Freedom of Religion

Father Can't Be Ordered "to Comply With the Cultural Norms of Hasidic Judaism" During His Visitation Time with Children

So holds a New York appellate court.

|The Volokh Conspiracy |

From Thursday's N.Y. appellate decision in Cohen v. Cohen:

We agree with the father that, by directing him to comply with the "cultural norms" of Hasidic Judaism [which were practiced by the parties during the marriage] during his periods of parental access, the Supreme Court ran afoul of constitutional limitations by compelling the father to himself practice a religion, rather than merely directing him to provide the children [age about 5 and 7 at the time of the order] with a religious upbringing (see Cohen v. Cohen, 177 AD3d at 852; Weisberger v. Weisberger, 154 AD3d at 53). While the court referred to the "cultural norms" by which the children were raised, the testimony at the hearing made clear that the "cultural norms" referenced were that each parent would comply with the religious requirements of Hasidic Judaism. Under this Court's decisions in Weisberger and on the prior appeal, the court's directive that the father himself comply with these religious practices was an unconstitutional modification of the religious upbringing provision in the judgment of divorce, which must be reversed (see Cohen v. Cohen, 177 AD3d at 852; Weisberger v. Weisberger, 154 AD3d at 53).

I think this is right, though I disagreed with the appellate court's earlier decision upholding an earlier trial court order in the same case, in which "the father was directed to provide the children with exclusively kosher food and to make 'all reasonable efforts to ensure that the children's appearance and conduct comply with the Hasidic' religious requirements of the [mother] and of the children's schools as they were raised while the children are in [his] physical custody.'" For more on that, see this post.

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  1. Rather unorthodox ruling.

    Mr. D.

  2. compelling the father to himself practice a religion, rather than merely directing him to provide the children [age about 5 and 7 at the time of the order] with a religious upbringing

    I’m not sure I see a distinction between the two.

    1. It’s probably pretty fact-specific. But I can think of lots of examples. The most obvious, to me: giving the children only kosher foods (but he himself can eat whatever non-kosher foods he wants…even in front of the children).

  3. Could this logic be applied to the case where parents were atheists? Could that be used to prohibit a future caregiver from teaching the children religion?

    What I’m really curious about is whether athesism can be considered a religion for civil rights purposes.

    1. I’d like to know what “provide the children with a religious upbringing” means if one is an atheist, which the father apparently is.

      1. What about the reverse? Suppose the father was religious and the mother athiest, and the court order was to bring the children up in a non-religious upbringing.

        I’m asking about symmetry in civil rights for religious and anti-religious beliefs.

    2. For First Amendment purposes, the courts hold that the government cannot prefer religion over non-religion, which has the effect of protecting atheism as if it were a religion. And the problem with all of these child custody cases in which the parents disagree over how the children are to be raised is that the courts should not be in the business of preferring one religion over another — or religion over non-religion. Years ago this very blog discussed a case in which a mother got an order prohibiting a Jehovah’s Witness father from telling the children there’s no Santa Claus, so there you have the courts telling someone they can’t make a true statement.

      The moral to the story is don’t have kids with someone about whom you have fundamental disagreements on things like religion.

  4. As is customary in this type of case, I mostly hope the children can overcome the described parents and parenting.

    If you’re reading this, children: Set out on your own when you can –likely at high school graduation — and build your own life. There is much more to the world than your current circumstances, and you deserve a chance to build a good life.

    1. At least they don’t experience the oppression of having an intact family with two clinger parents teaching them superstition. They have a broken family and get to choose between one clinger parent and another who’s a non-clinger – a much more healthy environment for children, wouldn’t you agree?

      1. At least they didn’t have a bigoted troll like Kirkland for a father.

      2. “They have a broken family and get to choose between one clinger parent and another who’s a non-clinger – a much more healthy environment for children, wouldn’t you agree?”

        I do not agree. I believe the children should depart their current circumstances as soon as practicable and head toward a strong liberal-libertarian campus, a modern and successful community, or — perhaps best — both. There are dozens, perhaps more than one hundred, of colleges and universities that could provide the foundation to enable these children to build a good life despite unattractive childhood conditions. I hope they make it to such a spot as soon as that can be arranged.

        Until then, I hope they make the best of a bad situation that is not their fault.

  5. I too am finding it a bit hard to understand the distinction the court is making between “giving the children a religious upbringing” and “practicing a religion.” I gather the first addresses what the parent tells the children or has the children do; the latter, what the parent does.

    The problem here is the well-known fact that children pay attention to what parents do, not what they say. So a parent who routinely doesn’t do what he or she says isn’t giving the children an upbringing of any kind, religious or otherwise.

    The fact that hair-splitting of this nature has resulted in violation of basic good parenting practices seems to me a problem. If the children are entitled to a religious upbringing, they are entltled to have parents who are reasonably consistent about it. Sort of going along while openly crossing ones fingers behind ones back seems, well, just a childish way to approach things. It will do the children no good.

    1. I think the problem is inherent in precedents that decided that “raising your children in your religion” was part of the free exercise of religion as well as a core parental right.

      I mean, we wouldn’t act this way with adults. You don’t have the right to compel an adult to observe your religious beliefs, period. You don’t have the right to indoctrinate them with false historical claims. You don’t have the right to force them to adhere to false moral beliefs. You don’t have the right to compel them to participate in ceremonies honoring Gods they did not freely choose to believe in.

      But somehow, with children, rather than saying “hey, look, religion’s great, so when people are 18 years old we’ll let them choose any religion they want to and if you can presuade them to join your flock, more power to you”, we recognize this right to do really really bad things to your kids. As if the kids are not even human beings with any rights of their own.

      But once we decide to do that, the logic of cases like this follows.

      1. You don’t have the right to compel an adult to do chores or go to school, either. Not sure how that’s relevant to children, though.

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