Religion and Child Custody Disputes

One of my great intellectual heroes has written about a disturbing phenomenon: courts using the religious activities of a parent as a factor in deciding child custody disputes.  Churchgoing parents are, in many states, more likely to be awarded custody because they go to church than less-observant parents.  This is an easy decision to me: whether one goes to church, or not, is a constitutionally-protected liberty, and so the government must be neutral to it.  A court cannot take into account whether a parent is religious or not when balancing the many factors that equate into a “best interests of the child” decision regarding custody. 

If you don’t believe me, consider a hypothetical court opinion that Prof. Volokh wrote today for discussion purposes:

One factor we count in favor of awarding custody to the father is that mother is a devout Christian, who takes the view that sex before marriage is immoral, that homosexuality is immoral, and that people who don’t accept her so-called Savior are going to end up eternally damned. Moreover, mother not only practices this in private, but expresses her views in ways that the child will surely learn about, for instance by going to Christian churches in public places, and discussing her religion online where she has two to four websites of so-called “blogs.” And we have reason to think that as the child gets older, mother will actually try to teach these views to the child.

In our view, such teachings are distinctly against the child’s best interests. We believe that they may cause unnecessary psychological suffering during adolescence, especially if the child finds himself sexually interested in the same sex. The fear of eternal damnation — both for the child and for the child’s love ones — strikes us as especially likely to cause needless suffering, especially since it seems to be entirely lacking in any factual evidence.

Finally, we would be remiss in ignoring that the mother’s views are decidedly out of step with the views of the diverse yet oddly ideologically homogeneous City and County in which we live. If the child adopts such views, the child may find himself having a hard time interacting in productive and nondiscriminatory ways with his neighbors, whether they are gay/lesbian/bisexual/transgender, heterosexual but engaged in premarital sex, non-Christian, or just simply tolerant and open-minded. It is therefore clear to us that it is, all things being equal (or even nearly equal), far better for the child to be raised by the agnostic father than by the Christian mother.

Are you upset by this?  You should be.  Prof. Volokh cobbled the above from a series of actual court opinions awarding custody to Christian parents against their pagan or non-religious ex-spouses, turning it around to rule against the Christian to more dramatically illustrate the point.  At minimum, this underlines the reason why it is so objectionable to equate religion with morality, and more particularly of equating religious observance with moral behavior.