From what is otherwise a pretty standard "best interests of the child" analysis in a child custody case, Foster v. Waterman, 2007 WL 2119125 (Iowa App. July 25):

Harold argues that Anjela [who is now age 7 -EV] is a child of one-fourth of Korean heritage and it is important for her to be allowed maximum involvement with her heritage. He contends that Anjela's paternal grandmother, Song, is a Korean and she can expose Anjela to Korean cultures. We recognize the importance of Angela's ethnic heritage. However, Casey is very supportive to Anjela's relationship with Song and her interests in Korean cultures. At the time of trial, Casey was planning to enroll Anjela in martial arts instruction. She also rehearsed Korean language with Anjela. In addition, the areas where Casey and Harold live have approximately the same amount of diversity. We believe Anjela would have sufficient opportunities to be involved with her ethnic heritage under Casey's care.

Seems to me that courts have no business deciding, whether in a child custody case or elsewhere, how much and what sort of a connection a child should have "with her ethnic heritage." Some parents want their children to be closely connected to the culture of the child's ancestors (or of some of the child's ancestors). Others don't much care, because they reject the notion of bonds with ancestral ethnic groups; or they may even want to deliberately sever a link with a culture of which they disapprove. A court ought to remain agnostic between these approaches.

There may be some rare exceptions to this principle (though I'm not positive even about these): Perhaps in some situations there might be some serious evidence that one parent's approach to the child's racial background is against a child's best interests, for instance if a child who looks very different from other children is having serious social troubles as a result, but one of the parents isn't doing anything to try to deal with that. If an older child has herself developed some emotional connection with her ethnic background, and wants to continue that connection, a court might count in a parent's favor that parent's willingness to accommodate the child's preferences. And it may well be in a child's best interests to learn a foreign language, though learning Spanish (even in Iowa) is probably more in the child's interests than learning Korean.

But in general, a court shouldn't take the view that the ethnically quarter-Korean (or for that matter that the full-blooded Korean) should get more (or less) in touch with her heritage, or should live in a more (or less) "divers[e]" neighborhood. And it's just zany for a court to view a parent's willingness to enroll the quarter-Korean child in a martial arts class as remotely relevant to the child's best interests.

I quoted and criticize below an Iowa appellate decision that said (paragrpah break added):

Harold argues that Anjela [who is now age 7 -EV] is a child of one-fourth of Korean heritage and it is important for her to be allowed maximum involvement with her heritage. He contends that Anjela's paternal grandmother, Song, is a Korean and she can expose Anjela to Korean cultures. We recognize the importance of Angela's ethnic heritage.

However, Casey is very supportive to Anjela's relationship with Song and her interests in Korean cultures. At the time of trial, Casey was planning to enroll Anjela in martial arts instruction. She also rehearsed Korean language with Anjela. In addition, the areas where Casey and Harold live have approximately the same amount of diversity. We believe Anjela would have sufficient opportunities to be involved with her ethnic heritage under Casey's care.

My view is that courts ought not take the view that children with some Korean blood ought to be taught Korean culture, or ought to live in places that have "diversity." These factors should not be considered in the best interests of the child analysis, absent extraordinary circumstances (which I briefly discussed in the original post).

Some commenters criticized my criticism, reasoning along these lines: "My reading of the opinion is that the parties argued the issue of being able to expose the child to her ethnic background (including martial arts instruction) and the court simply referred to these arguments in a summary fashion. I strongly doubt the court would have included that reference in its opinion if the parties hadn't made it an issue in their briefs and/or oral arguments." "Everyone is over-reacting. This would be a different matter altogether if the Court's ruling actually had been based on the heritage factor. But it wasn't. The trial court just used a factual finding (i.e., both sides would help foster Korean heritage) to neutralize an argument raised by the losing side (i.e., Korean heritage must be fostered). The bottom line is that the 'heritage' argument failed on its facts, thus rendering moot any discussion of its legal significance."

I agree that courts are often guided by what the parties argue. But it seems to me that if a court discusses a particular fact, it implicitly suggests that the fact is legally relevant, and that the case might have come out differently — not would surely have come out differently, but might have come out differently — had this fact been absent. And if it would be improper (or even unconstitutional) for a court to make such a fact relevant, then the court should be careful not to recite the fact in way that suggests that the fact is relevant.

