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Court Finding That Mormonism Isn't Protestantism:

In Rownak v. Rownak, 2008 WL 4491823 (Ark. App. Oct. 8), a divorcing couple agreed "that the minor children be raised in the Protestant faith," which apparently meant to them that they weren't supposed to "promot[e] another religious belief system/faith to the minor children unless both parties should consent." The court accepted this agreement, and made it part of its divorce decree.

A couple of years later, the husband started promoting Mormonism to the children. The wife asked the court to find the husband in contempt, which the court did. A week ago, the Arkansas Court of Appeals refused to disturb the contempt finding.

The specific reasoning is clouded by the father's failure to appeal the order; he instead filed a motion for clarification or modification of the order, and appealed the denial of that motion. But my sense is that the heart of the court's reasoning is that if parties made a deal, they can be held to the terms of that deal, even if the deal involves a promise not to speak or not to engage in religious conduct. "[T]he injunction about which appellant complains has for its basis a valid contract between the parties and does not violate appellant's constitutional rights. The circuit court's order merely effectuated the parties' agreement ...." (Note that the contempt citation was for violating the decree, which embodied the parties' agreement; as I read it, the courts didn't find that the religious teaching was against the children's best interests, and thus didn't rest their reasoning on the children's best interests.)

This, it seems to me, raises three separate questions:

(1) Should such contracts not to speak (whether religiously or otherwise) be enforceable in some way, whether by damages or otherwise? The court said yes in Cohen v. Cowles Media (1991), and I think that's right.

(2) Should such contracts be enforceable by court order, via contempt penalties and not just damages awards? I'm inclined to say yes as well.

(3) When should such contracts nonetheless be unenforceable on the grounds that they require courts to make theological decisions, such as whether Mormonism is included within Christianity, whether Jews for Jesus is included within Judaism, whether Reconstructionist Judaism is included within Judaism, or whether Mormonism is included within Protestantism?

I think there are substantial limits on the enforceability of such contracts. The church property cases held that courts generally can't make theological decisions, such as which claimant's views are closer to orthodox (with a small "o") Presbyterianism; and I think the logic extends also to the interpretation of contracts, wills, and trusts that call for such decisions. Nor can courts avoid this constitutional barrier by trying to figure out what the majority of members of a religion thinks (hard to do reliably, plus it assumes the conclusion of who constitutes "members of a religion," and it privileges majority denominations within a religious group over minority denominations). And courts usually can't avoid the constitutional barrier, I think, by asking what the parties intended the term to mean — the best test of a word's intent is usually the word itself, and that is the very thing that calls for theological decisionmaking.

The question then is whether such contracts are categorically unenforceable, or whether there's some exception, for instance when there's seemingly overwhelming agreement about the question. For instance, the official Church of Jesus Christ of Latter-Day Saints site expressly says that "we are not Protestants"; let's say this is largely uncontroversial among those Mormons who have an opinion on the subject. Can the court therefore conclude that it can say Mormonism is "another religious belief" than "the Protestant faith," even though it is forbidden from resolving more controversial questions? Or does the objection of even one person who expresses a different religious view — perhaps a party in this very case — create enough controversy that a secular court should refuse to enforce the parties' agreement?

Pragmaticist:
Imagine if the father started preaching Roman Catholicism to his kids in violation of his contract to raise the kids in the "Prostestant Faith".

Does a court's refusal to involve itself in matters theological render it incapable of finding the fact that Roman Catholicism is not in the "Protestant Faith"?
10.15.2008 7:43pm
Lior:
I think that what matters is not an abstract question "Is Mormonism a Protestant denomination?", but rather a more specific question: "did the parties intend to include or exclude Mormonism in the allowed teachings?". In other words, what matters is the subjective views of the parties, not "objective" views of thelogicians.

