Legal Commentary

Washington Court of Appeals Overturns Apparent Discrimination Against a Non-Religious Parent

By Eugene Volokh

From In re Marriage of V.I. Balashov:

With one exception, the parenting plan provides that major decisions regarding each child ? including such matters as education, nonemergency health care, and travel outside the United States ? are to be made jointly. The one exception stated in the plan is for religious upbringing. The plan assigns this area of decision-making solely to Vicki: ?As to the mother?s ability to make sole decisions regarding religious upbringing, the court finds that the father does not have a religion, and the mother has brought the children up in the Orthodox Christian religion without objection from the father.? Dimitrichallenges this limitation on his decision-making authority and asks that it be stricken from the parenting plan.

To protect parents? respective constitutional rights to the free exercise of religion, Washington courts hold that a parent?s decision-making authority with respect to religious upbringing may not be restricted unless there is ?a substantial showing of actual or potential harm to the children from exposure to the parents? conflicting religious beliefs.? The court emphasized that ?religious beliefs? should be interpreted in the broad sense of ?world view? and that a parent?s lack of religious belief receives the same amount of protection as any particular religious belief.

Here, the trial court made no finding of actual or potential harm that would result from exposing the children to conflicting religious beliefs. Accordingly, we conclude the trial court erred in granting Vicki sole decision-making authority with respect to the religious upbringing of the children. The parenting plan must be amended to give both parties joint authority on the same basis as was done with other major decisions.

Sounds right to me.

Full post as published by The Volokh Conspiracy on February 04, 2010 (boomark / email).