child custody/religion

[David Sinacore-Guinn]

>>> Michael McConnell wrote:

[snip]  ....the notion that the court can "stay out" of religious issues by "not
interfering" strikes me as a fallacy. In this context, not to decide
is to decide. To allow both parents to engage in mutually
inconsistent religious education is to prefer religious incoherence.
My guess is that that solution is one favored by people who do not
think a coherent religious education is an important thing.  ("How
can a child be hurt by being exposed to different views?")
>>>>>>>

While I agree that "not acting" is effectively equivalent to acting, I'm afraid I cannot accept the concept of the Courts choosing a particular religion.  For one thing, this does not recognize that the child may themselves be religiously evolving in the same direction as the parent who is altering their faith.

However, more important than that, it reflects a governmental statement that one parent is somehow more correct than the other.  Just because parents divorce does not mean that they are no longer parents or that their relationships with their children must end.  While that all too frequently occurs, the law should not be structured to support that occurrence by officially sanctioning a statement that one parent or the other is "wrong" in the choice of their faith.

Instead of viewing the conflict in this case as teaching religious incoherence, I think it may be equally viewed as teaching (or requiring the teaching) of religious tolerance.  There are many in tact families with mixed marriages in which the children receive an acceptable religious education and continue in a particular faith regardless of the fact that their parents disagreed on which faith they themselves maintained.  While perhaps not perfect, it is hardly a religious tragedy.

I will acknowledge that there are some religious traditions that may not favor the teaching of religious tolerance.  In this case, the Courts would be allowing a limitation on that belief insofar as they require the parents to be tolerant of the faith tradition of the other parent or (as suggested in my last post) where they intervene in the best interests of the child to preclude one parent utilizing this religious disagreement as a way of harming the relationship of the child with its other parent.  Nonetheless, insofar as those religions that teach intolerance may also expect the government to be intolerant of all but their faith, the First Amendment similarly limits their FE rights.

Freedom of religion is not an absolute right.  Liberal society can not and does not tolerate all claims of a particular right; to use Taylor's famous example, it will not sanction a religious assassination.  The teaching of religious tolerance is, I think, a fundamental value of this society.  While we may not choose to act against religious intolerance where it does not identifiably harm another, it is inappropriate for the State to actively support a teaching of intolerance by opting to support it.

Again, insofar as religion becomes a weapon intended to harm the relationship of the child with one of its parents, the courts may be forced to intervene and choose.  However, the threat of such intervention may also serve as a tool to structure a more tolerant acceptance of religious diversity such that the courts need not explicitly involve themselves in the relationship.


David Sinacore-Guinn JD, PhD
The Park Ridge Center
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dsg at prchfe.org