When Faith Defines, and Divides, Family: Lessons for Avoiding Bias in Family Court Decisions

For many devout people, religious practices matter across the lifespan of the family (Robin Fretwell Wilson & Shaakirrah Sanders, By Faith Alone: When Religious Beliefs and Child Welfare Collide, in The Contested Place of Religion in Family Law (Robin Fretwell Wilson ed. 2018) [hereinafter The Contested Place of Religion]): at birth, during childrearing, at marriage, after divorce, and at the end of life. Naomi Cahn & Amy Ziettlow, Personal Religious Identity at the End of Life, in The Contested Place of Religion.

Yet, when couples marry or form families, they often do not discuss the thousands of decisions that will confront them as a couple. W. Bradford Wilcox, Faith and Marriage: Better Together?, Inst. for Fam. Stud. (July 6, 2017); Jamie Spain, 21 Things That People Don’t Talk Enough About Before Marriage, BuzzFeed (Jan. 25, 2021); Robin Fretwell Wilson, Divorcing Marriage and the State Post-Obergefell, in The Contested Place of Religion. Those who marry or parent across religious differences are no exception. In 2013, less than half of interfaith couples, before marrying, jointly pondered and discussed the faith in which they would raise their kids. Naomi Schaefer Riley, Opinion, Interfaith Unions: A Mixed Blessing, N.Y. Times (Apr. 5, 2013).

When one or both persons are observant and the relationship dissolves, clashes often center on the couple’s children. Will they attend a religious school (Kelly v. Kelly, 217 N.J. Super. 147 (1986)) or participate in a faith community, soak up the “wrong values” at the other parent’s house, associate with those outside the faith, or become confused if one parent is religious and the other is not or because the parents are pushing different values (Pater v. Pater, 63 Ohio St. 3d 393 (1992)).

Just as faith can matter intensely to a fractured family, it can also matter intensely to the intact family. Americans remain deeply spiritual (Michael Lipka & Claire Gecewicz, More Americans Now Say They’re Spiritual but Not Religious, Pew Rsch. Ctr. (Sept. 6, 2017)) even as religiosity in the United States ebbs. Michael Lipka, A Closer Look at America’s Rapidly Growing Religious “Nones,” Pew Rsch. Ctr. (May 13, 2015). According to Pew, more than 75 percent of Americans identify with a faith tradition. Religious Landscape Study, Pew Rsch. Ctr. More than half say religion is “very important” in their lives. Megan Brenan, Religion Considered Important to 72% of Americans, Gallup (Dec. 24, 2018).

States have implicitly recognized the centrality of faith to many families by protecting their ability to raise children in their faiths. This extends to practices that many find problematic such as corporal punishment and faith healing, refusal to vaccinate children, circumcision, and other matters.

When judges decide religious disputes in the family or between the family and state, questions of bias often lurk in the background. If a judge favors a parent who is religious over one who is not or, on the other end of the spectrum, penalizes a parent who takes the children to religious services many times a week, constitutional protections may be implicated. Governments may not favor religion over nonreligion or favor one religious sect over another without infringing the Establishment Clause. If a court disfavors religious practices in the family, it may violate constitutional protections for free exercise or statutory protections for religious observance or both.

In this article, we first explore the broad zone of autonomy given to religious families to self-define by faith. We then examine what happens at dissolution when the state necessarily intervenes in a family. Twin guardrails formed by the Establishment and Free Exercise Clauses of the First Amendment to the U.S. Constitution confine state action, as do state constitutional and statutory guarantees of religious freedom. The key lesson for avoiding claims of bias: not “act[ing] in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices,” as the U.S. Supreme Court explained in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. 138 S. Ct. 1719, 1722 (2018).

Conflicts with the State

In the legal regulation of the family, religious practice has long been significant. It has mattered to who may marry, separation grounds, and the ability to annul marriages. William Saletan, The Love That Dare Not Speak Its Surname, Slate (Apr. 10, 2002).

