concurring in result.
I concur in the result reached by the principal opinion because all facts (including those pertaining to religion) being considered causes me to be of the firm conviction that the trial court was wrong. The findings and conclusions of the trial court convince me that the trial court concluded that the members of the Jehovah’s Witnesses religion, as a class and because of the tenets of that faith, are unfit to have custody of children, and on that basis denied custody of the children to the mother and awarded it to the father.
However, I disagree with the statement in the majority opinion which appears to foreclose any inquiry into religious beliefs. If religious training or beliefs and practices are not material to the particular point in issue, then, of course, there should be no inquiry into the matter. However, it is impossible to predict what will or will not be relevant when the subject is a domestic dispute and custody of the couple’s children, and the best interest of the children is the criteria for decision. The family relationship is a very close one. Some matters are vitally important to one family and totally unimportant to another. The principal opinion quotes with approval from Stone v. Stone, 16 Wash.2d 315, 133 P.2d 526 (1943), in part, stating, “ . . . but so far as appears from the testimony in this case, the teachings of Jehovah’s Witnesses cannot, in our opinion, be classed in any one of these categories.” (Emphasis mine.)
The Washington court could not have made that statement or reached that conclusion (with which I agree) without there having been evidence as to the teachings and tenets of the Jehovah’s Witnesses religion. That case, therefore, does not stand for the proposition that inquiry as to religious beliefs is foreclosed by the separation of church and state constitutional provisions, but rather for the proposition that the inquiry, when relevant to an issue can and should be made.
The principal opinion says that inquiry into religious beliefs is permissible if the question is whether a parent’s religious beliefs are such that he would refuse to send the child to a school class where evolution is taught. I agree that the inquiry may be relevant in a given case, but why the exception with respect to evolution. This is probably only an example but evidences a value judgment as to a particular religious belief and it points up the fact that we should not foreclose inquiry because to do so is to impose ignorance of material facts on the court. What if a parent — maybe both parents — believe the World was created as set forth in Genesis and that belief is a tenet of the faith they espouse? If they answer the inquiry on evolution as set forth in the principal opinion in the affirmative, does that mean they are unfit and the state should divest them of custody of their children? I don’t think so. The point is that the principal opinion seems to recognize that inquiry, per se, into some religious beliefs is authorized but not others. However, I do not think that judges and lawyers can know which is foreclosed and which is not. The admission of evidence should be governed by the usual evidentiary rules, not arbitrary barriers.
Two recent cases which apply the rule of impartiality between or with respect to religion in child custody matters are Munoz v. Munoz, 79 Wash.2d 810, 489 P.2d 1133 (banc *3361971), and Robertson v. Robertson, 19 Wash.App. 425, 575 P.2d 1092 (1978). It is seen that these cases allowed evidence to be received respecting religious beliefs in order to resolve the issue as to what would serve the best interests of the children; that is, whether attendance at different churches (one with the mother and another with the father) and conflicting religious tenets would cause harm to the children. In both cases the courts held the children’s general welfare would not be harmed. Again, however, the court received the evidence in order to decide the issues. I believe it is not sound to expect the right result under the constitution and laws to be reached by forbidding a trial court to hear evidence on matters that are obviously of importance to the litigants and to the welfare of the children. To mandate such a procedure encourages those who wish to conceal relevant and material matters to do so under the guise of “religious beliefs”. Nor is it conducive to correct decisions to mandate a barrier against evidence for fear the trial court will act in violation of the constitution if he hears the evidence.
The trial court must, and in my opinion constitutionally can receive evidence upon all those matters touching upon the rearing of children, including religious beliefs or practices, in order for the trial court to perform its function of acting in the best interests of the child.
This court has now said, and the trial courts now know they cannot favor or disfavor one religion over another, as-such, nor can a judge’s personal evaluation of the propriety of certain religious beliefs form the basis for awarding custody of children. That, in my opinion, is sufficient to decide this case. I would not arbitrarily cut off inquiry into what may be an important area in a future child custody case and thereby require the judge to act in ignorance of relevant facts.