Another Michigan preference-for-the-more-religious-parent case

[Douglas Laycock]

  No.   This cannot possibly be constitutional.

  Quoting "Volokh, Eugene" <VOLOKH at law.ucla.edu>:

>         Dik v. Dik, 2008 WL 376404 (Mich. App. Feb. 12):  "As to
raising
> Emma [age 2.5 at the time], the trial court found that this
sub-factor
> favored plaintiff based on the testimony that plaintiff had a
stronger
> religious background and was more actively involved in bringing the
> minor child to church than was defendant.  Because this finding was
> based on the record evidence, no error occurred with regard to this
> factor."
>
>         Let's set aside the broader First Amendment questions on
when a
> court may treat a parent worse because that parent's speech
(religious
> or otherwise) to the child seems likely to harm the child.  Here,
there
> was no finding remotely like this.  Rather, the court was simply
> interpreting Michigan's best-interests statute -- which requires
the
> consideration of "[t]he capacity and disposition of the parties
involved
> to give the child love, affection, and guidance and to continue the
> education and raising of the child in his or her religion or creed,
if
> any" -- as giving a preference to the more religiously active
parent.
>
>         Can that possibly be constitutional?  Isn't this an even
clearer
> case of religious coercion than in Lee v. Weisman, given that under
this
> rule (which Michigan courts seem to often apply) Michigan parents
know
> that, to maximize their chances of keeping custody of their
children,
> they need to show "a stronger religious background" (presumably
> "background" would include recent religiosity as well as
longstanding
> religiosity) and "more active[] involve[ment] in bringing the minor
> child to church"?
>
>         Eugene
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Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

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