In some jurisdictions, religion continues to matter. Robin Fretwell Wilson, When Governments Insulate Dissenters from Social Change: What Hobby Lobby and Abortion Conscience Clauses Teach About Specific Exemptions, 48 U.C. Davis L. Rev. 703 (2014). For instance, New Hampshire retains as a divorce ground “join[ing]” a religious sect that “destroys the marriage.” N.H. Rev. Stat. Ann. § 458:7(VIII); Arnold H. Rutkin, Family Law and Practice (1985). In Oregon, a couple may separate on no-fault grounds when staying married “protects . . . religious interest.” Or. Rev. Sat. § 107.025. And generally, “concealment or misrepresentation relating to religion” is “sufficient to annul a marriage.” Rutkin, supra.

For many, family is where religious belief matters the most. Robin Fretwell Wilson, Introduction, in The Contested Place of Religion.

The state’s regulation of childrearing not only impacts the parent’s liberty, but also a community’s ability to transmit norms and convey belonging. UN Convention on the Rights of the Child, Decision Adopted on a Communications Procedure in Respect of Communication No. 23/2017 (Feb. 27, 2020). Once-uncontroversial questions like circumcision of male children, a religious practice important to both Judaism and Islam, have suddenly become contested. Eric Rassbach, Coming Soon to a Court Near You, in The Contested Place of Religion; Menachem Posner, 20 Facts About Jewish Circumcision Everyone Should Know, Chabad.org; Ghiath Alahmad & Wim Dekkers, Bodily Integrity and Male Circumcision; An Islamic Perspective, 44 JIMA 44-1-7903 (2012); Michael M. Grynbaum, New York City Health Board Repeals Rule on Consent Forms for Circumcision Ritual, N.Y. Times (Sept. 9, 2015).

This is because the choices made affect child well-being and the protection of vulnerable adults.

Scholars question whether parents should have an “other-determining” power over their children. James G. Dwyer, The Relationship Rights of Children (Wm. & Mary L. Sch. Rsch. Paper No. 09-233, 2006). Parental decisions to homeschool children saddles children with state-sanctioned disabilities, especially girls, who may be straightjacketed into “conventional and severely limited social roles.” Id. The marital family can be “a sphere divorced from the legal order[…,]” inviting the “subordination of women.” E. Schneider & N. Taub, Perspectives on Women’s Subordination and the Role of Law (1982).

When religious convictions and parental rights overlap, however, parents’ wishes often prevail. Efforts to constrain parental choices run head-long into constitutional and statutory protections for family decision-making and religious liberty.

Protections for Family Autonomy

The U.S. Supreme Court has long acknowledged a “private realm of family life which the state cannot enter[,]” where the “custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Prince v. Massachusetts, 321 U.S. 158, 166 (1944). When state regulation threatens religious practice, the family’s already strong claims against legal intrusion intensify. As the Court remarked in Prince v. Massachusetts:

To make accommodation between these freedoms and an exercise of state authority always is delicate . . . On one side is the obviously earnest claim for freedom of conscience and religious practice. With it is allied the parent’s claim to authority in her own household and in the rearing of her children. The parent’s conflict with the state over control of the child and his training is serious enough when only secular matters are concerned. It becomes the more so when an element of religious conviction enters. Against these sacred private interests, basic in a democracy, stand the interests of society to protect the welfare of children.

Id. at 165. Many cite Prince; Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925); and Wisconsin v. Yoder, 406 U.S. 205 (1972) as “proof of thick parental rights to the care, custody, and control of minor children and dependents.” Wilson & Sanders, supra.

However, while “parents may be free to become martyrs themselves[,] it does not follow they are free, in identical circumstances, to make martyrs of their children.” Prince, 321 U.S. at 170. More specifically, the rights afforded to parents do not supersede the interest of the state to protect children (Wilson & Sanders, supra), such as mandating “compulsory vaccinations.” Prince, 321 U.S. at 166.

