I just got the trial court opinion in Kik v. Kik, the latest Michigan appellate case that counted a parent's greater religious observance as a factor in favor of the parent's custody claim. Here's what the trial judge wrote about this:

As far as religion, the testimony indicates that the child was baptized at Saint Paul's in Big Rapids which is where the parties were married. The Plaintiff testified that religion was an important factor to both parties when they were first married and both felt strongly about raising [their daughter] in the church. The Plaintiff also admitted that after they were married it was a struggle for them to attend church, however, since the separation the Plaintiff has been more consistent with attending church and taking [the daughter] with him on a regular basis. The Plaintiff attends church every week at Saint Mary's of the Woods Catholic Church in Kalkaska and takes [the daughter] with him to church on a regular basis. The Plaintiff's testimony and actions appear to be sincere in raising [the daughter] in the church.

The Defendant testifies that she also attends church at Saint Paul's in Big Rapids which is where [the daughter] was baptized. The Defendant testified that she was more regular in attending church during the summer, however, has not been regular in attendance during the winter months. The Defendant testified that she has allowed [the daughter] to make the decision as to whether or not she attends church. However, the court agrees with the Plaintiff that this is not a decision which should be left up to a young child [who was 3½ at the time of the decision]. The Plaintiff testified that the Defendant has admitted to him that she does not take [daughter] to church on a regular basis and does not feel that it will make a difference.

Although the parties struggled to attend church while they were married, the Plaintiff appears to be more consistent in attending church with [the daughter] on a regular basis now that the parties have separated. The court must remain neutral with respect to each of the parties['] religious beliefs, however, both parties agreed that religion was an important factor when they were first married and when they started their family. Since the parties have separated, the Plaintiff is the parent who has actively participated in [the daughter]'s religious upbringing while the Defendant has allowed [the daughter] to make the decision on whether she attends church....

As to raising [the daughter] in her religion, the Court concludes that this factor favors the Plaintiff.

Now I realize that the judge said she was remaining neutral with respect to the parties' religious beliefs — but I think that this decision was not neutral, and was based on favoritism (which, I think, violates the Establishment Clause) for the more religious parent.

To begin with, note that this is not a case where continuity of religious upbringing is valued simply because it prevents disruption for the child. I can imagine why a child who is closely involved with her church would be hurt by being separated from church activities and from her church friends. But here there's no evidence to controvert the mother's claim that the daughter prefers not to go to church often, and no evidence to suggest that this reduced churchgoing is causing disruption in the daughter's life.

Also, this is not a case where the court is enforcing a contract providing for the religious upbringing of the child. True, the parents apparently "agreed that religion was an important factor ... when they started their family." But there's no evidence that the parents entered into what they reasonably saw as a binding contract. Not every understanding or plan is seen by the parties as a binding contract, and that's good; we can value lots of things and plan lots of things without surrendering our rights to change our minds.

And this right to change one's mind is especially important for religion, a subject on which people do often change their minds. One's religiosity, and one's perception of the importance of religiosity to one's children, may well change. The divorce itself may shake one's faith in God (especially if one is Catholic). Seeing one's child grow may deepen one's religious beliefs or weaken them. Seeing how one's child behaves may change one's view about whether the child is getting something valuable out of organized religion. The pressures of everyday life may change one's perception of how much of one's scarce parenting time and energy one should devote to organized religion. And of course sometimes people may have religious epiphanies. One should not lightly infer a promise to maintain one's religious practices (or the nature of the upbringing one plans to give one's child) from a past general agreement that religion is an important factor.

What's more, note that the judge wasn't purporting here to enforce a contract between the parties. She was just deciding what was in the child's best interests. Even if explicit contracts to raise a child in a particular religious manner should be upheld (and I'm inclined to say they can be, if this can be done with a minimum of entanglement with theological questions, but that's a matter for another day), there's no reason to think any such enforcement was taking place here.

So what we have here is a judgment that, once two parents generally agree to raise a child religiously, it's in the child's best interests to continue that upbringing — even when one parent changes her views about religion, or about the importance of organized religious observance, and even when there's no particularized evidence that this child is seeing the change as disruptive. On other matters, I take it, a court wouldn't take the same view: One wouldn't hold it against a parent that she acceded to the 3½-year-old's request to stop taking ballet lessons. But as to religious practice, the one area where governmental coercion poses the greatest constitutional problems, the judge was holding a parent's change in attitude and behavior against that parent.

Once a child is being exposed to organized religion, the reasoning seems to go, it's in the child's best interests to continue this exposure, even when the child isn't interested, when stopping the exposure isn't causing disruption, when one parent thinks the exposure is unnecessary, and when the other parent would be free to expose the child himself during his time with the child. I can't see how that is consistent with the Establishment Clause principles that the government generally may not prefer religious behavior over secular behavior, and that the government may not coerce people into engaging in religious practice.

Perhaps the decision wasn't this particular trial judge's fault, given what seems to be the Michigan state legal principles that push in this direction. But it seems to me unconstitutional nonetheless.

UPDATE: Several commenters suggest that the mother was properly faulted for not living up to her supposed values, because she has supposedly been saying one thing (church is very important) and doing another (not taking the child to church regularly). I'm not sure that this would be a sensible position for the court to take, but before we can evaluate that, wouldn't we need to see some specific evidence that the mother is being inconsistent?

I see no such evidence in the trial court opinion. There's evidence that mother once thought church attendance was important. But now it seems that she "does not feel that it will make a difference" to the child, and in fact doesn't attend church regularly. Sounds like someone who has changed her views about organized religion, and no longer finds church attendance to be as important as she once did. That's hardly evidence of inconsistency, hypocrisy, or failure to live up to claimed values.