Monday, March 01, 2010

Religious Freedom Violation or Just Jail Time

So, a father may spend 60 days in jail for violating a court order barring him from exposing his child to a religion other than Judaism (the mother's religion).

Below is a summary of the facts, along with references. Please, correct me, if you feel I am misinformed.
1) A Jewish gal marries a Catholic guy. Neither is practicing, except occasionally. He's an Afghanistan veteran. She's a law school student. Her family has money (her dad is a lawyer for Playboy). His family doesn't have money.
2) Guy marries gal in Jewish ceremony.
3) Gal's parents provide pecuniary support in the early years of marriage while the gal goes to law school and the guy tries to get a job and figure out what to do for a living as a civilian.
4) Guy and gal have kid. Still, no regular church practice in the home according to him. They only attend synagogue or mass on high holy days. Gal claims more regular practice as Jewish family, but this is unspecified, as near as I can tell.
5) Guy converts to Judaism in order to smooth things over with the in-laws (his version). Gal claims no pressure. Guy says he never stops practicing his faith (praying, attending mass on high holy days, etc.)
6) Gal changes cell phone contract to cut off guy from info as well as how she dresses for work. She cheats on husband and is caught with numerous incriminating e-mails.
7) Gal leaves guy and goes to her parents' place. Guy shows up with police accusing gal of kidnapping their child.
8) Gal cuts off husband from child for 7 month stretch at one time. (Only one reference for this.)
9) Guy sues to obtain some visitation rights to his daughter.
10) Guy is said by court to have psychological problem. I don't quit know how to describe this, since no evidence of such a problem is given that I could find.
11) Gal gets the house, car and primary custody of the kid. Kid attends private Jewish preschool which gal or her parents pay for.
12) Guy has child baptized.
13) Guy sends pictures of ceremony to mom. He says it was because she had asked for pictures. She says it was retaliatory and vindictive.
14) Court forbids guy from exposing his daughter to any religion other than Judaism. Judge in case is former President of Decalogue Society, the Jewish bar.
15) Guy defies court order. Says it is a violation of his basic religious freedoms and invites news cameras to accompany him to a mass at the Chicago archdiocesean cathedral.
16) Court slaps guy with 60 days in jail.
17) Guy successfully files to have judge removed from case. New ruling is pending (due tomorrow, March 2, I think).

References for facts of case at bottom:
There are so many places to go with this case, it is tough to know where to begin. I will start by laying out the big questions, as I see them.

A) Under what circumstances would the court be able to justly forbid exposure to any religion but one single parent's religion?
B) What would could justly constitute unlawful exposure? Examples listed in what I presume would be least offensive to most offensive.
B1) Prayer before meals?
B2) Prayer before bed?
B3) Attending church as a family (is this a babysitting requirement if the guy wants to go himself?)
B4) Reading a particular religion's Scriptures to the Child?
B5) Having the child circumcised or baptised, in the context of a religion that teaches such actions are indicative of the parent's faith?
B6) Having the child go through some ceremony that is supposed to be indicative of the child's faith?
B7) Exposing the child to propaganda aimed at denigrating the other parent's faith?
C) Does the guy's conversion count for anything? If so, who determines this? His is certainly never considered by the Catholic Church to lose his standing as a Catholic and continues his practice pretty much as before. The Jews consider him one of their own, I suppose, too. He occasionally practices both faiths.
D) In the case of dual-religious homes, what is healthy? Is it healthy to only have the child exposed to one religion? Is it healthy to have the child exposed to both religions? Who has the right to determine this?

I'd ask whether the father was justified in his actions, but there's so much he-said/she-said in this case, that it would be pointless to do so until a basic understanding of underlying principles and the facts of this case was established. It would probably also be more informative to ask people, what the facts would have to be for the man to be justified or not justified in his actions. I posted this first on Facebook gave it up for Lent and was actually pretty disappointed in some of my "friends' comments", one of which I had to delete because it totally misrepresented and twisted what I had stated. I think this is probably a better forum, since the people who post here tend to be much more thoughtful in their responses. My apologies for any overlap, to those who are (semi-)active in both forums.

References in no particular order:


MamasBoy said...

