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Religious Discrimination in Child Custody Settlements
Civil Liberties Blog
March 31, 2006 Religious Discrimination in Child Custody Settlements
Austin Cline highlights a very routine but underreported civil liberties violation:

Imagine if Christians were commonly denied custody of their own children by judges who declared that attendance at Christian churches and maintaining a Christian education were contrary to the children’s best interests. The outcry against such a violation of basic liberties would be incredible — and the Christians would be right to be so upset. They are not upset, though, when Christian parents are benefiting from the same bigotry and discrimination aimed at atheists, agnostics, and parents who are simply apathetic about religion.

A recent article by UCLA law professor Eugene Volokh (PDF file available here) documents an astonishing pattern of systematic religious bias by family court judges. The clear message this article sends is that many family court judges are more likely to award custody of children to parents who hold religious beliefs similar to their own--even if more relevant considerations, such as the parents' moral character or history, would otherwise lead to a different outcome.

Volokh explains that although these cases are clearly unconstitutional, they operate in a rather nebulous area of civil law:

Some judges may prefer not to consider a parent’s ideology in the ... decision [regarding what would serve the "best interests" of the child]. They might think such consideration offends free speech principles, whether or not it actually violates the Constitution. Or they may think such inquiries are likely to yield much heat and little light, as each parent argues about what the other supposedly believes and plans to teach. Judges may also prefer not to restrict parental speech because they think such orders may be too hard to enforce—perhaps because enforcement would mean calling children to testify against their parents, which might hurt the children more than the order would help them.

Yet other judges may plausibly think that the benefits of considering a parent’s likely future teachings outweigh the costs. In some states, appellate courts have imposed one limit on such decisions: They have held that trial judges may restrict parents’ religious teachings only if there’s evidence that the teachings are not merely against the child’s “best interests,” but are causing or are likely to cause substantial emotional harm to the child. But this limitation hasn’t been adopted by all states ...

In fact, Volokh identifies 18 states where custody has recently been decided based partly or entirely on the judge's personal religious preferences: Alabama, Arkansas, Connecticut, District of Columbia, Georgia, Iowa, Louisiana, Michigan, Minnesota, Mississippi, Montana, Nebraska, New York, North Carolina, Pennsylvania, South Carolina, Tennessee, and Texas.

Because blatant religious bias on the part of a judge is a clear violation of the First Amendment's establishment clause, parents affected by such rulings may have a very strong case on appeal. But so far, the U.S. Supreme Court has not specifically ruled that judicial religious bias violates the establishment clause--and until such a ruling is established, judicial abuse of this kind is likely to continue.

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