Contracts and the Constitution in Conflict: Why Judicial Deference to Religious Upbringing Clauses Infringes on the First Amendment

Contracts and the Constitution in Conflict: Why Judicial Deference to Religious Upbringing Clauses Infringes on the First Amendment

Article By: Elica Zadeh

47 PEPP. L. REV. 777 (2020)

When a Hasidic person files for divorce under New York law, either party to the marriage may invoke a declaratory judgment action to establish certain rights in a settlement agreement. If children are involved, such an agreement may include a religious upbringing clause, dictating that the child is to be raised in accordance with their then-existing religion—Hasidism. Deviation from the contract risks removal from the aberrant parent who intentionally or unwittingly allows the child to wane into secularism. Although the child’s best interest is the cornerstone of custodial analysis, a problem emerges when his or her best interest is couched inside a religious framework, frequently leaving the court upholding continued Hasidic practice above all else. Because the First Amendment requires government neutrality in religious disputes, a contract mandating religious enforcement leaves the court in a bind, stuck between a constitutional rock and a religious hard place. This Note explores the potential constitutional and contractual conflicts implicated by enforcing religious upbringing clauses in child custody disputes, specifically in lower New York courts, as a result of deferring to religious upbringing clauses.

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