2.16.2008 11:20am
JackP (mail):
The court needs to do what is in the child's best interests. If this happens to be unconstitutional, the court still needs to do what is in the child's best interests.
2.16.2008 11:23am
Roger Schlafly (www):
The example of a religious preference just shows how unworkable the "Best Interest Of The Child" standard is. If a judge cannot take religion into account, then how can it consider the dozens of more trivial issues that are said to be in the child's interests?

The only solution is for the family courts to get out of the business of second-guessing parents and micromanaging the upbringing of kids.
2.16.2008 11:42am
Roger Schlafly: Can you elaborate on the "only solution"? If both divorced parents want custody of their kid, who is to say who gets it? Of course, if no-fault-divorce wasn't allowed, then we wouldn't have this problem in the first place...
2.16.2008 4:22pm
Roger Schlafly (www):
If both divorced parents want custody of their kid, who is to say who gets it?
In many areas now, divorcing parents get 50-50 custody of the kids. That can result in kids going to different churches on alternate Sundays, which might not seem optimal, but it is better than the court dictating a choice.

There are many other choices that parents make, and it is nearly always better to let the parents make those choices, than to try to get a court to make the choices.
2.16.2008 6:10pm
Apparently that supposedly meaningless language in the Northwest Ordinance ("Religion, morality, and knowledge...") means something after all.
2.16.2008 7:30pm
Asher Steinberg (mail):
Bill, of course the statute isn't unconstitutional on its face, because it could be construed to mean that, if a child does have an actual religious preference, the family courts should favor, all things being equal, the parent more likely to facilitate this preference. And that's fine But, if "his or her religion, or creed" is defined as whatever religion the parents have brought the child up in, regardless of the child's actual preference, then the statute is just giving a preference to more religious parents. Now, you suggest that it would be okay if the statute gave a preference to parents who "believe in something," even atheism, over ones who have never "even thought about these issues" (what issues are those, exactly - where people go when they die?). Such a regulation just might be permissible, but I find it bizarre, probably unadministrable, and I'm not sure what legitimate state purpose it would serve. It's bad enough that courts consider which parent is more religious; you'd apparently have them investigating which parent's religious system is more thought out. How is that necessarily in anyone's best interests? Say Tom Cruise and his wife get divorced; should a family court favor Tom and his very well thought-out Scientologist beliefs* over Katie, who, we'll suppose for the sake of the hypothetical, is one of those drooling slackers who's never even thought about these issues?

2.17.2008 4:08am
William Oliver (mail) (www):
I think you are ignoring a basic issue. The medical literature is actually very substantial in indicating that certain types of religiosity are associated with longer, healthier, and happier lives. An argument can be made that it is not God, per se, that provides these benefits, but instead the psychological and social support that being part of a religious community provides, as well as a tendency towards healthier lifestyles.

Thus, if a judge is actually going to consider things that will make a child a healther, happier person with a longer life, then why should he or she be obligated to ignore exactly those factors?

Moreover, the literature does not, in general favor any particular faith -- though I don't think there has been any studies of outre cults compared to mainstream religions. Thus, if the judgement is simply one of what will provide for these benefits and not in favor of any faith -- and thus not the establishment of any faith -- then how is it the "establishment" of a particular religion?
2.18.2008 12:22am
Ken Arromdee:
Thus, if a judge is actually going to consider things that will make a child a healther, happier person with a longer life, then why should he or she be obligated to ignore exactly those factors?

The happiest person possible is one who's been doped with happiness-inducing drugs forever.

A good portion of us, if asked if we'd want to be doped with happiness-causing drugs for the rest of our lives, would answer "no". If you're trying to maximize happiness, the answer is "yes"--but a lot of people just aren't utilitarians on this subject. We value knowing the truth and understanding the world, even if it's unpleasant, over happiness.

Likewise, a non-religious person may admit that religious people are happier, but think that religion is probably false, and prefer a less pleasant truth to a more pleasant falsehood. The judge, of course, has no business deciding that families or children must be strict utilitarians.

(This also ignores the possibility that part of the reason believers are happier is the stigma against unbelievers. Placing the child based on that would be like placing the child with a parent who isn't having an interracial relationship on the grounds that people are generally happier in single-race families--such a factor should not be considered even if it's tru.)
2.18.2008 1:38am
William Oliver (mail) (www):
Actually, the "happiness" part is the lesser of the effects. I can understand why you would want to denigrate it the most, but you ignore the more important issues, even from a secular perspective.