Indeed, these foundational cases all articulate a no-harm-to-children principle supporting the State’s ability to supervise the choices parents make for children. Wilson & Sanders, supra. In some instances, the government showed harm, permitting it to override parental wishes; in others, such as Yoder, it did not show such harm.

Protections for Religious Practices in the Family

Judges and litigants often struggle with how far family court can go when addressing religious issues. The U.S. Constitution, state constitutions, and state laws that provide extraordinary protection to practice one’s faith within the family are all in play, even when practices may harm others, like minor children.

One key guardrail around religious liberty is that religious practices are entitled to neutral adjudication, even when the practices seem foreign or out of step with cultural norms. Decisions that are not carefully tethered to harm to the child risk appearing to proceed from illegitimate bias.

When states impinge on religious belief, they are constrained not only by state constitutional guarantees and state religious freedom restoration acts but by specific statutory protections. States with RFRAs, Heightened Scrutiny of Religious Claims, or Sexual Orientation/Gender Identity Laws, app. 2 in The Contested Place of Religion.

Because family law is largely the province of the states, these background protections for religious practice add to federal constitutional guarantees and have the power to exert a profound influence. In thirty-four states, burdens on religious belief or practice receive heightened scrutiny because of state constitutional guarantees (eleven states) (Religious Protections & LGBT Nondiscrimination Laws, Fairness for All Initiative), state religious freedom restoration acts (RFRAs) (twenty-three states) (Kelsey Dallas, Is the “DEFCON 3 Culture War” over Religious Freedom Bills Coming to an End?, Deseret News (May 15, 2021, 10:00 P.M. MDT); Governor Signs Religious Freedom Bill Allowing Challenges, AP News (Apr. 22, 2021)), or both. Heightened scrutiny means that the state must show good reason for laws that impact religious beliefs and practice.

Many state courts like Illinois interpret their constitutional protections for religious freedom in “lock-step” with federal jurisprudence. Heidi Brady & Robin Fretwell Wilson, The Future of Religious Liberty Protections in Illinois: Harmonizing Religious Exercise and Legitimate Government Concerns, in Ill. Pol’y Inst., An Illinois Constitution for the Twenty-First Century (Joseph E. Tabor ed., 2017). This means that state constitutional provisions will be construed as similar U.S. constitutional provisions are construed unless the state constitution’s drafters intended the courts not to do so or the state’s highest court clearly indicates otherwise. Illinois v. Falbe, 727 N.E.2d 200 (Ill. 2000). The following subparts sketch key parameters around state action.

Free Exercise of Religion Guaranteed by the First Amendment to the U.S. Constitution

In Employment Division, Department of Human Resources of Oregon v. Smith, the U.S. Supreme Court held that “law is constitutional under the Free Exercise Clause if it is facially neutral and generally applied,” even if the law tends to burden religious people disproportionately. 494 U.S. 872 (1990). Such laws receive deferential rational basis review.

However, since Smith, the Court has stressed that a law will not be neutral if it targets religions or religious practice.

In Church of the Lukumi Bablu Aye v. City of Hialeah, the Supreme Court struck down city ordinances that banned animal sacrifice but exempted areas zoned as slaughterhouses. 508 U.S. 520 (1993). The effect of multiple exemptions was that the City outlawed “religious killings of animals but . . . exclude[d] almost all secular killings.” Id. at 542.

In enacting the ordinances, the Hialeah City Council publicly declared that the church members engaging in animal sacrifice, the Santerías, “are in violation of everything this country stands for.” Id. at 541.

The Court found that “the ordinances’ texts and operation demonstrate that they are not neutral, but have as their object the suppression of Santería’s central element, animal sacrifice.” Id. at 522. The City could not show a compelling interest and no less restrictive means than singling out the Santerías, making strict scrutiny fatal to the ordinances.

