A judge preferring the more religious parent

[Brownstein, Alan]

Richard makes a fair point – but if we take this thread back to the original dispute in which people of different faiths shared custody of a child at least to some extent, the question isn’t whether religion has a positive influence on the family and the social order but rather whether particular religions have a more positive influence than others (or whether people who are more devout according to some measurement have a more positive influence than people who are less devout) . Once we cross the line and allow religion to be taken into account because of empirical support for its positive influence, can we avoid taking the next step and allow judges to differentiate among faiths and degrees of religiosity based on an empirical analysis.

 

Alan Brownstein

 

From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Richard Dougherty
Sent: Friday, January 25, 2008 1:44 PM
To: Law & Religion issues for Law Academics
Subject: Re: A judge preferring the more religious parent

 

Just on Marty's first point -- and this might be off-list material: there is abundant evidence that religion has a positive influence on the family and the social order. Though I do only some work in this area, I have never seen an empirical study that suggests otherwise (if others have I'd be interested in the link).  Here is one summary of the current state of the question  -- some might dismiss it because it's from the Heritage Foundation, but Fagan is here summarizing the literature, not producing his own study.  (And I think one can say that Heritage is not a particularly "religious" organization, though undoubtedly conservative.)
http://www.heritage.org/Research/Religion/bg1992.cfm
But...I will add a caution, that might be pertinent to this discussion.  The most common denominator in divorce, acording to many studies, is religious intermarriage (next is cohabitation before marriage).
What this might mean for Marty's second point, about Madison, I'll leave alone for now.

Richard Dougherty



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Sent 1/25/2008 2:26:18 PM
To: "Law & Religion issues for Law Academics" <religionlaw at lists.ucla.edu>, "Law & Religion issues for Law Academics" <religionlaw at lists.ucla.edu>
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Subject: Re: A judge preferring the more religious parent

Good question.  We've been over this before in other contexts.  First of all -- is it really the case that there's empirical evidence (as opposed to a judicial assumption based on anecdote) that a religious upbringing is more likely to keep a child out of trouble?  Religious cultures, after all, tend not to be more virtuous than those that are more secular.  If there is no such actual evidence, then I think the EC tends to disfavor reliance on "casual empirical observation" about the relative *secular* virtues of adhering to religion or not.  It's simply too likely that such "casual" observations will track unproven assumptions about the way religion (or religious belief) "works" -- including from actors who have no interest in religious "truth," as such.  This is basically the issue that often arises with charitiable choice -- government decisionmakers abjure any views on the "truth" of religious belief, but favor preferential funding of religion based on a widely held assu!
mption,
supported by "casual empirical observation," that religion is correlated with successful resistance to addiction, avoiding unemployment, etc.  (Bush said as much in a SOTU speech a few years back trying to justify preferences for funding religious providers -- "I've seen it work with my own eyes" -- which we discussed here.)
Ah, but what about if the empirical evidence actually *does* support a correlation, a *causal* correlation, at that, between religious piety (or belief) and some secular virtue (e.g., kindness, abiding by the law, etc.).  Well, then we're back to paragraph five of the Memorial and Remonstrance.  To the extent one thinks the M&R is or should be a guide to "proper" construction of the religion clauses, Madison says there not only that the Civil Magistrate cannot be "a competent Judge of Religious Truth," but *also* that he may not "employ Religion as an engine of Civil policy."  "The first," writes Madison, "is an arrogant pretension falsified by the contradictory opinions of Rulers in all ages, and throughout the world: the second an unhallowed perversion of the means of salvation."
I find this question fascinating -- and certainly under-examined in the doctrine and scholarship.  Don't know which way I'd come out on it.  But I'm much more confident that we should conclude the EC is violated if the judge's view is based not on hard evidence, but instead on "casual empirical observation" about the secular virtues of religious belief.
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