I would not be surprised if the father's interest in Mormonism was part of the motivation behind the clause under discussion.
10.15.2008 7:45pm
smitty1e:
Baptists often decline the label "Protestant" as well.
Having never recognized the authority of Rome, against what would they protest?
10.15.2008 7:47pm
krs:
The last question reminds me a bit about Judge McConnell's opinion discussed here a few months back.
10.15.2008 7:56pm
Burt Likko (mail) (www):
I do not see a theoretical problem with a court reaching this sort of issue. A Constitutional issue is only reached if the court orders, over a party's opposition, something about which kind of religion a child is brought up in. But here, the parties agreed on the limits that would define the child's upbringing as "Protestant."

So the problem is evidentiary, not Constitutional. I agree with Prof. Volokh that a court is not competent to address, on its own, a theological question of this nature. But neither is a court competent on its own to address (for example) whether a particular kind of stress test is appropriate for determining how carbon-fiber bicycle handles fractured and caused personal injury, the way Daubert authorizes a court to do.

This could be handled with expert witness testimony in a disputed case, or by stipulation here, since it seems there was no real dispute about whether Mormons are Protestants or not. The party contending that Mormons are not Protestants (mom in this case) would have to offer some kind of evidence -- perhaps an affidavit from a pastor or a theologian -- and the court could use that. Dad gets to object, or proffer contrary evidence, or not as he is able or willing. The court treats it like any other sort of disputed contention.

The problem here is that it looks like the court simply assumed that Mormons are not Protestants. To a non-Protestant like me, that assumption is not obvious, so the foundation of fact upon which the ruling is based seems weak.
10.15.2008 7:59pm
a knight (mail) (www):
smitty1e: Baptists often decline the label "Protestant" as well. Having never recognized the authority of Rome, against what would they protest?

Possibly protesting Ecumenicalism, Anglican persecution, infant baptism, non-immersion baptism, a hereditary monarch as head of a church, and an official state-mandated religion?

Any Baptist who declines the label "Protestant" is chasing a well-dressed bunny with a fancy timepiece down into a hole in the ground. Any Christian Sect that asserts the King James Bible is the authoritative version is Protestant. All Christian sects that trace their origins through Martin Luther and John Calvin are Protestant. Any Christian sect which has within its hymnal, "A Mighty Fortress Is Our God" is undoubtedly giving Luther a big nod.

William H. Brackney, "Baptist Contributions to Protestantism", Baptist History and Heritage Society
10.15.2008 8:39pm
Kazinski:
It's obvious that Mormons are Protestants because they don't accept the doctrine of transubstantiation. Unless of course they aren't considered Christian.
10.15.2008 8:44pm
Dilan Esper (mail) (www):
Personally, I think the better approach is to simply not enforce this type of a contract. A contract requiring a child to be indoctrinated is against public policy. Then we avoid having to litigate the Nicene Creed.
10.15.2008 8:50pm
Cornellian (mail):
I wonder whether they'd consider Orthodox as falling within the category of "Protestant."
10.15.2008 8:57pm
Steve2:
Mr. Esper, while it may be prudential to not enforce such a contract, I think Professor Volokh's Constitution-based rationale is better than saying it's against public policy, since it really isn't against public policy in the U.S.
10.15.2008 9:00pm
SealionII (mail) (www):
As a Mormon, I think it's fair to say that we don't generally consider ourselves to be Protestant (although if using the King James Bible and having "A Mighty Fortress Is Our God" in the hymnal were the criteria, I guess we'd qualify), and, as mentioned at the link, official LDS Church policy is that we are not. Similarly, I don't think Protestants generally consider Mormons to be a Protestant religious group, although I have seen Roman Catholic writers refer to Mormonism as a branch of Protestantism.

Since neither the LDS Church's official position nor the general view of church members is that we are Protestant, I think there really isn't any "theological question" to be decided here; the question has already been answered by the people to whom it's pertinent, and the court can accept that answer without performing its own theological analysis.