The Court extended this holding to adjudications in its 2018 decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018). In a ringing endorsement of pluralism (William N. Eskridge Jr. & Robin Fretwell Wilson, Anthony Kennedy Opens New Chapter in American Pluralism, RealClear Religion (July 18, 2018), https://bit.ly/3bkY6W0) and respect for others, the Court, 7–2, sided with the baker, Jack Phillips, and erased penalties imposed on Phillips by the Colorado Civil Rights Commission for refusing to make a cake for a same-sex wedding based on his sincerely held religious views about marriage. A civil rights commissioner had labeled Phillips’s view of marriage “‘despicable and merely rhetorical,’ no different than justifying the Holocaust or slavery.” Id. These statements, unrebutted by the other commissioners, meant that Colorado violated its constitutional duty to craft and administer laws without “hostility to a religion or religious viewpoint.” Id. Writing for the majority, Justice Kennedy latched onto these damning statements, which went unrebutted. Kennedy found that the government should never suggest whether religious grounds for “conscience-based objection[s] [are] legitimate or illegitimate.” State officials could have weighed the State’s interest in shielding “gay persons [from] indignities when they seek goods and services in an open market” against Phillips’s “sincere religious objections” in a neutral way, as free exercise guarantees demand. Id. Instead, Colorado engaged in illicit hostility, actions that were not religiously neutral.

In its COVID-era cases, the Supreme Court has elaborated on this antidiscrimination principle, especially as questions of bias become more pronounced. Across multiple cases, the Court has stressed that the government cannot treat secular interests more favorably than sectarian ones. Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603 (2020). In Tandon v. Newsom, the Court held that California could not restrict households gathering for worship in private homes when it allowed other similar gatherings. Citing Smith, the Court said the state’s public health scheme was not generally applicable and neutral, but “accomplishes a subtle but unmistakable religious gerrymander.” Emergency Application for Writ of Certiorari to Justice Kagan at 4, Tandon v. Newsom, No. 20A151 (2021).

State Law Protections for Religious Autonomy

Across the U.S., “parents are legally empowered to rely upon “‘faith-healing’ practices . . . as an antidote to when their children contract preventable and treatable illnesses.” Paul Offit, Bad Faith: When Religious Belief Undermines Modern Medicine, Ill. Coll. of Law & Epstein Health L. & Pol’y Program (Apr. 6, 2015). Forty-five states exempt parents from duties to vaccinate children. Robin Fretwell Wilson, Appendix of Laws, in Religious Freedom, LGBT Rights, and the Prospects for Common Ground (William N. Eskridge Jr. & Robin Fretwell Wilson eds., 2019). Thus, courts lack the power to mandate vaccination of children against the wishes of the parents. Before COVID, a resurgence of once-eradicated diseases led California and Vermont in 2016 to repeal religious and personal belief exemptions. Sarah Breitenbach, States Make It Harder to Skip Vaccines, Stateline.org (May 29, 2016, 11:47:09 P.M.); Tara Haelle, California Vaccination Bill SB 277 Signed by Governor, Becomes Law, Forbes (June 30, 2015, 2:14 P.M. EDT); Vt. Stat. Ann. tit. 18, § 1122.

Legislators have struggled to scale back laws permitting parents to treat “by faith alone,” despite the tragic consequences. Wilson & Sanders, supra. For example, in Idaho, child mortality rates in one fundamentalist enclave are 10 times greater than rates in the rest of the state. Infant Mortality Rates by State, Nat’l Ctr. For Health Stat. (Mar. 12, 2021). In 2017, Idaho’s Senate majority leader led efforts to open parents who refuse to provide treatment to their child to legal liability, without success. Wilson & Sanders, supra.

More recently, COVID-19 has tempered parental deference. Ross D. Silverman, Douglas J. Opel & Saad B. Omer, Vaccination over Parental Objection—Should Adolescents Be Allowed to Consent to Receiving Vaccines?, 381 N. Engl. J. Med. 104 (2019). DC now allows minors over 11 to consent to vaccination when mature enough to comprehend the need, nature, and significant risks. D.C. Code § 23-193 (2020). However, outside of DC, most jurisdictions require parental consent “because of the constitutional right of parents to the control and custody and care of their children,” but only “up to the point of harm.” Lois M. Collins, What Happens When Teens Want the COVID-19 Vaccine and Parents Say No?, Deseret News (Sept. 9, 2021).

