Posted by Eugene Volokh:
"But for the Muslim Faith, the Children Would Have No Faith at All":
http://volokh.com/archives/archive_2008_05_04-2008_05_10.shtml#1210112842
An interesting item from Linnell v. Linnell, 2008 WL 1913991 (Conn.
Super. Apr. 15):
The children, by the parties' agreement prior to their birth, have
been raised in the Muslim faith. The children, or at least Kelsey
at this point, attend weekly religious instruction. They observe
the Muslim holidays, as well as some of the Muslim rules (i.e., no
consumption of pork). The Plaintiff testified that he agreed to
raise the children in the Muslim faith, "so long as we were
married." The Defendant testified that she "wouldn't compromise on
religion." The children's faith should not be premised on the
status of the parties' relationship. Further, the record would
support that but for the Muslim faith, the children would have no
faith at all. Neither party presented evidence that would suggest
their original commitment to raise the children as Muslims should
no longer be honored and respected.
The order isn't clear on whether the court ordered that the father
continue to cooperate in raising the children Muslim. But the
discussion in the opinion very strongly points to this, and I take it
that divorcing parents don't lightly ignore the judge's sentiments as
expressed in the opinion.
Two thoughts about this:
(1) The court says here that the plaintiff agreed to raise the
children as Muslims "so long as we were married." Later, though, the
court says there was a "commitment to raise the children as Muslims."
Is that really accurate? Even if premarital contracts to raise
children in a particular religion are enforceable (as I'm inclined to
say they would be), it's not clear to me that there was such an
agreement.
(2) More importantly, what's this about "Further, the record would
support that but for the Muslim faith, the children would have no
faith at all"? Can that really be a constitutionally permissible
factor? Seems to me that under the First Amendment, the Court may not
prefer one religious upbringing over another (at least in the absence
of some showing of imminent likely harm to the children), a religious
upbringing over an irreligious one, or an irreligious upbringing over
a religious one. Whether it's better to be a Muslim or to have no
faith at all is not a matter for secular courts, including secular
family courts, to decide.
Eugene _______________________________________________ To post, send
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