Consider two analogous passages from hypothetical Iowa Court of Appeals opinions. First:

Harold argues that Anjela is an American and it is important for her to be taught a maximum of patriotic values. He contends that Anjela's paternal grandmother, Song, is a patriot and can expose Anjela to the glory of American greatness. We recognize the importance of Angela's patriotic upbringing.

However, Casey is very supportive to Anjela's relationship with Song and Anjela's patriotic education. At the time of trial, Casey was planning to enroll Anjela in the local Daughters of the American Revolution children's education classes. In addition, the areas where Casey and Harold live have approximately the same amount of strong pro-American feeling. We believe Anjela would have sufficient opportunities to learn patriotism under Casey's care.

Second:

Harold argues that Anjela is a grandchild of Christians and it is important for her to be raised Christian. He contends that Anjela's paternal grandmother, Song, is a Christian and she can expose Anjela to Christianity. We recognize the importance of Angela's being raised in the faith of her ancestors.

However, Casey is very supportive to Anjela's relationship with Song and her interest in Christianity. At the time of trial, Casey was planning to take Anjela to church often. In addition, the areas where Casey and Harold live have approximately the same amount of Christian population. We believe Anjela would have sufficient opportunities to be involved with her religious heritage under Casey's care.

I take it that we'd treat these hypothetical decisions as strongly suggesting that a parent's lack of patriotism and lack of willingness to raise a child Christian (or at least to raise a child in the child's ancestors' religion) would count against the parent in the custody decision. In this particular case, the parent avoided this by being suitably patriotic and suitably open to raising the child Christian. But we'd read this opinion as strongly suggesting that in another case, a parent might lose custody from being insufficiently patriotic or insufficiently willing to raise the child in the right religion.

If you were a lawyer who saw a court decision like this, would you advise your client, "Oh, never mind, if you're raising your child not to value patriotism [or religiosity], and your ex-spouse argues that this is against the child's best interests, a local court would just ignore that. Sure, in this decision the court mentioned these factors, but only in a summary fashion, and only to rebut one side's argument. If Casey hadn't been raising Anjela patriotic or Christian, the court would still have ruled for Casey, and dismissed Harold's arguments as irrelevant."?

Or would you believe that you should say, "It's hard to tell for sure, but it looks like this court thinks that whether a parent is giving the child a patriotic [or religious] upbringing is potentially relevant. After all, it did discuss these facts, rather than just dismissing Harold's arguments as irrelevant; and it ruled for Casey on the grounds that she was teaching the child patriotism [or religion], rather than on the grounds that it doesn't matter whether she was teaching the child this way. So if you want to improve your chances of keeping custody, you'd best show a willingness to teach the child patriotism [or religion]."?

I would say the latter: The court's decision would signal to me that there's a substantial likelihood that a court would prefer parents who are providing patriotic or religious upbringings over those who aren't. And if I'm right, then the same should be said about the real Iowa Court of Appeals decision that I quoted at the start of this post.

One could still argue that it's proper for the court to suggest that parents who teach their quarter-Korean children about their Korean "ethnic heritage" should be preferred (all else being equal) over those who don't want to teach their children this way, though I disagree (for reasons I mentioned in the earlier post). But I don't think the court's discussion can be dismissed as a merely passing reference to the parties' arguments, with no suggestion about the way the court might rule in future cases.

Many comments on the recent child custody thread point out that judges are supposed to decide based on the best interests of the child, and that they may therefore evaluate parents' childrearing decisions in ways that government officials normally don't. And I agree that this is in considerable measure true.

But there should remain, I think, constitutional limits on what judges can do. The Supreme Court's 1984 Palmore v. Sidoti decision is an excellent example: The Equal Protection Clause bars a judge from granting custody to one parent instead of another based on the other parent's having entered into an interracial relationship (or marriage). And this is so even if the judge sincerely (and perhaps even reasonably) believes that a child might face more social problems if the child is reared in a mixed-race family.

Likewise, many state courts have held that judges can't restrict a visiting parent's exposing his children to his own religion, even when the custodial parent is teaching a different religion, at least in the absence of a showing of likely serious harm to the child. A judge may theorize, perhaps even plausibly so, that it's better for children to learn one religion rather than two rival ones. But he can't implement his theory through an order restricting one parent's teachings, since that would violate the Free Exercise Clause.

Several state courts have similarly held that judges can't hold a parent's lack of religion against him in a child custody proceeding -- again, even if the judge sincerely believes that it's in a child's best interests to grow up in a more religious home. The Establishment Clause bars such preferences.