A contrary example would be a decision on whether Mormons are Christian. In that case there's an ongoing and emotionally fraught discussion with Mormons affirming our Christian status and others denying it; I would say that in this case the court would effectively be making a theological pronouncement by answering the question either way, and would be obligated by the First Amendment not to rule in a way that would support or oppose either side of the argument.
10.15.2008 9:07pm
contracting-re-religion (mail):
It's certainly not implausible to think the parents might have not included the LDS Church within the ranks of Protestant churches: Richard Land, president of the Southern Baptist Convention's Ethics and Religious Liberty Commission (aka prominent SBC pundit) has stated that he believes Mormonism to be the fourth Abrahamic religion, the other three being Judaism, Christianity, and Islam. So if the parents agreed with Land, they would have considered the LDS Church no more Protestant than Islam is.

Even within Christianity, once you have to buy a new Bible to get the complete scripture without any non-recognized books appended (e.g., the Apocrypha for those converting between Roman Catholicism and Protestantism), you've left one category of Christians and joined another. And under the "buy a new scripture" test, the LDS Church is a different category of Christianity.
10.15.2008 9:16pm
CJColucci:
I second Lior's comment. Whether Mormonism "really is" Protestant is a theological issue a court can't decide. Whether parties who made an agreement to raise a child "Protestant" meant to include Mormonism is a factual issue a court can decide.
10.15.2008 9:16pm
neurodoc:
Would the decision have been more authoritative, theologically at least, if it had been handed down by a Utah court?
10.15.2008 9:24pm
Mhoram:
I can't see any good reason for the government to get involved in telling any parent what religion to promote or not to promote to his or her children. There is simply no other issue where the personal bias of the judge will get involved.

Can you conceive of a devout, fundamentalist Baptist Christian judge holding a parent in contempt for promoting that exact form of religion to his children when the divorce agreement said that the parents would raise the children as Muslims?

I didn't think you could.

Such an agreement should be as unenforceable as racially restrictive covenants in a neighborhood.
10.15.2008 9:52pm
Mhoram:
Will get MORE involved.
10.15.2008 9:52pm
R Gould-Saltman (mail):
Hmm. Is contempt in a family law proceeding in Arkansas, post-Feiock (Hicks v. Feiock (1988) 485 U.S. 624, 99 L.Ed.2d 721, 108 S.Ct. 1423) civil, or criminal? If the latter, is the practice of Mormonism not the practicing of Protestantism beyond reasonable doubt? The above discussion suggests maybe not. As someone who's not Christian, and never has been, i've always understood Christianity to be divided pretty much:

A. Catholics
B. Eastern Orthodox
C. Protestants,

with, as noted, using the King James version as the boundry between C and everyone else.

My associate has a number of cases in which parties have agreed that a child (or children) will be raised, and educated, as practicing Orthodox Judaism. As soon as I saw the first such agreement, I anticipated the possibility of a dispute as to the sufficiency of the "orthodox-ness" of someone's practice...
10.15.2008 9:53pm
PDXLawyer (mail):
Mhoram: Do you know a lot of Baptists? I do (though I'm not one myself). I find that they are usually pretty fair-minded when it comes to religious tolerance issues.
10.15.2008 10:27pm
Dan M.:
I don't see how you can classify your sect of Christianity as Protestant unless you can trace roots to the Protestant Reformation. Mormonism is based entirely on Joseph Smith's visions and has absolutely no roots in the Catholic Church. I don't think Unitarians or several other grassroots Christian denominations could classify themselves as Protestants.
10.15.2008 10:38pm
Hoosier:
Cornellian: For some purposes, Orthodox Chrisitans were lumped in with Protestants during their time as full members of the WCofCs. Crazy, though, wasn't it?
10.15.2008 11:05pm
Daniel San:
It seems that there are two ways the Court could avoid getting into the theological dispute. If the Agreement or surrounding facts make it clear that the intent of the parties meant to exclude Mormonism from the category "Protestant", then the Court can enforce the agreement without getting close to theology. Or, if the husband admits that Mormonism is not Protestantism, then the Court doesn't have to go where it may not go.

