The Volokh Conspiracy

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Religion and the Law

Judicial Discrimination in Favor of the More Religious Parent


From Tilley v. Gibbs, decided yesterday by the Mississippi Court of Appeals:

John and Tiffany were married on April 6, 2019, in Lowndes County, Mississippi. The parties had one child, V.G., born prior to the marriage on December 19, 2018. On December 14, 2021, John filed his original complaint for divorce against Tiffany…. On September 16, 2022, the chancery court issued its opinion and final judgment, granting an irreconcilable differences divorce, awarding joint legal custody with John being awarded physical custody. The court awarded Tiffany visitation and ordered her to pay child support of $490.00 per month….

The court went through the various factors that Mississippi courts consider in child custody cases; but I thought this was particularly noteworthy:

Tiffany also asserts that the home, school, and community records should have been deemed a neutral factor because the chancellor relied on two issues she believes do not favor either party—John's church attendance and her potential move. In support of her position on appeal, she highlights only a portion of the relevant evidence submitted at trial, including that they did not go to church often while married, John only began attending church more regularly after the separation, and John previously indicated to her that he was an atheist. She further argued that her admitted plan to relocate should not be held against her because the specifics of it require speculation at this juncture.

In evaluating part of this factor, our "supreme court has affirmed that a chancellor may consider the issue of religion when determining custody." Davidson v. Coit (Miss. Ct. App. 2005) (quoting Weigand v. Houghton (Miss. 1999)). Evidence has previously been considered to weigh in favor of a parent, such as "a father[,] who took his child to church." Montgomery v. Montgomery (Miss. Ct. App. 2009) (citing Pacheco v. Pacheco (Miss. Ct. App. 2000))…

After reviewing the evidence as a whole, the chancellor noted that John has been taking V.G. to the same church for years and that Tiffany stated she "does not attend church now, as I don't feel it is required." Further, this was not the only basis for the chancellor's ultimate ruling on this factor, as he also concluded that John plans to remain near V.G.'s family and friends while Tiffany plans to move to a different state were persuasive. We find sufficient evidence was presented to support the chancellor's decision to weigh this factor in John's favor.

Such consideration of the parties' churchgoing strikes me as a violation of the First Amendment, for reasons I discussed in this article. Perhaps the custody decision in John's favor was sound for other reasons; but I don't think the question of which parent is the more religious—or the more regular church attendee—can be a permissible factor here. To quote Bonjour v. Bonjour (Alaska 1979), which strikes me as taking the correct approach (and indeed one that remains correct despite the changes in Establishment Clause doctrine since),

According a preference in child custody proceedings to parents who are members of an "organized religious community" violates that strict neutrality which the branches of government, including the judiciary, must assume in considering religious factors.

To be sure, a parent's religion might sometimes be relevant in light of the other custody factors, such as a mature child's preferences:

A child's religious needs or preferences may enter into the custody equation in a variety of different ways. For instance, if a court determines that a fifteen-year-old child is a devout adherent to a particular religion or is otherwise deeply religious and that one parent will provide the child greater freedom in his or her pursuit of religious enlightenment, then the court may consider this as a factor in awarding custody. In order to avoid running afoul of the establishment clause, however, the statute cannot be limited to consideration of the formal religious needs of the child. A fifteen-year-old child might conceivably have developed a profound aversion to formal religious training of any sort. If a court finds this to be the case, then in awarding custody, the court may take into account the fact that one parent has shown a greater willingness to respect the child's opposition to formal religion.

The primary goal of the court in awarding custody is to further the best interests of the child, which includes respecting the beliefs of a mature child, whether they be religious or non-religious. So long as a court makes findings as to a child's actual needs respecting religion, the court may consider such needs, as one factor, in awarding custody.  In such consideration, the court, however, may not substitute its own preferences, either for or against a particular type of religious observance, but must retain a strict neutrality.

But neither this nor any other factor—other than the judiciary's mere preference for churchgoing over non-churchgoing—seems applicable here. [UPDATE: I originally wrote "judge's mere preference" here, but on reflection (with thanks to commenter QuantumBoxCat) I realize this suggests the error is this particular judge's; I'm referring here to what the Mississippi legal system is doing more broadly, so I've changed this to "judiciary's mere preference."]