It seems to me these courts are quite right. Indeed, a parent's Due Process Clause right to have custody of the child may have to give way in divorce cases, since both parents can't live apart and at the same time live together full time with the children, and since even joint legal decisionmaking for the child may be impossible when the parents are unable to get along; but this reason for restricting parental rights generally doesn't justify restrictions on Equal Protection Clause, Free Exercise Clause, Establishment Clause, and Free Speech Clause constraints on the government.

Likewise, perhaps even these constitutional constraints must give way when genuinely necessary to prevent likely serious harm to the child, on a sort of "compelling government interest" rationale; I'm skeptical of that in many instances (see my Parent-Child Speech and Child Custody Speech Restrictions, 81 NYU L. Rev. 631 (2006)), but I see the force of the argument. But I don't think that a simple desire to serve the child's best interests slightly better (in the family judge's view) justifies departing from the constitutional constraints.

That's why I'm so troubled when some family courts do prefer the more religious or churchgoing parent over the less religious or churchgoing parent, in my view a blatant violation of the Establishment Clause. That's why I'm troubled when some family courts restrict parents' teaching their children various disfavored ideologies, whether racism, Communism, support for the propriety of homosexuality, hostility to homosexuality, support for the propriety of polygamy, Wiccanism, and so on. And that's why I'm troubled when family courts suggest that parents could be penalized because they don't teach their one-quarter Korean children things that all-white children needn't be taught, or because they don't live in sufficiently "divers[e]" neighborhoods.

A family court judge necessarily has broad power over children's (and therefore parents') lives. It doesn't follow, though, that this power should be entirely free of the Equal Protection Clause, Establishment Clause, Free Exercise Clause, or the Free Speech Clause.

From the trial court's judgment giving the father custody (a decision upheld on appeal), Dexter v. Dexter, no. 2005 DR 0110 (Ct. Com. Pl. Portage County, Ohio May 1, 2006), aff'd, 2007 WL 1532084 (Ohio App. May 25):

[Mother] has undertaken to engage in a lifestyle that is extreme by normal social standards and [mother] testified that she is a devotee of sado-masochism; that she is bisexual; that she engages in paganism; that she has used illicit drugs on a semi-regular basis; and that she spends a great deal of time online where she has two to four websites of so-called "blogs." The evidence also indicates that her fiance ... also engages in sado-masochism, and in the past produced and starred in a theater troupe depicting such activity while also engaging in such conduct in his private life with [mother]....

[M]other and her boyfriend have a perfect right to engage in sado-masochism, paganism and their chosen sexual orientation, but nevertheless, this Court is not convinced that [they] would exercise the due diligence that is required to engage in those practices without exposing such lifestyle to the parties' child[ and thus] adversely affect[ing]the best interests of [the child, a 4-year-old girl].

The father may indeed have been a more suitable parent on some grounds, for instance if the mother and her fiance indeed used illegal drugs (though note that the drug use is listed as just one item among many, including the paganism), or if the mother's online time materially affected the time she spent with her daughter (though I assume that if the mother's problem was that she left her daughter unattended, for instance, the court would have said that rather than just pointing to her "spend[ing] a great deal of time online"). But the reference to mother's paganism — and the view that pagans may be denied custody because their open practices risk "exposing such lifestyle to [their] child[ren]" — strikes me as a clear First Amendment violation.

It seems to me that her bisexuality should likewise be none of the court's business; nor should her sado-masochism, unless there's some specific evidence that the practices are physically harmful to her and thus indirectly to the child (evidence that judgment, the magistrate's findings, and the appeals court decision never even hinted at). Likewise, reliance on the fiance's theater performances seem to me barred by the Free Speech Clause. Still, even if we set the sexual practices aside, perhaps on the theory that Lawrence v. Texas provides only modest protection for sexual autonomy (a hotly debated question), the First Amendment bars a court from relying even in part on the mother's pagan religious beliefs or open participation in pagan religious rituals (except insofar as some specific conduct during those rituals endangers the child or perhaps the parent, something there's no evidence of here).