But, if there is no key to defining the term provided by the parties and if husband claims that Mormonism is Protestant, then the Court must avoid defining it. Otherwise, the Court is addressing questions of authority in the Mormon Church: "Is the web site authoritative?" "Is Protestantism defined by reference to Roman Catholicism, or by theological elements, or by self-definition?" Start down that path and it doesn't end without some inquiry into the nature of Joseph Smith's revelations.
10.15.2008 11:33pm
rustonite:
'Protestant' is a pretty useless category, since it's a negative definition. Catholic and Orthodox Christians can be defined by what they are, but Protestant can only be defined by what it's not- not Catholic or Orthodox. It's not as though there's some defined set of parameters for it, Protestant belief runs a huge gamut.

I'm a Christian Scientist, so I run into this problem all the time. We don't consider ourselves Protestants- we were in the nineteenth century, in Boston, so we have only the most tenuous connection to Catholicism. But we typically use the King James, and we seem superficially Protestant, so that's where we get lumped, according to the negative definition.

Unless the parents defined 'Protestant' in the original agreement, I would have ignored the mother's complaint. It's like promising to raise your child Spanish-speaking, and then complaining that your husband is speaking Castellano instead of Argentinian Spanish.
10.16.2008 12:04am
Student:
"Any Christian sect which has within its hymnal, "A Mighty Fortress Is Our God" is undoubtedly giving Luther a big nod."

Walk into a Catholic church some time and flip open a hymnal. You may be surprised who's work you find in there.
10.16.2008 12:09am
Hoosier:
rustonite:

The utility of the term depends upon what you're looking for. I'm not sure it's all that difficult to separate out the histories of the various denominations; one could do a cladogram-type tree that has Luther departing from Roman Catholicism, and go from there. All denominations in the West would be part of the Luther/Protestant clade. This would include Mormons, who would be a "leaf" on the 'Restorationist' branch.

(Christian Science doesn't fit into the diagram, of course, since L. Ron Hubbard made it all up.)

From the point of view of beliefs, as opposed to genealogy, it's harder. You would probably have to look at the foundational question of scripture:

1) Catholics and Orthodox existed before there was a Bible. Those separated brethren who accuse them (us) of "deviating from the scripture" tend to forget that it was The Church (as it was known) that put the Bible together. Kinda like accusing me of not loving my kids enough, since I had no contact with them until they were conceived. But I digress.

2) Protestants root their faith in the Bible, which they define as the Hebrew and Greek Scriptures, with the exception of some canonical works that Luther tossed because . . . Well, that's for another day. But Christian Science would fall squarely into this camp, given Mary Baker Eddy's three years with the Bible.

3) Groups that have additional scripture. This would include the LDS, who have the Book of Mormon, which they take to be another testament added to the Old and New. And of equal authority. (Or even more. Again, an issue for another discussion.) From this viewpoint, they are not Protestant.


By the way, I look forward to the day when there is a 1:1 correspondence of Protestants to denominations. See what happens when you start going down the road to Protestantism? Erasmus tried to warn you, but did you listen? Nooooooo!
10.16.2008 12:28am
Hoosier:
Student: Yes indeed. One of the greatest hymns ever written. We just never sing it. Because we sing Marty Haugen's crap.
10.16.2008 12:30am
jim47:
I think Lior is completely right. Whether Mormonism is Protestantism in objective reality is irrelevant, what matters is how Mormonism was contemplated within the private contract.

But I must also add that I think Eugene's analysis unnecessarily conflates two questions that academic scholars of religion would consider to be distinct — historical questions, which are answerable from a neutral perspective outside of the faith in question, and theological questions, which are unanswerable, except relative to a specific perspective inside the faith in question.

Whether a denomination is Protestant is generally thought to be an historical question. What matters is who thinks of themselves what way, and what sort of relationships churches have. The fact that Mormonism isn't considered Protestant has much more to do with the circumstances of its origin than the content of its theology. The question is taxonomic, rather than normative.

