My colleague Rick Garnett and I had a chat about this interesting New Hampshire custody case a few days ago. He blogs on it here. I'm afraid I don't see the dire implications for religious freedom here that Jody Bottum and Rick do.The parents, as far as I can tell, have joint custody of the girl -- according to their custody agreement, the court was to step in if there was disagreement. The court did so. All along, the father objected to home schooling, the mother endorsed it. His objections became stronger over time -- in part because of the religious framework embedded in it.If the mother was raising the child to believe that the father was going to hell--and didn't love her enough because he didn't share her belief systems, it seems to me he has just cause to be concerned. (Suppose the father was Catholic--and the mother was raising the child to believe Catholics go to hell).So here are the questions:1) Is it legitimate, in the course of a custody hearing, for the court to take into account the effect of a religious belief systems on a child's relationship with the non-custodial parent? It seems to me that the answer is yes.2) Is it legitimate for the court, in this context, to have and employ a theory of education--a default understanding of what it means to educate a child to operate in this society, apart from achieving test scores, to apply in the context of familial disputes?. Again, I think the answer is yes.
Cathleen Kaveny is the Darald and Juliet Libby Professor in the Theology Department and Law School at Boston College.