A custody case involving a Pagan mother I mentioned on this blog a couple months ago, has gained the attention of big-time legal/political blogger Eugene Volokh who posted about the issue at The Huffington Post.

“The father may indeed have been a more suitable parent on some grounds, for instance if the mother and her fiance indeed used illegal drugs (though note that the drug use is listed as just one item among many, including the paganism), or if the mother’s online time materially affected the time she spent with her daughter (though I assume that if the mother’s problem was that she left her daughter unattended, for instance, the court would have said that rather than just pointing to her “spend[ing] a great deal of time online”). But the reference to mother’s paganism – and the view that pagans may be denied custody because their open practices risk “exposing such lifestyle to [their] child[ren]” – strikes me as a clear First Amendment violation.”

Oddly, Volokh, a libertarian legal scholar, is far more concerned about the First Amendment violations in this case than many of the Pagans reacting to it on The Witches Voice.

“I can tell you that this one was not decided based on paganism. The headline is, once again, an attention-grabber. Who would be excited by another “mother loses custody of children due to drug use and sado-masochistic behavior on her part and her fiance’s part”

The problem is that anyone can look at this case and see “drug use” and all other points become moot to the casual observer. But Volokh points out that the recreational drug-use was simply itemized along with the mother’s Paganism and her enjoyment of sado-masochism.

“[M]other and her boyfriend have a perfect right to engage in sado-masochism, paganism and their chosen sexual orientation, but nevertheless, this Court is not convinced that [they] would exercise the due diligence that is required to engage in those practices without exposing such lifestyle to the parties’ child[ and thus] adversely affect[ing]the best interests of [the child, a 4-year-old girl].”

A legal scholar (who isn’t a Pagan) is troubled by this ruling, shouldn’t we be more worked up about this? What if there was no drug use? Should a openly kinked Pagan bisexual blogging mom be denied custody of her child? Shouldn’t she at least be granted a new trial free from her religion being used as a strike against her?