A and D) Basically, I don't think the court has any right to arbitrate that only one parent gets to have a religious voice in the child's life. I lean strongly libertarian in this area. Obviously, this is a broad statement, so some clarification is necessary.

Probably what boggles my mind the most, having grown up in a dual-religious family, is that a judge thinks exposure to multiple religions is ipso facto harmful to a child. I see no reason why a child can't be exposed to multiple religions and make up his or her own mind as they get older. In fact, I think that in households of two religions, whether divorced or together, it is actually healthier to learn about both religions, so that one can understand where each parent and side of the extended family is coming from. Much of this stems from my own philosophy that ignorance is much more harmful than knowledge. For the court to say that normalcy requires exposure to only one parent's religion strikes me as rather backward, to be honest. It makes me wonder if this judge isn't some transplant from the 15th century, when the state considered their subjects' religion to be a matter of state importance. Obviously, both parents should show respect for the other parent's religion and not expose the kid to harsh anti-Christian or anti-semitic propaganda, but that is a separate issue which the judge did not address.

B) Also, when I read the that the court order forbade "exposure" to the father's religion, that struck me as incredibly broad, covering all sorts of things, from Sunday mass to prayers before bed and before meals. When I read a court order that basically says a parent has to hide their religion from their child, that strikes me as over-reaching in a big way. Basically, I don't think a parent should force their child to make up their mind about religion one way or another, but if all it involves is going to a service and observing or being baptized/circumcised as a young child when the question at hand is the parent's faith and not the child's, then I don't think the state has any business in telling a parent what they can do one way or another. Thus I think that B1-B5 are matters which the court has no business interferring in, while B6-B7 would require some sensitivity.

MamasBoy said...

C) I don't think the guy's conversion should count for much, if anything, in this case. First off, he never stopped praticing his faith and was never considered by the Catholic Church to have removed himself from membership. Secondly, it seems pretty clear, if the guy is at all believable, that he was under pressure to conform to his in-laws wishes. They were providing for his young family monetarily while his wife was in law school and seemed to have pretty strong opinions about what a husband should be, religion-wise, that they made clear he had never measured up to. The guy didn't convert at the start of his marriage, but toward the end, which indicates to me a last-ditch effort to make it work, even if it involved a little self-delusion/compromise with his in-laws on religious practice.

On a related note, assuming half of what the guy says is true, then this judge's decision strikes me as terribly arbitrary, in choosing one religion over another in exclusivity. Given that he forbids even exposure to any othe religion than Judaism, it strikes me that the judge let his religious devotion and presidency of the jewish bar cloud his decision-making. I think the best chance both parties have of a fair, unbiased trial is to get a 2nd generation hindu or agnostic judge. I've seen little evidence in my own life that most people with ties one way or the other are unbiased. I've yet to meet a Protestant that agrees with the guy, nor a Catholic who thinks he was unjustified in his actions, indicating a deep cultural divide that tremendously colors people's perceptions of the various parties' actions. Frankly, I doubt the Jewish judge who ruled against the guy will be reelected, after so blatantly and ignominiously pissing off the Catholics in Chicago over such a sensitive topic. Catholics are used to such rulings coming out of courts in Asia, the Middle East or old Mexico, but not the US. To rule that merely taking a child to mass is legally defined as "harmful" is considered by pretty much all Catholics to be an outrage.

MamasBoy said...

Lastly, it appears to me that the guy got royally screwed in the divorce settlement. She and her dad were lawyers. He wasn't and lost everything despite her being the one to both cheat and initiate the divorce. Typically, those aren't winning arguments for keeping the kid and possessions, rather than splitting them evenly. This is probably one reason he's studying to be a lawyer, currently.

Kevin said...

Eugene Volokh periodically comments on cases similar to this, and my first inclination is to consult his site, but I haven't seen him mention this case yet.

Two principles I've taken away from reading similar cases are:

(1) Pursuing judicial resolution of subjective matters leads to judges making subjective decisions that is prone to stepping beyond the proper role of government.