For more on courts restricting pagan practices (there, Wiccan practices), see this post and the Decree of Dissolution of Marriage, Jones v. Jones, No. 49D01-0305-DR-00898, at 4 (Feb. 13, 2004) (directing both parents "to take such steps as are needed to shelter [the child] from involvement and observation of these non-mainstream religious beliefs and rituals"), rev'd, 832 N.E.2d 1057, 1061 (Ind. Ct. App. 2005). For information on courts discriminating against parents who are less religious and less observant than their ex-spouses, see this post. For more on the general issue of child custody decisions that restrict parents' speech, or that count parents' speech and religious belief against them, see my Parent-Child Speech and Child Custody Speech Restrictions, 81 NYU L. Rev. 631 (2006).

UPDATE: I should have also quoted the appellate decision, which does flag the possible impropriety of relying on religion and the like, but which also suggests that considering religion as a factor is permissible. Here is the relevant excerpt:

In this case, appellant admitted, both in her testimony and through her writings in on-line blogs, that she practiced sado-masochism, was a bisexual and a pagan. Her boyfriend corroborated these practices and beliefs....

The fact that the trial court considered appellant's personal choices and expressed concern over these choices does not warrant reversal under the circumstances of this case where the court's decision was based on consideration of other relevant factors. Therefore, even if we were to find that the court improperly considered some of the evidence regarding appellant's lifestyle choices, we are unwilling to find an abuse of discretion where there are a number of other findings that support the trial court's decision and where the court considered several other factors in making its custody determination.

In urging reversal, appellant contends that this case is analogous to [Pater v. Pater (1992), 63 Ohio St.3d 393]. However, in Pater, the trial court's award of custody to the father was based solely on the fact that the mother was a Jehovah's Witness. Thus, she was denied custody because of her religious affiliation. Both parents were deemed equally competent to care for their child and there was no other evidence finding in favor of the father. The Supreme Court of Ohio reversed the trial court's decision, finding that it was grounded in religious bias. Here, the facts are distinguishable. Unlike Pater, the trial court's decision was not based entirely on its biases or beliefs regarding appellant's personal choices. Rather, the decision was made after the court considered other relevant factors that supported its determination that it was in the best interest of the child that appellee be named the custodial parent. Appellant's reliance on Pater is therefore misplaced.

It seems to me wrong to allow courts to rely even in part on a parent's religion -- at least absent some specific finding that the religion poses a serious imminent risk to the child -- and wrong also just to assume that, even if the reliance on religion was wrong, the result would have been the same without such reliance (at least where the lower court opinion reveals that the court took the religion factor pretty seriously, rather than just mentioning it in passing). The better view, I think, is that expressed in Bonjour v. Bonjour, 592 P.2d 1233 (Alaska 1979) (paragraph break added):

The case must therefore be remanded for a new determination of the custody issue without regard to the religious affiliations of [the parents]. [Footnote:] It is of no avail to argue ... that since finding number 5 [concerning the family environment] alone would support the award of custody to Randall, the inclusion of finding number 4 [concering religion] should not compel this court to remand the case.

The demand for legal precision is at its greatest when fundamental rights are at stake. The trial court's findings delineate only two grounds supporting an award of custody to Randall. Thus, while finding number 5, concerning the family environment, is a factor which clearly may be relied on in making a custody determination, we cannot be certain that the trial court's decision would have been the same in the absence of its reliance on the religious affiliations of the parties.

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].

Many defenses of child custody decisions based on parents' speech and religion acknowledge that parents in intact families have broad rights to speak to their children free of government restraint (see PDF pages 43-53 of this article), but argue that in split families this is different. I think this is wrong, as I argued at length in my NYU article; but I thought I'd excerpt some of my arguments here, in a somewhat abridged form.

1. Surrender of Parental Rights: Some argue that parents in split families lose some of their constitutional rights: "In matters of custody, the family unit has already been dissolved, and that dissolution is accompanied by a weakening of the shield constructed against state intervention. A parent cannot flaunt the banner of religious freedom and family sanctity when he himself has abrogated that unity."

Each parent's right to live with a child, and to control the child's upbringing, must indeed yield in some measure when the parents split up. The child can't physically be in two separate households at once; and if the parents are hostile enough to each other, they can't make joint decisions about the child's life.

But it doesn't follow that parents' First Amendment rights must likewise yield. Parents' individual rights to speak to their children (and to practice their religions by speaking to them) can still be fully exercised after the parents break up. The parent may no longer be able to rely on the sanctity of the family as a unit, but he may rely on the sanctity of his own constitutional rights. The government must intervene to some extent when a family breaks up, but there's no inherent reason that it must intervene in the parents' speech.

