When a divorce court rules on your religion of choice, Constitutional issues are reborn. This happens frequently when couples agree to raise their children in a certain religion. In a recent appellate case, after the parents chose Christianity as their religion of choice, an Arizona family judge had to decide whether Mormons were Christian.

A Monumental Judgment

A Mother and Father married in November 1999 and had two children. In December 2017, the Mother petitioned for divorce and filed with the divorce decree a parenting plan signed by both parents. The Parenting Plan stated:

Each parent may take the minor children to a church or place of worship of his or her choice during the time that the minor children is/are in his or her care. Both parents agree that the minor children may be instructed in the Christian faith.

About a year after the divorce, the Father joined The Church of Jesus Christ of Latter-day Saints, and the children occasionally joined him at meetings. After the Mother learned the children were accompanying their Father to a Mormon Church, she moved to enforce the Parenting Plan, claiming the Mormon Church is not Christian under the Parenting Plan.

The family judge held two hearings on the enforcement petition. During the second hearing, the Mother called a youth ministry leader from her church to testify that Father’s Church is not Christian.

After taking the matter under advisement, the judge decided that the Parenting Plan directs that “the Children shall only be instructed in the Christian faith” and that Father’s Church was not “Christian” within the meaning of the Parenting Plan.

The family court judge decided the Father could not take the children to the Father’s Church’s services, that he had violated the Parenting Plan, and awarded the Mother attorney’s fees.

The Father appealed.

Florida Divorce and Religion

I’ve written about the intersection of religion and divorce – especially as it relates to vaccinations. Religion, religious beliefs, and religious practices are not statutory factors Florida courts consider when determining parental responsibility.

Nor is religion an area in which a parent may be granted ultimate responsibility over a child. Instead, the weight religion plays in custody disputes grew over time in various cases.

One of the earliest Florida case in which religion was a factor in deciding parental responsibility restricted one parent from exposing the children to that parent’s religion.

The Mother was a member of The Way International, and the Father introduced evidence that The Way made the Mother an unfit parent. He alleged The Way psychologically brainwashed her, that she had become obsessed, and was neglecting the children. The trial judge awarded custody to the Mother provided that she sever all connections, meetings, tapes, visits, communications, or financial support with The Way, and not subject the children to any of its dogmas.

The Mother appealed the restrictions as a violation of her free exercise of religion. The appellate court agreed, and held the restrictions were unconstitutionally overbroad and expressly restricted the Mother’s free exercise of her religious beliefs and practices.

Following that, and other decisions, Florida courts will not stop a parent from practicing their religion or from influencing the religious training of their child inconsistent with that of the other parent.

When the matter involves the religious training and beliefs of the child, the court generally does not make a decision in favor of a specific religion over the objection of the other parent. The court should also avoid interference with the right of a parent to practice their own religion and avoid imposing an obligation to enforce the religious beliefs of the other parent.

Road to a Constitutional Victory

On appeal, the first thing the appellate court found was that the trial judge’s ruling was based on the wrong interpretation of the Parenting Plan. The religious-education section of the Parenting Plan unambiguously stated that:

“[e]ach parent may take the minor children to a church or place of worship of his or her choice during the time that the minor children is/are in his or her care.”

This language, it was held, permitted the Father to take the children to any “place of worship,” be it “Christian” or “non-Christian.” Nothing in the clause explicitly limits or narrows this authority. The family judge was found to have erred to the extent that it found the Parenting Plan did not permit Father to take the children to a church or place of worship of his choice.

But, the appellate court also held that even if the clause expressly constrained the Father’s right the court would have vacated the holding because the court violated the First Amendment of the Constitution when it ruled that a Mormon Church is not Christian.

The appellate court ruled that the divorce judge had to abstain from handling Mother’s claim once it became clear the dispute concerned an ecclesiastical matter.

The Free Exercise and Establishment Clauses of the First Amendment of the United States Constitution, as applied to the states through the Fourteenth Amendment, “preclude civil courts from inquiring into ecclesiastical matters.”

Here, the family court dove right into an ecclesiastical matter by addressing whether the Mormon Church is part of the Christian faith. That very question has long been a matter of theological debate in the United States. A secular court must avoid ruling on such issues to prevent the appearance that government favors one religious view over another.

Although the judge was interpreting the Parenting Plan, the court did not resolve it through neutral principles of law but instead engaged in the exact type of inquiry into church doctrine or belief that the First Amendment prohibits.

For example, at an evidentiary hearing, the trial judge allowed in testimony from a minister to claim that Mormon Church was not part of the Christian faith, and admitted a chart comparing the tenets of the Mormon Church with Christian beliefs. The court’s order specifically found “that Mormonism does not fall within the confines of the Christian faith.”

In reversing, the appellate court ruled that courts are not the appropriate forum to assess whether someone who self-identifies as “Christian” qualifies to use that term. If the trial court’s order could stand, the “harm of such a governmental intrusion into religious affairs would be irreparable.”

A parenting plan’s religious-education provision can be enforced without violating First Amendment principles if the dispute does not require a court to wade into matters of religious debate or dogma.

The Arizona opinion is here.