I don't think it is a difficult question but disagree that the rule is sound. The standard should be the best interest of the child. Stability in an extremist religion is often not in the child's best interest, especially if the child is a girl. For example, the FLDS. The best interest of the child can also trump mainstream religions depending on the facts of the case. The focus must be the child.
This sort of assumption that religious status quo is a social good is an unconstitutional preference for religion. This is a good example of when the application of a neutral generally applicable principle can serve the greater good more directly than a religious preference. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University New York, NY 10003 On Apr 20, 2012, at 9:09 AM, "Volokh, Eugene" <vol...@law.ucla.edu> wrote: > There's an interesting op-ed at > http://blog.nj.com/njv_guest_blog/2012/04/among_nj_orthodox_jewish_women.html > that faults the child custody law preference for stability of religious > upbringing: When women leave arranged marriages in the ultra-Orthodox Jewish > community -- and leave ultra-Orthodoxy more general -- they may sometimes > lose custody of their children on the grounds that the person who remains > within the community is more able to provide stability of religious > upbringing. > > I'm inclined to say that this rule (which of course could equally apply to > fathers who leave a religious community as well, though I don't know how > relatively frequent such departures are) is a sound one, for children who are > old enough to have some experience with the religion and thus some stake in > stability of religious upbringing. To be sure, the rule does create some > pressure against departing the faith, since often someone who leaves the > group can no longer raise the children in the same religious environment even > if she's willing to, because the group might no longer accept her; but this > seems in this situation to be an acceptable and denominationally neutral rule > (especially if it is equally applied to a parent who moves into a > ultra-religious community which disrupts the stability of the children's > nonreligious, or only mildly religious, upbringing). But I still thought I'd > mention the op-ed, in case people think it's a difficult and interesting > question. > > Eugene > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are posted; > people can read the Web archives; and list members can (rightly or wrongly) > forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