Certainly, multiple studies have shown that intrinsic (but not extrinsic) religiosity is associated with lower levels of depression and anxiety. Among adolescents, active religious involvement is associated with lower levels of drug use, premarital sex, depression, and lower suicide risk. Multiple studies have shown that religious involvement is associated with better coping in poor health, particularly with HIV infection.

Leaving "happiness" alone, however, active religious involvement is associated with lower blood pressure,lowered risk of heart disease, and lowered risk of cancer. It is associated with increased survival in leukemia.

More impressive, however, is the relationship between church attendance and mortality. A study of 21000 adults found a 19 times higher mortality amont adults who never attended church compared to those who attended more than once a week. In another study, regular church attendance was associated with an 8-year longer life expectancy comparing regular attendance with non-attendance. This was particularly true in African-Americans, where it was assicated with a 13.8-year life extension. In one metanaysis of 125,000 people, regular church attendance was associated with a 25% decrease in mortality at followup, with the most impressive effect being on mortality from cardiovascular disease.

Don't want any of these benefits for our kids! No, sir.
2.18.2008 7:54am
Duncan Frissell (mail):
Since weekly church attendance extends average longevity by seven years and smoking reduces average longevity by seven years, perhaps the courts should only favor the more religious parent in cases where both parents smoke.

Child custody is so complicated.
2.18.2008 8:18am
A couple of thoughts;
First, folks are focusing on the age of the child and the fact that at 2.5 they can't have a well thought out religious preference. But, I don't think this is dispositve. If the child is used to going to church 2X a week, and seeing all the same people, including peers that he becomes used to interacting with, disrupting that will usually not be in the child's best interest. Not a hard and fast rule, but definitely the majority of the cases. And I say that as an agnostic who hasn't regularly attened church in 15 + years, and hasn't been to a service in well over a year.

Roger Schlafly,
I agree with you that generally letting the parents agree is the best bet. And most courts will go with what parents agree to. The problem is, many divorced couples can only agree to fight about everything.
2.18.2008 4:24pm
Richard Aubrey (mail):

Precisely. And Michigan is in what used to be called The Northwest, later "the Old Northwest", to which the Northwest Ordinance applies.

I believe that, toward the close of the Civil War, Lincoln made a moving speech and referred to "the Old Northwest", its harvests and its soldiers.
2.19.2008 11:48am
travis (www):
i think you have to look at the tension between the free exercise clause and the establishment clause with respect to michigan's best-interest statute. when the demands of free exercise come into play, i think it is a harder case.

the wording of the statute is important:

continue the education and raising of the child in his or her religion or creed, if any

on its face, the statute does not prefer religion over non-religion except when it comes to the child's free exercise rights.

first, the word "continue." if the child was not raised in a religion during the parents' marriage, by definition, this status is not "continued" by a parent who becomes religious at the time of the divorce.

second, the limitation, "if any". again, if the child is not practicing a religion, or has not been raised in a religion, there is no preference for religion in the decision. a divorcee cannot suddenly have a religious awakening in order to get custody.

some children may choose to follow a religion. yet until they reach majority age or move out, their guardian may prevent them from practicing that religion. if the state regularly puts children into situations where a controlling parent is hostile to their religious beliefs, this could raise a free exercise question.

it would not be analogous to a case where a believer is asking the state to allow her to practice polygamy, or to handle snakes or use a controlled substance. neither is it a case where the government only gives weight to religious reasons. the best-interests statute requires consideration of secular factors like love, affection, and guidance. to allow consideration of secular but not religious factors would be suspect our free exercise jurisprudence.

the free exercise clause (and the michigan best interest statute) merely ask that the ability of a child to practice her religion be a factor in the custody decision.

but, obviously, in a case involving a 2.5 year-old, this application is weaker than in a case involving, say, a teenager.
2.19.2008 4:28pm
travis (www):

*neither is it a case where the government only gives weight to religious reasons [in making accommodations].

*to allow consideration of secular but not religious factors would be suspect [under] our free exercise jurisprudence.
2.19.2008 4:32pm