Or else. That’s what I thought when I read about John and Cynthia Burke, after someone linked to the article in a comment on my post at Pam’s.
After six years of childless marriage, John and Cynthia Burke of Newark decided to adopt a baby boy through a state agency. Since the Burkes were young, scandal-free and solvent, they had no trouble with the New Jersey Bureau of Children’s Services—until investigators came to the line on the application that asked for the couple’s religious affiliation.
John Burke, an atheist, and his wife, a pantheist, had left the line blank. As a result, the bureau denied the Burkes’ application. After the couple began court action, however, the bureau changed its regulations, and the couple was able to adopt a baby boy from the Children’s Aid and Adoption Society in East Orange.
Last year the Burkes presented their adopted son, David, now 31, with a baby sister, Eleanor Katherine, now 17 months, whom they acquired from the same East Orange agency. Since the agency endorsed the adoption, the required final approval by a judge was expected to be pro forma. Instead, Superior Court Judge William Camarata raised the religious issue.
Inestimable Privilege. In an extraordinary decision, Judge Camarata denied the Burkes’ right to the child because of their lack of belief in a Supreme Being. Despite the Burkes’ “high moral and ethical standards,” he said, the New Jersey state constitution declares that “no person shall be deprived of the inestimable privilege of worshiping Almighty God in a manner agreeable to the dictates of his own conscience.” Despite Eleanor Katherine’s tender years, he continued, “the child should have the freedom to worship as she sees fit, and not be influenced by prospective parents who do not believe in a Supreme Being.”
It was quickly pointed out that the story, which rocketed around the blogosphere and appeared on blogs like Pharyngula, is from 1970 and some technical glitch caused the Time website to publish the story with a current date. And it would be easy to dismiss the uproar about the story as much ado over nothing. But that means avoiding an important question.
Why was this story so believable now, more than 30 years after it happened? Why is it so easy to believe that it could still happen today?
For gay parents, this is old hat. But this stuff trickles down. Sure, Catholic Charities think gay people shouldn’t be parents. But another Christian adoption agency decides discriminate against Catholics as adoptive parents. Even “embryo adoption” means having to pass a religious test. A program supported by president Bush as a matter of policy discriminates against any adoptive parents who aren’t conservative Christians.
Couples must agree to adoption-like procedures: receiving families are screened and must undergo counseling, and Snowflakes allows donating and receiving families to designate criteria for each other, meet and maintain contact after birth. Adopting couples must agree not to abort any embryos.
Those conditions were fine with Bob and Angie Deacon of Virginia Beach, Va., who donated their 13 embryos after having twins and being discouraged from another pregnancy by a doctor. “With another program, to be honest with you, they could have been adopted by lesbian parents, and I’m totally against that,” said Mr. Deacon, 35.
It took two and a half years to bring themselves to fill out the papers. On their forms, they said the adopting family must be conservative Christians and, ideally, include a stay-at-home mother.
The truth is that your religious beliefs, or especially your lack thereof, can call your ability to parent, the quality of your parenting, and your right to parent your own children into question. Still.
It’s an old practice and an old problem; one much older than the Burke case that got resurrected when a technical glitch at Time caused it to be published with a January 2008 date, and one that’s still with us. Friendly Atheist posted about a case going back to the 1940s, and back in 2005 Eugene Volkoh posted about more recent cases.
Here’s an example that I think is particular egregious: The discrimination in favor of religious parents and against irreligious ones, or in favor of more religious parents and against less religious ones, in child custody cases, on the theory that it’s in the child’s “best interests” (that’s the relevant legal test) to be raised with a religious education.
Mississippi is the most serious offender, though I’ve seen cases since 1990 in Arkansas, Louisiana, Michigan, Minnesota, Pennsylvania, South Carolina, South Dakota, and Texas; there are similar cases in 1970s Iowa, Nebraska, North Carolina, and New York. (I give cites below.) In 2001, for instance, the Mississippi Supreme Court upheld an order giving a mother custody partly because she took the child to church more often than the father did, thus providing a better “future religious example.” In 2000, it ordered a father to take the child to church each week, as a Mississippi court ordered in 2000, reasoning that “it is certainly to the best interests of [the child] to receive regular and systematic spiritual training.”