(2) Absent evidence of harm to the best interests of the child, a judge should equitably and impartially compromise. This extends from (non-) religion to culture to sexual orientation to everything. We all have subjective inclinations and our own subtle notions of "best interests" (some may be correct but unproven, others may be incorrect even though we prefer them), but if we can't evince a greater likelihood of harm, we should probably apportion control equally.

I've only read your summary of the case, but if I overlook the questionable and hazy parts, I'm inclined to agree with you about coming to some compromise where the child can be exposed to both Judaism and Catholicism, assuming it is done peaceably. It'll be an imperfect compromise, but that seems better than alienating one parent entirely without a substantial reason.

However, I'd reconsider my opinion if some of the haziness were cleared up:

- Is the father sincere in his beliefs? His willingness to convert might speak to this, or, as you said, it might have been due to overwhelming pressure.

- Did the father use the baptism to gall his wife? This also might point to insincerity or at least an unhealthy dynamic using religion as a weapon.

- Does the father really have psychological problems that will harm the child? Is this why the mother got primary custody?

My guess is that the judge was convinced that the father was insincere and possibly even unstable.

I don't really understand the divorce settlement either; it seems like there's more to the story. If her parents paid for a portion of their living expenses and possessions, I can see it tilting proportionately in her direction.

Regarding your questions:

A) In custody disputes, I think a judge could justly forbid one parent from exposing the child to a religion if that exposure harms the child. The use of religion to gall the other spouse might qualify as harm. The child's "best interests" criteria is the difficult part for me since it can signficantly lower the bar from actual harm to "what's a little better or worse". Of course, outside of such suits, I think the barrier for intervention by the government should be very high.

B) B1, B2, and B4 seem less official, so I'd probably let them slide, particularly considering the potential for overlap between Judaism and Christianity.

C) "Does the guy's conversion count for anything?" I don't know. On the one hand his flip flop might be indicative of insincerity. On the other hand it might be indicative of bending to intense pressure. The judge determines this, whether he's right or wrong.

D) A common religion reduces the likelihood of it being a point of contention, which is ideal. But, if it never becomes a significant point of disagreement and the two religions can be reasonably reconciled, a dual religious upbringing isn't inherently bad; it can even have good qualities over a purely homogeneous exposure. The parents should determine this together. If they sue, it becomes the unfortunate job of the judge.

Interesting case, MB. Thanks for sharing it.


purple_kangaroo said...

How sad. I think it does depend to some extent on the practices in question and, as Kevin said, whether they are harmful to the child.

Circumcision to me seems like a very different thing than baptism or praying, because it is a permanent physical change, actually removing a body part (genital mutilation), that cannot be undone, and that the child has no choice in. I think that is something that should not be done if either parent or the child is against it, no matter what the religion.

I can see a parent wanting to bar the ex-spouse from forcing the child to participate in rituals or activities that they felt were harmful. I can even imagine situations where it would be appropriate for the court to get involved, when there was a custody dispute. But I also think that in most cases it is NOT a good thing for the court to be making such rulings. As you pointed out, MamasBoy, it can very easily be carried too far. Would a court forbid a woman from wearing a hijab because the father didn't want the child exposed to her religion? A Christian parent from having a Bible in the house where a child can see it?

There is really no easy answer. The answer I always feel tempted to give in these cases is, "Don't marry someone with whom you disagree on something as important as religion in the first place," but of course that kind of advice is always too little too late. :)

MamasBoy said...


Interesting point on circumcision. Though I don't view circumcision in the following way and certainly don't circumcise my own boys, most people in the US consider it to be pretty much equivalent to ear piercing or removal of the appendix/tonsils. With the ubiquitous nature of circumcision in this country and the overwhelming majority of circumcised males being fine about it when they get older, I would be more inclined to let a parent run amok in this area. The claim of harm is very debatable and unnacepted in this country. The medical community itself has issued vacillating and contradictory opinions.


MamasBoy said...


Good points as usual. I agree with many of them, but probably disagree with this one the most, "My guess is that the judge was convinced that the father was insincere and possibly even unstable."

My own personal experiences with the legal system/lawyers/violent criminals/guys in divorce proceedings with ethics complaints against opposing lawyers lead me to believe that money trumps justice in most cases, and this case was clearly tilted in that regard.

