Friday, February 29, 2008

Religious Discrimination or Free Exercise?

Eugene Volokh is exercised about a ruling by the Supreme Court of Michigan in a child-custody case, which he characterizes as unconstitutional:
Michigan parents know that, to maximize their chances of keeping custody of their children, they need to go to church more often. A solid violation of the Establishment Clause, I think, plus of the Michigan Constitution's religious freedom provision:
Every person shall be at liberty to worship God according to the dictates of his own conscience. No person shall be compelled to attend ... any place of religious worship .... The civil and political rights, privileges and capacities of no person shall be diminished or enlarged on account of his religious belief.
Volokh's real beef is with the Michigan statute (Child Custody Act of 1970), which spells out the "best interest" factors to be considered in child-custody cases. He specifically objects to the italicized portion of section 3(b):
The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any (emphasis added).
I cannot grasp the basis of Volokh's objection. Neither the statute nor (in what I have read) any court's interpretation of it seems to violate the relevant portion of the First Amendment:
Congress [and by incorporation through the Fourteenth Amendment, the States] shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof....
The Michigan statute wisely gives proper recognition to the importance of religion (among several other factors) in the upbringing of a child. That's all it does.

The clause at issue is not an establishment of religion. It does not force anyone to practice a religion. It simply gives due credit to a parent who continues to raise his or her child in the religion in which the child already was being raised, if any.

The clause at issue does not bar the free exercise of religion. Contrary to what Volokh seems to think, it is not a child's place to dictate his or her religious upbringing. Would Volokh think it good to allow a child to decide (against parental command) to drop out of school at the age of, say, ten? I don't think so. What makes religion different than education? Nothing, except that Volokh finds it objectionable that Michigan's legislature and courts recognize the value of religion in the upbringing of a child.

Volokh, like so many other determined secularists, cannot countenance any governmental act that seems to approve of religion. But, contrary to Thomas Jefferson, there is no "wall of separation" between church and state, as Justice Antonin Scalia reminds us:
The same week that Congress submitted the Establishment Clause as part of the Bill of Rights for ratification by the States, it enacted legislation providing for paid chaplains in the House and Senate.... The day after the First Amendment was proposed, the same Congress that had proposed it requested the President to proclaim “ a day of public thanksgiving and prayer, to be observed, by acknowledging, with grateful hearts, the many and signal favours of Almighty God.”... President Washington offered the first Thanksgiving Proclamation shortly thereafter, devoting November 26, 1789 on behalf of the American people “ ‘to the service of that great and glorious Being who is the beneficent author of all the good that is, that was, or that will be,’ ”... thus beginning a tradition of offering gratitude to God that continues today.... The same Congress also reenacted the Northwest Territory Ordinance of 1787,... Article III of which provided: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”... And of course the First Amendment itself accords religion (and no other manner of belief) special constitutional protection.

These actions of our First President and Congress ... were not idiosyncratic; they reflected the beliefs of the period. Those who wrote the Constitution believed that morality was essential to the well-being of society and that encouragement of religion was the best way to foster morality.
And they were right.