Nor has the parent's conduct somehow waived the right. First, child custody speech restrictions may be imposed on a parent even when the family's unity was abrogated by the other parent: The law here doesn't distinguish the leaving parent from the one who gets left.

Second, even when a parent seeks the divorce, it hardly follows that the government may require the parent to waive his constitutional rights as a condition of getting that divorce. That's true for First Amendment rights generally (or for that matter Fourth Amendment or other rights); it's presumptively equally true for First Amendment rights to speak to one's children.

2. Best Interests Above All: Child custody speech restrictions also can't be justified simply by arguing that protecting a child's best interests is so important that it trumps any First Amendment rights.

Parent-child speech is protected in intact families even when it may undermine the child's best interests. And this is so even though parental teaching of bad ideologies in intact families can sometimes be more harmful than the same speech in split families: If the parents are divorced, one parent might counteract whatever harmful ideology the other parent is teaching, or at least each parent's authority might be decreased because the parent has less time with the child. But if the parents are still together, they're more likely to teach the child the same message; the child will be even more within their ideological control; and the child's best interests would be even more hurt by the bad teachings.

Thus, proponents of child custody speech restrictions must say something more: They need to explain why the same interest that is inadequate to restrict speech in intact families becomes adequate when the family is split.

3. Need to Decide Accurately: One possible "something more" is that in split families, the judge has been called in, and some custody decision must be made. The court should therefore make the most accurate decision it can, the argument would go, by considering all the relevant evidence, including the parent's likely future speech.

A commenter responding to my hypo in which a judge denied a parent custody because the parent's teaching of traditionalist Christianity was against the child's best interests suggested that the hypo was implausible, because Christian beliefs are so widespread in the America. Well, it was meant to be pretty extreme, though I suspect that in a few jurisdictions traditionalist Christian beliefs about sexual morality are in the minority.

But let me remind people of this story from 2003 and 2004, though one that arose in the special case of a parent's Christian teachings being implicitly critical of the other parent. First, the original news story from November 2003:

A Christian mother is appealing a judge's decision that prohibits her from teaching her daughter that homosexuality is wrong.

Cheryl Clark, who left a lesbian relationship in 2000 after converting to Christianity, was ordered by Denver County Circuit Judge John Coughlin to "make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic." ...

Now, an excerpt from the July 2004 appellate opinion reversing the order, but leaving open the possibility that it could be reimposed:

"While [c]ourts are precluded by the free exercise of religion clause from weighing the comparative merits of the religious tenets of the various faiths or basing [their] custody decisions solely on religious considerations, the family is not beyond regulation in the public interest as against a claim of religious liberty, and neither the rights of religion nor rights of parenthood are beyond limitation." Thus, evidence of beliefs or practices which are reasonably likely to cause present or future harm to the child is admissible in a custody proceeding.

When parental responsibilities have been determined, § 14-10-130(1) allows the person with decision-making responsibility to determine "the child's upbringing, including his or her ... religious training," unless the court, after hearing and upon motion by the other party, finds that, "in the absence of a specific limitation of the person's ... decision-making authority, the child's physical health would be endangered or the child's emotional development significantly impaired." ...

Here, the trial court observed that Clark and McLeod will never be able to agree regarding the religious upbringing of the minor child and awarded Clark sole parental responsibility concerning religion. Thus, Clark is the "person ... with responsibility for decision-making" within the meaning of § 14-10-130(1)....

[W]e cannot determine from the findings whether the trial court applied the correct standard in limiting Clark's right to determine the child's religious upbringing. Although McLeod argues this restriction is a mere nondisparagement clause, we cannot uphold it on this basis because it is not so described in the trial court's order. Nor is it mutual.

Hence, given the important role that religious freedom enjoys in our constitutional scheme of ordered liberty, and the mandate of § 14-10-130(1), we conclude that remand is necessary....

So the restriction was lifted -- but if the trial court judge concludes that without the restriction on anti-homosexual comments, "the child's emotional development [would be] significantly impaired," then the restriction could be reimposed.

The Court of Appeals also upheld the trial judge's decision to award joint custody to the mother and the ex-partner, though the ex-partner hadn't adopted the child. The court's decision was based on the "psychological parent" doctrine: Once someone has raised a child for many years, from near infancy, with the legal parent's permission, it's in the child's best interest that the resulting psychological bond -- which is much more important to the child than any legal or biological bond -- be maintained. The court also concluded that the doctrine doesn't violate the legal parent's parental rights under the Constitution (distinguishing Troxel v. Granville, the case striking down a grandparent visitation law). That part seems quite sensible to me.