Healthcare decision-making is not the only domain in which parents are given a wide berth. In 2017, 44 states and DC allowed corporal punishment, premised for some on Biblical passages not to spare “the rod.” D.C. Code ch. 23; Proverbs 23:13 (King James). Acceptable discipline stops at “excessive force” or causing “substantial injury.” Fifty-State Survey of Corporal Punishment Laws, app. 1 in The Contested Place of Religion.

Although to our knowledge state RFRAs have not been used to escape discount duties within the family, they have been used to force a state Medicaid agency to fund a bloodless liver transplant for a Jehovah’s Witness in a neighboring state, despite agency rules prohibiting “reimbursing out-of-state procedures.” Christopher C. Lund, RFRA, State RFRAs, and Religious Minorities, 53 San Diego L. Rev. 163, 166 (2016) (symposium). The state “refused to make any exception for her,” an outcome many see as needlessly rigid. Id.

Synthesizing the Take-Aways

Governments can write laws that burden religion practices in the family so long as they do so neutrally, laws that will be given rational basis review. The “best interests of the child” test is a classic instance of such a neutral rule.

There are limits, of course, to the presumption of rational basis review for laws that burden religious practice. City of Hialeah charts a clear exception: Governments may not religiously gerrymander by creating rules with exceptions for nearly everything but religion, and neither may governments target religion. Masterpiece Cakeshop extends the neutrality requirement to adjudications like those that happen in family courts. Fair treatment of religious practices have animated the Court’s decisions during COVID-19. The Court has spoken clearly that governments may not treat religious interests more harshly than others.

Thus, if positive law of a state protects parents who deny their children safe, life-saving medical treatment, judges will need grounds for intervening to force treatment. This may come from the state’s abuse and neglect law or from a judicial bypass. They may have to terminate parental rights in order to override the parents’ wishes. Robin Fretwell Wilson, Non-Offending Parents’ Right to Make Medical Decisions for Their Kids, Inst. for Fam. Stud. (Oct. 21, 2014). Even then, courts will be hard-pressed to intervene quickly enough to change outcomes, or at all.

Yet most states have not written laws that burden religious practice in an effort to secure child welfare. Instead, state lawmakers have provided an umbrella of thick protection for religious practice within the family.

Many find the degree of protection for religious practice difficult to fathom. It is possible that state laws providing extraordinary protection for religious practices of all stripes may be challenged as violating the Establishment Clause, as cases in the next section demonstrate. They may also be challenged as encroaching on a mature child’s countervailing rights to determine their own fate, but this interest is still being fleshed out in cases. Obergefell v. Hodges, 576 U.S. 644 (2015).

Complicating matters, courts must apply the best interests test neutrally. If adjudicators intimate the view that a religious practice is, in their view, “illegitimate,” the judgment may receive strict scrutiny. Eskridge & Wilson, supra. As the next section shows, when courts evaluate a religious practice, showing a nexus to the child’s well-being will be essential to avoiding charges of bias.

DOWNLOAD FIGURE 1 — A TYPOLOGY OF RELIGIOUS CONFLICTS IN CHILDREARING [PDF].

Conflicts Within the Family

Marrying across faiths can be a stressor and precipitate divorce, even as religiosity stabilizes some families. Riley, supra; Naomi Schaefer Riley, ’Til Faith Do Us Part (2013); Robin Fretwell Wilson, “Getting the Government Out of Marriage” Post Obergefell: The Ill-Considered Consequences of Transforming the State’s Relationship to Marriage, 2016 U. Ill. L. Rev. 1445; Wilson, Divorcing Marriage, supra. Ironically, “[i]nterfaith couples tend to marry without thinking through the practical implications of their religious differences,” making questions at divorce particularly fraught. Riley, ’Til Faith Do Us Part.