Add to it the fact that
a) this judge lives in Chicago, b) the judge was the former head of the Jewish bar
c) Judaism being a matrilineal religion
d) judge attributing harm to any exposure to other religions, even innocuous exposure such as mass attendance

When I first read the story on GM America, I had tons of questions and a few suspicions. Given that most of my suspicions based on personal experience/bias have born themselves out with further research, I'm betting pretty heavily that the was judge way off base. Of course, the Saints won the Super Bowl, so who's to say I'm right.


steviepinhead said...


I'm going to back away from the specifics, just a bit.

In most custody cases, somebody(ies) ultimately has to be in charge of important decisions like where the child is going to go to school, medical treatment, religious upbringing, and so forth. It's typically part of the court's dissolution or divorce decree.

If the parents can agree on these things (meaning, typically, they have been through a mediation or other dispute-resolution process beforehand), then they can usually have the court validate there agreement, which might well include -- to get a little more specific, again -- an agreement that the mother can take the child to church or synagogue during her time, and the dad can take the child to church/mass during his, and at some point -- age 13, or whatever's typical for bar mitzvah or commencement or whatever the other terms may be for "opting in" to the particular faith -- the child himself or herself begins to be accorded some say in the matter.

If the parents are unable to agree, of course, then things begin to get touchy. The court has to make a choice -- and it's usually not a choice of which parent is in charge of "religious upbringing," so much as that being a downstream result of -- which parent gets to be the "major decision maker."

It sounds here like the husband, quite possibly due to not having access to paid legal advice and being unfamiliar with the system, got jobbed pretty early on. That is, his wife got custody of the kids, primary residence, and all down the line, including major decision maker for such things as medical care and religious upbringing.

If the husband didn't know how to insist on some alternative dispute resolution early on, and allowed himself to get shut out of the "major decision maker" role, then he's got an uphill battle forever after to try to get any of the downstream affects of that designation changed...

And the burden of proof is then on him.

So, while the parents could easily and amicably have designated a dual/shared religious upbringing for the kid -- and a court would typically have rubberstamped that quite-reasonable procedure -- once that didn't occur, and decision-making devolved on the custodial spouse, here the wife, then the husband's role was considerably limited.

Instead of the wife having to prove that a dual-religion set-up would be detrimental to the child, the burden falls on the husband to show that the wife's choice of religion was detrimental to the kid.

Which, obviously, since Judaism is a mainstream, well-recognized, non-kooky religion, becomes pretty hard for the dad/husband to do.

It's as if the wife wanted to have the kids go see dentist X and pediatric clinic Y. The husband may have different druthers, and his choices may be, in the world at large, perfectly valid, but since the wife's are too, and she's the one upon whom "major decision-making" authority has devolved, then X and Y is who they're going to see, barring some emergent situation, and the husband is going to be seen as violating the court's order if he tries to go around those designations.

Particularly if the court gets any whiff that the husband is just using the medical treatment choice or the religious upbringing choice as part of an ongoing campaign to wage war on the wife or her parents.

So I suspect this started out with the wife getting first out of the gate in obtaining primary decision-making authority over the kids. Once that was accomplished, it's not so much -- at least in the court's mind -- about "religious freedom" or even "what's best for the child," but about the husband vindictively trying to undermine and sabotage a general level of decision-making authority which, again absent amicable and agreeable parents, can ultimately only be given to one parent or the other.

Douglas said...


You are back from the dead! Good to have you around again.

To clarify, do you think that it would be tough for the dad to show that forbidding all mass attendance and exposure to her dad's faith is harmful to the child?

I can see how the court can say that one parent controls religious training specific to the child in today's court environment, though I don't necessarily agree with it. What I don't see is forbidding all exposure to one parent's faith and requiring a parent to get a babysitter if they want to go to church on Sunday morning. Imagine telling a Jewish mother that she must hire someone to watch her kid while she goes to synagogue on Saturday, thus violating her faith in that she must hire somebody to work on the Sabbath. That strikes me as a preposterous overreach of judicial authority, but very reasonable people disagree with me on this, so perhaps the idea isn't as radical as I view it given today's judicial environment.