What do you folks think?

1. Should a judge be free to order a parent to "make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic"? Should the judge be allowed to so order only after a specific finding that without the restriction, "the child's emotional development [would be] significantly impaired"?

2. If your rationale is that the judge can and should order a parent not to teach things that could undermine the child's respect for the other parent, say that Clark's ex was a racist. Should the judge have been allowed to order the child to "make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be consider racist-phobic"?

I believe that hostility to lesbians is indeed morally wrong while hostility to racists is morally right. But does the First Amendment distinguish the two, and conclude that orders not to teach a child homophobia are permissible (at least when such teachings could undermine the child's respect for the other parent) while orders not to teach a child hostility to racists are impermissible (even when such teachings could undermine the child's respect for the other parent)?

(For my answer to these questions, see PDF pages 86-88 of my article.)

Help Lead to Giving Husband Temporary Physical Custody of Children: Here's an excerpt from the temporary order in Ahmed v. Haroun (Minn. Dist. Ct. Sept. 7, 2005) granting the husband physical custody. The order was later superseded by a permanent order allowing joint physical custody based on a court-appointed custody evaluator's recommendation (see the appellate decision in this case).

c. Neither party alleges domestic abuse by the other party. Assuming Husband's assertions regarding Wife's conduct in practicing her Muslim religion, this Court has grave concern that she would not be an appropriate parent or role model for the children. In the same light, the Court has concern about Wife's volatile behaviors not just towards Husband, but towards the minor children and in front of the minor children.

d. In considering that Husband has lived almost his entire life in the Twin Cities area and has become a U.S. citizen, while Wife has not acclimated well to her relocation to the United States or American culture, has not sought US citizenship until after these proceedings commenced, voiced her anti-American sentiments, it is in the best interests of the parties' minor children to be under Husband's temporary physical custody.

Here is the passage from the husband's affidavit that contains what seem like the relevant "Husband's assertions regarding Wife's conduct in practicing her Muslim religion":

4. In Respondent's mind, the 9/11 tragedy was justified; she believes that America deserved it for being pro-Israeli and because America is standing by watching Israel "slaughter" Palestine. She supports the terrorists' action; she supports and believes in the extremism and Respondent supports Osama Bin Ladin and believes he is a "hero," and a role model to aspiring extreme Muslims.

Shortly after the 9/11 tragedy, we went to Egypt on vacation. It was then when Respondent became so obsessed with the Muslim religion; her brother has become and extremist. Respondent from this point on was consumed by watching every religious program and surfing the net on 9/11 propaganda that Respondent began neglecting the household. Respondent has since been unstable and does not deal with day-to-day issues with reason.

When I met Respondent she did not wear a Hejab. After 9/11, Respondent first started wearing a Hejab. Respondent believes (according to her belief and her interpretation of the Koran), that women who don't cover their hair "will be hung by their hair in hell," which is not true at all. Respondent claims to be a practicing Muslim. If that were true we would be going through the Islamic Jurisprudence of Minnesota Committee in resolving our divorce and she would not sympathize with the 9/11 terrorists. I, on numerous occasions, tried to tell Respondent that we are living in a great country: America where sky is the limit, where we can be more open-minded, and be open to learning from all that is around us. She is not willing to adjust to the American culture and instead, she has significantly gone the other way towards anti-America sentiment. After 9/11, Respondent posted on the refrigerator a list of Jewish owned businesses which she vowed to "boycott". I do not want her to teach the boys such racism and prejudice.

As our sons' father, I have been a positive role model by teaching them good ethics and values. Respondent claims that I have not provided any care for the boys. This is not true! I have fed the children, bathed, changed, shopped, taken them on bike rides, read to them, said prayers with them, swam with them, have gone to almost all of their doctor appointments, taken them to a mosque and Sunday school. I know that I can provide the kids with love and the exposure to the day-to-day life experiences. This is why I ask the Court to grant me physical custody. I am concerned that if Respondent has sole custody of the boys, then she will teach the boys the extreme beliefs she is following. I want the boys to live the "American life" and not grow up being taught and to believe anti-American sentiments that Respondent is following.

Respondent has not liked being this country and does not believe in what it stands for. Respondent has asked me many times to transfer to RE/MAX franchise in the Middle East. During discussions regarding our divorce, she has asked me to buy her an apartment in Egypt.

