I've blogged about this before, but I thought I'd note it again, because of two interesting cases from the past year that I just ran across. Here's an excerpt from Buck v. Buck, 4 Pa. D. & C. 5th 238 (Pa. Com. Pl. 2008):

D. Spiritual Well-Being

Father is religious and takes the child to church. Father currently places a high-level emphasis on religion. The child appears to be enjoying her religious activities.

Mother did not testify as to any particular religious/spiritual activities in which she seeks to involve the child, or any religious/spiritual activities which she seeks to instill in the child.

The child's spiritual well-being is better served by being in Father's custody.

Note that nothing in the opinion suggested that the court was considering the child's desire to keep going to church, or any possible harm that might come from a change in the child's routine as a result of her not going to church any more. The court elsewhere discussed continuity and child preference concerns, but not as to the child's "religious/spiritual activities," which leads me to think that continuity and child preference weren't the court's interest here. Rather, the court is taking the view that a parent's "high-level emphasis on religion," especially through "tak[ing] the child to church," is a factor in favor of awarding custody, and the other parent's absence of "seek[ing] to instill" "religious/spiritual activities" "in the child" is a factor against awarding custody.

Now, from Jackson v. Jackson (Ariz. Ct. App. Nov. 29, 2007):

Mother argues that the family court erred in not counting in her favor the fact that Jeremy will receive more religious instruction if he is placed with her. We disagree. "'[C]onstitutionally, American courts are forbidden from interfering with religious freedoms or [from taking] steps preferring one religion over another.'" Funk v. Ossman, 150 Ariz. 578, 581, 724 P.2d 1247, 1250 (App. 1986) (quoting Munoz v. Munoz, 489 P.2d 1133, 1135 (Wash. 1971)). Judges are not appropriate arbiters of whether it is in a child's best interest to be raised Muslim or Christian or to be raised more religious or less religious or not religious at all. See Smith v. Smith, 90 Ariz. 190, 193-94, 367 P.2d 230, 233 (1961) (First and Fourteenth Amendments to U.S. Constitution preclude changing the custody of a child based on a parent's religion); see also Everson v. Bd. of Educ., 330 U.S. 1, 15-16 (1947) ("No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance.") Both the United States and Arizona constitutions require that in making a decision on custody, the judge does not put a thumb on the scale on the side of the parent whose religion or religious practices the judge or the majority favors.

The Jackson approach strikes me as much more consistent with modern First Amendment doctrine. It also strikes me as much more consistent with what seem to me to be basic principles of religious equality, which should include the equality of those who participate in organized religion, those whose religious and spiritual life does not involve formal religious or spiritual education, and those who don't believe in religion at all.