Douglas said...


Here is a similar case that gets at what I believe is the ridiculous nature of this ruling. Religion is an integral part of people's lives. It can't be compartmentalized so that a child isn't exposed to one parent's religion without forcing the parent to hide a huge part of who they are from their child (e.g., Christmas and Easter traditions).

Incidentally, Joseph Reyes won the right to take his daughter to mass last month from a different judge, but still faces contempt of court charges for doing so before the court allowed it.,CST-NWS-reyes08.article


steviepinhead said...

I was just trying to figure out how the father had backed himself into this situation in the first place.

Most states now encourage divorcing parents to try to resolve their issues separately from impacts on their children. Thus, in an ideal situation, parents wouldn't find themselves getting down and dirty over issues like "which religion will the child/ren be exposed to?" in the first place, because the parents would have amicably agreed on some sort of shared-control (which almost always means having some sort of touchstone agreement worked out in advance -- here's our basic agreed philosophy; here's the default if we're unable to agree on certain kind of predictable questions or conflicts or schedule screw-ups that might well arise: here's the steps that we'll take to resolve any such disputes that aren't resolved by the defaults, which steps would position a trip to court as the last resort in a whole series of steps, which would include counseling, mediation, etc.).

So my strong suspicion is that there was a whole lot of dysfunction going on in the process of this divorce, from early on.

And I don't always find it useful to focus on instances where a whole lot of stuff likely went wrong when attempting to figure out what's the *right* way to do something.

This isn't to say that the "outer limit" cases can't be instructive about fixing what's broken with common processes, or even in attempting to start roughly boxing in the territory of an ideal, but it's often easier just to lay out how we would like to resolve such situations in the future without getting to bogged down in the variety of poorly-resolved past examples.

Which this certainly sounds like it was...!

What *I* think is that parents who have different stong faith-views need to have open and honest discussions about how likely situations are going to be dealt with from the get-go, early on in the course of a relationship that's looking to become serious.

Here, the father chose not to stand on his own strong faith-view, but to take the course of capitulating to that of his wife and her parents.

Needless to say, this early failure to stick to his guns (or failure to recognize the strength of his own views, assuming that's actually what's going on here and not vindictiveness and vituperation, seizing upon the faith issue as a pretext) only complicated matters for him later, when he tried to reverse field.

In any event, he started from well behind in the situation, and was not well-advised.

Once the court has ordered something, you're stuck with that until you can overturn it. There are ways to do that. Circumventing the order before overturning it is not usually the recommended way to go, if you want to avoid contempt of court (also, it's almost guaranteed to minimize the probability of overturning the original order: why should any court exert itself to disturb the status quo for someone who shows disrespect for the entire process -- while we can come up with "stacked deck/civil disobedience" exceptions to the "recommended" way of dealing with things, I'm not convinced this is the sympathetic case upon which to found that sort of exceptionalism).

So, yes, I agree that the faith-views of both parents ought, in general, to be respected by the divorce/dissolution process. (And, from my own personal point of view, the child's capacity to formulate his or her OWN faith-view, independent of the tradition of either parent ought to also be respected by the process...).

I don't mean to make the father out to be the only naive, bad, or poorly-advised actor in this scenario. It sounds like the wife's parents were pot-stirring in a major way, and were heavily committed to a "my faith or the highway" set of values.

steviepinhead said...

As to my "absence" from Embracing the Risk"--

I've been a little distracted this year trying to spruce my house up for sale in a market that is improving, but still far from healthy, a rather key piece of my, ahem, retirement planning. With my three sons all grown and independent, I'm now (along with two cats) the part-time occupant of a four-bedroom, three-bath house. Of course, in typical pinhead fashion, I retired first, and am attempting to downsize out of my house only second. This was NOT the best way of going about things, so is taking a certain amount of my focus to un- and re-track. Meh, sounds like a personal problem...!

But I do peek in from time to time, whether or not that peeking always leaves evidence behind in the form of comments.

Don't miss me too much, in other words, because I haven't really gone away!

Douglas said...


Your analysis makes sense. The guy certainly shot himself in the foot at numerous instances, whether intentionally or not.

Good luck selling your house.