The wife denied the husband's accusations, though the court seemed to believe the husband when deciding on the temporary order. One of husband's friends and coworkers also filed an affidavit saying that "while at their house for dinner, I was struck to see a list ... of Jewish businesses to avoid, posted on the refrigerator" (a list that he was sure wouldn't be the husband's doing, based on what he knew of the husband's views). The affidavit also reported on the husband's pre-divorce complaints about the wife's "attitude towards her faith, her new country, and her predilection for surfing the internet and watching Islamic satellite programming that was anti-American and extremist in tone," the wife's "fundamentalism and Anti-Sem[i]tic views," and the husband's "concer[] with the type of message and values that extreme Islamic fundamentalism would have on their children."

The husband also alleged various other misbehavior by the wife; the judge seemed to be referring to this when he talked of "Wife's volatile behaviors not just towards Husband, but towards the minor children and in front of the minor children." But it seems pretty clear that the judge relied fairly substantially on the wife's anti-American sentiments, and her "conduct practicing her Muslim religion," which seems to refer to the pro-jihadist and anti-Semitic views. The court of appeals likewise seemed to think the wife's views were important to the trial court's temporary decision; its summary of that decision read,

Ahmed initiated a marital-dissolution proceeding in 2005. He filed a number of affidavits accusing Haroun of sympathizing with terrorists and engaging in anti-Jewish activity. The district court issued a temporary relief order granting Ahmed sole physical custody of the couple's three young children. The district court noted that because of Ahmed's claims about Haroun's "conduct in practicing her Muslim religion, this Court has grave concern that she would not be an appropriate parent or role model for the children." The district court, among other factors, based its decision on Haroun's failure to seek U.S. citizenship until after the proceedings commenced and Ahmed's allegations about Haroun's voicing anti-American sentiments.

In any case, this seems like a fascinating story, and an example of what I describe in my Parent-Child Speech and Child Custody Speech Restrictions, 81 NYU. L. Rev. 631 (2006) (as well as in this thread, which touches on another extremist-Islam-related parent-child speech case). A few questions for those who want to think further about this matter:

1. Do you think that a reasonable judge could conclude — focusing only on the factual question, and setting aside the constitutional issues — that it's more in the child's best interests to be raised by a parent who is not anti-American, anti-Semitic, and fundamentalist Muslim than it is to be raised by a parent who is those things?

2. Even if the answer to the first question is yes, do you think that the judge should nonetheless be barred from considering such parental views in the custody decision?

3. If a judge is entitled to consider such ideological factors in this case, do you think that there should be any constitutional limits on child custody decisions that are based on such factors?

An interesting item from Linnell v. Linnell, 2008 WL 1913991 (Conn. Super. Apr. 15):

The children, by the parties' agreement prior to their birth, have been raised in the Muslim faith. The children, or at least Kelsey at this point, attend weekly religious instruction. They observe the Muslim holidays, as well as some of the Muslim rules (i.e., no consumption of pork). The Plaintiff testified that he agreed to raise the children in the Muslim faith, "so long as we were married." The Defendant testified that she "wouldn't compromise on religion." The children's faith should not be premised on the status of the parties' relationship. Further, the record would support that but for the Muslim faith, the children would have no faith at all. Neither party presented evidence that would suggest their original commitment to raise the children as Muslims should no longer be honored and respected.

The order isn't clear on whether the court ordered that the father continue to cooperate in raising the children Muslim. But the discussion in the opinion very strongly points to this, and I take it that divorcing parents don't lightly ignore the judge's sentiments as expressed in the opinion.

Two thoughts about this:

(1) The court says here that the plaintiff agreed to raise the children as Muslims "so long as we were married." Later, though, the court says there was a "commitment to raise the children as Muslims." Is that really accurate? Even if premarital contracts to raise children in a particular religion are enforceable (as I'm inclined to say they would be), it's not clear to me that there was such an agreement.

(2) More importantly, what's this about "Further, the record would support that but for the Muslim faith, the children would have no faith at all"? Can that really be a constitutionally permissible factor? Seems to me that under the First Amendment, the Court may not prefer one religious upbringing over another (at least in the absence of some showing of imminent likely harm to the children), a religious upbringing over an irreligious one, or an irreligious upbringing over a religious one. Whether it's better to be a Muslim or to have no faith at all is not a matter for secular courts, including secular family courts, to decide.