Pervading court decisions about whether and how religious values should matter after dissolution are two primary constraints: the Establishment and Free Exercise Clauses. Below we illustrate how these constraints operate in a series of archetypal conflicts in which one or both parents are observant or when the parents are not, but the child participates in a faith community.

Type 1. Clash of Values in the Initial Custody Determination, Johnson v. Johnson

In an early example of religious values clashing, Johnson v. Johnson (564 P.2d 71 Alaska 1977), Rudy, a Jehovah’s Witness who was disfellowshipped for smoking, fights with Linda, a Jehovah’s Witness, for custody of their seven-year-old daughter and five-year-old son. The trial court awarded legal custody to both parents but gave physical custody to Linda based on an antiquated tender-years presumption.

Rudy appealed, contending he would be the better custodian because Linda’s faith would restrict the kids’ educational and cultural environment—they had not been taught “simple tasks [like] washing themselves, … [and could not] celebrate holidays, birthdays or . . . join . . . the Brownies. . . .” Id. at 72. Linda would not encourage college. Moreover, Rudy would have “virtually no input into [his children’s] lives because of his disfellowshipped status.” Id. at 73.

The Alaska Supreme Court rejected the tender-years doctrine as “inconsistent with the delicate weighing and balancing process” needed to determine the children’s best interests, and remands. Id. at 75.

The court ruled out-of-bounds concerns about Linda’s religion if not anchored to actual harm. As to “assimilation into the dominant culture,” the court noted, “It is not [our] function . . . to homogenize Alaskan society.” Id. at 76. Moreover,

[W]e cannot use Linda’s continued membership in the Jehovah’s Witnesses . . . as a basis for directing the trial court to award the children to Rudy. To do so would be violative of her right to freedom of religion under the First Amendment. . . .

Id. If Rudy’s fears were confirmed, he could argue a material change of circumstances justifying modification. Ample visitation would permit him to monitor the kids’ progress.

Type 2. Children’s Interests in Religious Support, McLemore v. McLemore

In McLemore v. McLemore (762 So. 2d 316 Miss. 2000), Carl and Anita shared a brief and turbulent marriage marked by “drug addiction” and “violence” that resulted in fraternal twins. Id. at 320, P9. The couple’s unpredictable environment jeopardized the twins’ “well-being” at a “vulnerable” age. Id. At divorce, the trial court awarded joint legal custody, with physical custody of their twins to Anita, and directed Carl and Anita to “assume the responsibility for the attendance of the children in church each Sunday while in their respective custody.” Id. at 319, P6. The trial court found that the Church would offer the children a stable “support network.” Id. at 320, P9. Anita appealed, arguing violations of the Establishment and Free Exercise clauses.

The Mississippi Supreme Court affirmed the lower court, over a sharp dissent arguing that the “church attendance” should be “unenforceable.” The church provision, the majority found, stipulated that only the children must attend some church service—the parents retained the prerogative to determine the specific religion and whether the children’s “regular and systematic spiritual training” is best fulfilled “by attending Sunday School each Sunday or Church or both.” Id. at 320, P10. Moreover, neither parent was required to attend church; only their children.

Type 3. Clashing Values Around Visitation. Harrington v. Harrington

Harrington v. Harrington (648 So. 2d 543 Miss. 1994) illustrates religious clashes through restrictions on visitation, which operate as a kind of “morality clause.” Davis v. Davis, 317 So. 3d 47, 50 (Ala. Civ. App. 2020).

In Harrington, a divorced father, Mark, cohabitated with Stephanie. Mark’s children interacted with Stephanie during alternate weekends, holidays, and summer visitations. The children’s mother, Donnett, moved for a change of custody. Cohabitation, she contended, is teaching the kids the wrong values and is adversely affecting the children—Stephanie yelled or cussed at the kids when disciplining them.

