which involved divided religious loyalties within one troubled
family, illustrates what a socially and legally sensitive identity
marker religion was in the 1930s, and how significant it was
for questions related to the custody, care, and placement of
children whose parents did not offer adequate care and support.
Written by Judge Justine
Wise Polier shortly after her appointment to the Domestic Relations
Court of New York, this case solidified her reputation as a critic
of matching and earned her
the enmity of the Catholic church, which considered the opinion
an attack on the sectarian tradition of Catholic charity. Polier
argued that matching amounted to government-sponsored discrimination,
violated the constitutional separation of church and state, and
rejected the idea that children were the permanent possessions
of either parents or faith communities. It is also clear from
this excerpt that she took children’s own autonomy seriously,
considered their views (when they were old enough to express
them confidently), and did not believe that families had to be
places where a single faith prevailed. The opinion drew support
v. Jamrock, among other legal precedents.
Under the circumstances, on an application of two institutions
[one Catholic and the other Protestant] to be relieved of the care
of four neglected children because of conflict over their religious
education, the oldest son of the children of a Mohammedan father
and Roman Catholic mother will be paroled to the home of his parental
uncle, a Mohammedan, with the understanding that his placement will
be carefully watched and that arrangements will be made for weekly
visitations to the mother, where it appears that this son, of the
age of fifteen years, has indicated that he is eager to go into
his uncle’s home, that it is his father’s desire that
he should, and that the mother has agreed to this placement.
The three younger neglected children, who cannot be placed in any
relative’s home, will be placed in a Protestant foster home,
a neutral meeting ground for the separated and hostile parents,
under the supervision of the court, with the understanding that
there will be no religious instruction given to them by the foster
parents. The mother is to be permitted to take the oldest daughter
of the three, who is thirteen years of age and who has indicated
clearly her preference for her mother and her mother’s religion,
with her to the Catholic church. The father is to be permitted to
take the two younger children with him to the Mohammedan church. . . .
Happily for us the American tradition of religious freedom and
freedom of conscience demands that all religious groups shall be
treated with respect and as equal in standing before the law. . . .
This court is, therefore, happily relieved of having children made
the subject of a religious controversy in any cases except rare
ones such as the one now before the court, where in the process
of saving the children from parental neglect, the court must also
decide rival claims as to religious education between separated
and hostile parents. There are no interests entitled to consideration
except those of the parents and the children.
In the case now before the court, the mother, a member of the Catholic
faith, was married to the father, a member of the Mohammedan faith,
by a Protestant minister in 1920. There is no evidence of any antenuptial
agreement as to the religious education of the children. After the
birth of the oldest boy, the mother had him baptized within the
Catholic church without the knowledge of the father and against
his expressed wishes, during a period of the father’s desertion
of the home. Subsequently, after the birth of the next two children,
the father had them inducted into the Mohammedan faith in the presence
of the mother but also against her wishes. . . .
The rights of the parents in regard to their minor children has
long been recognized, but there is no right in any church to compel
continued adherence. . . .
The children in this case were first brought before the court when
the home was finally broken up through the serious illness of the
mother. At that time the mother brought the children to the court
alleging that the father was unfit to care for the children in her
absence. The court made a finding that the children were neglected
and in need of the care and supervision by the State, and temporarily
placed them in a Catholic institution so that they might remain
together. The court, however, directed that no religious instruction
should be given to the three younger children who were not Catholics.
When this placement by the court met with the violent opposition
of the father, the court agreed to transfer the four children to
a Protestant institution as the most neutral place available. . . .
The extent of the injury to the children which must inevitably
follow from such a situation can hardly be estimated and outweighs
in importance the legal rights of either parent in regard to the
determination of the future placement of these children. . . .
In an effort to determine what is most likely to make for the
welfare of these children, the court examined the children in the
absence of both parents. The oldest boy, who is now fifteen years
of age, is clearly determined to follow his father in the Mohammedan
faith. The oldest girl, who is now almost thirteen, is equally sure
that she wishes to attend the Catholic church with her mother. The
two younger children, who are nine and five respectively, are too
young to be seriously concerned with the problem.
Some courts have held that when a child reaches “years of
discretion” the leaning of the child should be considered.
Other courts have been reluctant to consider the preference of children
on the ground that they are unable to evaluate the comparative merits
or meaning of religious faiths. It is clear that there can be no
arbitrary rule by which any court can determine when a child reaches
“years of discretion.” It is also clear that the capacity
for an intellectually correct evaluation of differing religions
is not the touchstone to religious faith in either children or adults. . . .