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Sapere aude - dare to be wise
Thursday, May 26, 2005
The Divorced Parents' Right to Free Exercise of Religion?
Posted 3:28 PM by Brian D.
The front page of the Indianapolis Star has an article concerning Cale Bradford, Chief Judge of the Marion County Superior Court, retaining a provision in a couple's divorce decree preventing them from teaching their common religious beliefs to their son. The religion is Wicca, "a contemporary pagan religion that emphasizes a balance in nature and reverence for the earth."

Judge Bradford inserted the provision preventing the divorcing parents, the Jones, from exposing their 9 year old son to "non-mainstream religious beliefs and rituals." A confidential report from the Domestic Relations Counseling Bureau, whose duty is to provide recommendations to the court on child custody and visitation rights stated, "There is a discrepancy between Ms. Jones and Mr. Jones' lifestyle and the belief system adhered to by the parochial school [a local Catholic school the child attends]. . . . Ms. Jones and Mr. Jones display little insight into the confusion these divergent belief systems will have upon (the boy) as he ages[.]"

[Editorial note: how many of you know someone that attended a religious school that was of a different faith than the student? That is not an uncommon situation.]

"Religion comes up most frequently when there are disputes between the parents. There are lots of cases where a mom and dad are of different faiths, and they're having a tug of war over the kids," says Kenneth Falk, legal director of the Indiana Civil Liberties Union. "This is different: Their dispute is with the judge. When the government is attempting to tell people they're not allowed to engage in non-mainstream activities, that raises concerns."

Most states, including Indiana, allow parents who are awarded physical custody of children to determine what religious training, if any, they shall receive. As a general rule a court steps in only when the danger exists to the child's physical or emotional health.

Our own Constitutional Law Professor David Orentlicher believes the provision to be"blatantly unconstitutional. . . . Obviously, the judge can order them not to expose the child to drugs or other inappropriate conduct, but it sounds like this order was confusing or could be misconstrued." The purported vagueness of the provision concerns Jones and the ICLU. They "argue the order is so vague that it could lead to Jones being found in contempt and losing custody of his son."

Wicca is a nature-centered belief system, not a centralized religion. Wicca is observed by approximately 50,000 Americans. The U.S. government recognizes Wicca as an official religion and includes it in reference texts such as the U.S. Army Chaplain's Handbook.

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