Compare Volkoh’s summary of the Mississippi Supreme Court’s rulings in 2000 and 2001 to the judge’s ruling in the Burke’s 1970 case, and then tell me that the uproar over the mistakenly published Time article is a needless bunch noise about old news. Volkoh, a UCLA law professor, documented a pattern of such decisions in a 2006 article (PDF).
Austin Cline summarized some of those cases at his About.Com blog, and posts letters from parents whose lack of religious beliefs or even regular church attendance lost them custody of their children, as well as the judge who forbade divorced Wiccan parents from teaching their son their Wiccan beliefs, until state appeals court overruled him.
Cline also posted a quote from an interview with a “10 Commandment Judge” which suggests that non-Christian parents appearing before him may be S.O.L. on child custody.
TNA: You were quoted in the national media as believing that the Ten Commandments represent the truth “and you can’t divorce the law from the truth…. The Ten Commandments can help a judge know the difference between right and wrong.” Have you had any difficult cases in your career where your reliance on the truth of the Ten Commandments or on the truth found in the Bible has helped clarify your thinking and made your decision easier?
Judge McKathan: Absolutely! It can arise in many different ways but one of the areas where this comes up most frequently is in making child custody decisions. Without some guiding principles, how do you decide what is in the best interest of the child? I often use this example — and I haven’t seen anybody publish it yet — if you had a child custody case in which the parents appeared otherwise equally able to parent the child but one was a Christian or a Jewish person and the other was a Satanist, who do you give the child to? The answer to that question is a religious answer. You seldom have that extreme, but you have variations of that issue that arise in child custody cases. That is just an extreme example but the principle comes up in all kinds of situations of the law.
That was as recent as 2005. Then there was the 2006 case of Rachel Bevilacqua, whose membership in the parody religion Church of the Sub-Genius caused her to lose custody of her son. Her crime? Poking fun at religion. Besides calling her “mentally ill,” and a “pervert” the judge ordered her to have absolutely no contact with hers son, and to stop writing about her case on the internet. (That was perhaps due to the uproar caused when Boing Boing featured a post about the case.)
The most recent update in Bevilacqua’s case is that she has been granted temporary custody of her son, while her ex serves out a 1 year jail sentence for drunk driving, and her case will ultimately be decided by the same judge who took away her custody, gagged her from writing about the case, and recused himself only to later take the case off another judge’s docket and put it back on his own. Meanwhile Bevilacqua is prohibited from having any Sub-Genius materials in her home.
Finally, just last week, Ed Brayton posted about two more cases; one in which custody was awarded to a father because of his Orthodox Jewish faith, and involving a friend of his who lost custody because she wouldn’t make the kid go to church.
I’ve got a friend in New York who just went through this and I’m gathering all the legal documents to publicize that case. The outcome was beyond outrageous. The mother, who had full custody during the divorce and custody fight, lost custody because the father would make the child attend church while the mother would not.
This despite the fact that the father had multiple drunk driving arrests and even admitted under oath that he still drove with the child in the car after drinking. This also despite the fact that he had a history of violence, enough to warrant a personal protection order granted to the mother. But the judge felt that raising the child in a “Christian” environment trumped all of that.
And from there it’s not a far leap to discrimination against gay & lesbian parents in custody matters. The same basis, religious belief, used to conclude that drunk driving church-going parent is better than a sober non-religous parent is also used to conclude that a dad who’s a convicted murderer is better than a lesbian mom. On the same basis, Sharon Bottoms was denied custody of her son.
The point is, the Burke’s case happened thirty years ago, but in many ways it’s still going on today. It just took a minor technical difficulty at Time to remind us.