Religious Disputes in Child Custody Cases Raise First Amendment Issues for Courts

An article in the New York Times notes that courts around the country are confronting a proliferation of child custody disputes with a religious dimension. Such cases may, for example, involve challenges to a parent’s suitability for custody based on the allegations that his or her extreme or unusual religiosity could adversely affect a child’s development or may involve requests for the court to direct one of the parents to refrain from behavior due to the potential effect on the child’s religious upbringing or on the relationship with a parent with certain religious beliefs.  The article includes a brief discussion of the recent Oregon dispute over whether a custodial father’s desire to have his 12 year old son circumcised as a result of the father’s conversion to Judaism could create a basis for a change in custody if the child did not want to undergo the procedure.      

Eugene Volokh provides a great treatment of the First Amendment questions posed in this kind of disputes in his article, Parent-Child Speech and Child Custody Speech Restrictions, 81 N.Y.U. L. Rev. 631(2006).

SOURCE FOR POST: First Amendment Law Prof Blog


An Evangelical Rethink on Divorce?

Divorce_christian_1105 By David Van Biema of

On questions relating to the Bible’s treatment of family and morals, one might expect assurance, if not rigidity, from Evangelical Christianity. So, it may surprise many to learn how "live" the topic of divorce remains in Evangelical circles. Last month, the cover story of the monthly Christianity Today was titled "When to Separate What God has Joined: A Closer Reading on the Bible on Divorce." The heated controversy provoked by the story showed how Biblically flexible some Evangelicals can be — especially when God’s word seems at odds not just with modern American behavior, but also with simple human kindness.

As the article’s author, the British Evangelical scholar David Instone-Brewer, points out, for most of 2,000 years Christians have viewed divorce through two scriptural citations. In Matthew, the pharisees ask Christ, "Is it lawful for a man to divorce his wife for any cause?" Jesus refers to the Old Testament and then replies, "Whoever divorces a wife, except for sexual indecency, commits adultery." The apostle Paul adds in the book First Corinthians that a Christian is "not bound" to a non-Christian spouse who abandons him. Simple, right?

Instone-Brewer radically reinterprets the first passage using, of all things, quotation marks. The Greek of the New Testament didn’t always contain them, and scholars agree that sometimes they must be added in to make sense of it. Instone-Brewer, an expert in Jewish thought during Jesus’s era, writes that Christ’s interlocutors were not asking him whether there was any cause at all for divorce, but whether he supported something called "any-cause" divorce, a term a little bit like "no-fault" that allowed husbands to divorce wives for any reason at all. Instone-Brewer claims Jesus’s "no" was a response to this idea, and that his "except for sexual indecency" condition was not a statement of the sole exemption from God’s blanket prohibition, but merely Christ’s reiteration of one of several divorce permissions in the Old Testament — one he felt the "any-time" advocates had exaggerated. Finally, Instone-Brewer tallies four grounds for divorce he finds affirmed in both Old and New Testaments: adultery, emotional and sexual neglect, abandonment (by anyone) and abuse.