The trial court ordered no overnight visitation because having nonmarital guests sleep over would be “detrimental to the children” and “confus[ing]”—it “conflict[ed] with [Mark’s] religion” as a Catholic: Mark “attempts to raise his children in a Christian environment” but “admitted that he did not lead a perfect life.” Harrington, 648 So. 2d at 544. Remarkably, the trial court also restricted “Mark from discussing Stephanie with his children or his past, present or future plans concerning Stephanie.” Id. at 547.

Mark appealed, challenging those restrictions as unreasonable. The Mississippi Supreme Court reversed. The court began with the standard for modification of visitation: There must be “substantial evidence” that the children are adversely affected by Mark’s cohabitation and, more specifically, a showing that particular visitation restrictions are “necessary to avoid harm to the child.” Id. at 545. “Overnight visitation with the non-custodial parent is the rule, not the exception.” Id.

Here, the children showed no actual evidence of confusion or anxiety—they asked Mark when he would marry Stephanie and never refused to visit. Further, yelling or cussing on two occasions, in order to discipline a child, was not substantial enough evidence of harm to restrict Mark’s visitation. Lastly, the court found that the chancellor was without authority to prohibit Mark from talking about Stephanie with his kids.

Type 4. Shared Parenting Plans, Holder v. Holder

Cases often arise as clashes over shared parenting plans agreed upon at divorce. In Holder v. Holder (872 N.E.2d 1239 (Ohio 2007), a couple, Steve and Celeste, divorced after six years of marriage and entered into a shared parenting plan of their five-year-old child, Michelle.

A year later, Steve and Celeste both sought sole custody. Celeste, a Pentecostal, prohibited her daughter from swimming “with the boys,” getting her hair cut, “watch[ing] television,” or “wear[ing] make-up, jewelry or nail polish.” Id. at 1240. A court-appointed psychologist testified that this made Michelle feel “fear, deceitfulness, guilt and confusion.” Id. at 1241. The trial court awarded sole custody to Steve.

Steve appealed, seeking to enjoin Celeste from sharing her religion with Michelle. The court of appeals sustained the award of custody to Steve because he could “provide for Michelle’s best interests” and “separate the child’s needs” from his own. Id. A concurring judge would have issued the injunction—sharing one’s religion “cannot transcend the fundamental obligation that a parent has to not cause harm to the child.” Id. at 1244 (Walters, J., concurring). But the court refused to enjoin the mother from imparting her religious beliefs to the child: Parents enjoy a “fundamental right” to share their religion with their children. Id.

Type 5. Agreements in Contemplation of Marriage, In re Marriage of Weiss

In In re Marriage of Weiss (49 Cal. Rptr. 2d 339 1996), Martin and Marsha married after Marsha converted to Judaism and they signed a prenuptial agreement that stipulated any children would be raised Jewish. Nine years later, the trial court awarded the parents “joint physical and legal custody” of their child. Id. at 342.

During the divorce, Marsha joined Calvary Church. Martin sought to “enjoin” Marsha from sharing her religion with their son, but the California trial court denied his request. Martin appealed. Id. at 341.

The appeals court found the prenuptial agreement “unenforceable” because the court did not wish to be “entangled” on religious questions. Id. at 345, 346. In essence, the court was reluctant to differentiate what constituted “religious exposure” versus what qualified as “religious indoctrination.” Id. at 344. Enforcing the prenuptial agreement would “entangle” the court in religious matters and violate the Establishment Clause. Id. at 347.

Martin also failed to demonstrate that his son would be “harmed” by Marsha’s religion. Id. at 344. Ironically, Martin tolerated some religious “exposure”—attending Christian church and “sing[ing] hymns”—but objected to religious “indoctrination” like “joining a children’s choir group.” Id. at 347. To “enjoin” a parent requires “a clear affirmative showing that [the] religious activities will be harmful to the [child].” Id. at 346. The father’s “speculative” evidence of harm from exposure to “contradictory religions” did not suffice. Id. at 345.

Further, restricting Marsha from sharing her Christian faith would infringe on the mother’s “inalienable First Amendment right . . . which includes the right to change her religious beliefs and to share those beliefs with her offspring.” Id. at 347.

Type 6. Divorce Settlement and Separation of Agreements, Jabri v. Jabri

Most couples who divorce will reach settlement agreements specifying child custody. In Jabri v. Jabri (598 N.Y.S.2d 535 (N.Y.A.D. 2d Dep’t 1993)), the father, Tarek, a Syrian diplomat at the United Nations and a Muslim, and Audrey, a U.S. citizen and nonpracticing Protestant, shared four children. The couple dissolved their marriage on the basis of Tarek’s “cruel and inhuman treatment,” which included alleged acts of “aggression and abuse toward the children.” Id. at 537. The trial court awarded Audrey custody and visitation to Tarek; the “children [would] be raised in the Islamic faith” if they were willing. Id. at 536.

Tarek appealed the trial court’s judgment. Upon appeal, the New York appeals court affirmed the lower court decision. Generally, separation agreements covering children’s “religious upbringing” are only sustained “when incorporated into separation agreements, court orders, or signed stipulations.” Id. at 537. In this case, a “written agreement” was not incorporated into the “separation agreement.” Id. Thus, Audrey retained the liberty to guide her children’s religious upbringing.

Distilling Lessons for Avoiding Bias from these Cases

Because neither legislatures nor judicial decision-makers are permitted to target a specific religion, a court could not, for instance, disfavor the parent who is a Jehovah’s Witness when deciding who will receive sole custody—absent a connection to the child’s well-being. Not every decision is as stark as the choice between custodians, however.

Courts also cannot treat a secular interest more favorably than a religious one without justification. Moreover, the decision may be assessed for a compelling interest and no less restrictive means. So, for instance, courts cannot limit a parent’s taking a child to their preferred religious services absent a showing of harm. Courts likely could not approve a parenting schedule that implicitly favors soccer practice over religious observance without triggering strict scrutiny—which is often fatal scrutiny, as the first section illustrated.

Neither may courts “sound off” about religious practices that are unfamiliar to them. Such suppositions of harm, without more, are likely to trigger strict scrutiny. Religious practices in fact can be harmful, as the first section illustrates. The best antidote to claims of bias is to counter the concern with actual proof of harm.

As one example, if evidence of actual harm to a child’s emotional health, sense of stability, or connection to a parent is shown, then courts may render a judgment that encroaches on a religious conviction because it promotes the child’s welfare.

In short, courts retain considerable discretion when evaluating the child’s best interests. If a court imposes a restriction on religious practice, it should marshal evidence of harm.

Conclusion

Like many issues that divide us, religion can be a source of great consternation, misunderstanding, and xenophobia.

Although the Supreme Court brackets parental authority derived from the Constitution—parents may not harm their children—claims by families to be autonomous and live by their faith receive significant protection in state constitutions and statutes despite placing children at grave risk.

Judges must check their own convictions about religion at the door and conduct a searching examination for a nexus between the parent’s conduct and actual harm to the child. If adjudicators intimate the view that a religious practice is “illegitimate,” the judgment may receive strict scrutiny. Eskridge & Wilson, supra.

Suppositions of harm untethered to actual proof will raise concerns about whether illegitimate bias lurks in the background. In individual contests at divorce, courts are permitted to exercise broad discretion, especially when sanctioning the child’s religious upbringing. Courts can also override the parent’s choice as to religious upbringing under the umbrella of a child’s best interests where actual, not speculative, harm or detriment is proven.

To avoid concerns about bias, courts must take care not to evince “hostility to a religion or religious viewpoint.” Id. They should stick to the elements of the best interest of the child standard. In this sense, the best tool for avoiding questions of religious discrimination or bias in the adjudication is to do what judges do best: make careful, fact-based decisions guided by the needs and interests of the specific child.