Where we must be most careful is if both the historical question and the theological question are relevant, but provide conflicting answers. For instance, as a historical matter, Reform Judaism is clearly a tradition that arose from, and continues to exist within the broader Jewish tradition, with which is still exchanges ideas; but as a theological matter, it's status is disputed by members of that tradition.

Where the historical question is truly the relevant one, I see no special impediment to a court determining facts; where the theological question is the relevant one, the public courts have no business deciding what is or is not true, because those answers can only exist if one chooses the perspective of a particular faction, which is forbidden because it would assign the government's special favor to that faction.
10.16.2008 12:32am
Hoosier:
Oops. I forgot:

4) Unitarians, who don't believe anything, but enjoy going to church before Sunday brunch.
10.16.2008 12:32am
B Roberts (mail):
I'm Mormon, so I'll speak up. The court got it right! We unequivocally aren't protestant. Taxonomically speaking, the church could be categorized as a Restoration Christian Church. One of the fundamental tenants of the church is that at some point after the apostles died, the world entered a period we call "the great apostasy", where christianity became corrupted, truth was lost, and the legitimate priesthood was gone from the earth. A fundamental corollary to that belief is that once the priesthood power is lost, it can't be brought back through reform (ie the protestant movement), thus the need for a restoration. This restoration (much of it through Joseph Smith) then became a key (maybe the key) foundation of the Mormon church and belief system.

Now the interesting case would have been a case on whether Mormons are Christians. Many Christians would prefer that we get relegated to non-christian cult status, mostly because we reject the Nicean Creed and the doctrine of the Trinity. (We believe in God, Jesus, and The Holy Ghost as seperate and distinct beings). This baffles every Mormon I know, as our belief system is Christ-centered any way you look at it. The "open cannon" of the LDS church also tends to upset some mainstream Christians.

Click
here For an interesting and intellectual discourse from a current Mormon apostle on Mormons, Christianity, and the Nicean Creed.



Discourse by the same man on the open cannon:
here
10.16.2008 12:52am
another anon:
I'm not sure I agree that the court would be limited to the parties' subjective intention when examining this. As I understand the rules of interpretation, a court only takes evidence of the parties' subjective intentions if the contract is ambiguous. Before going there, though, the court first looks at the words themselves and determines whether there is a plain meaning. If there's a plain meaning, it controls.

So in this case, the court's first step would be to determine whether Mormons are unambiguously Protestant/Not Protestant. If there's a plain language answer, that settles it, which means that the court would have to take a look at the issue in theological/historical terms.

For what it's worth, as a lifelong Mormon, I don't regard myself as Protestant, and I have a really hard time imagining that many (if any) informed Mormons would.
10.16.2008 12:56am
jim47:
R Gould-Saltman:

Christianity is several layers more divided than your description.

First of all, many Protestant denominations do not use the King James Bible. There are a host of English translations of the Bible, and many exist because they are the translations associated with a specific denomination. Still other denominations use ecumenical translations other than the King James version. Plus there are all those Protestants that don't use the King James version because they don't speak English.

In addition to the Eastern and Western Churches, there are Coptic and Syriac Christians, as well as other minor Christian sects with roots in antiquity.

Within the Western tradition, there are numerous denominations that came into existence after the Protestant Reformation, but which do not trace their origins to it. These would include: modern reconstructions of faiths, like the small modern Gnostic churches; denominations which trace their origin to new divine revelations, like Mormonism; denominations with origins in non-trinitarianism; and most significantly, groups of evangelical christians whose teachings arose in a protestant milieu, but who do not trace their theology or organizational identity to a specific strand of protestantism.

Within the Eastern tradition, there are also offshoots of the Orthodox church which might be difficult to classify as Orthodox, but which would certainly not be Protestant.
10.16.2008 1:01am
Bill Poser (mail) (www):
Religions can be classified either on historical grounds or on the basis of their doctrine or other other properties (such as what scripture they recognize). The various approaches will not necessarily yield the same classification. For example, what many would consider a defining property of Buddhism is its atheism, but some Buddhist sects (defined historically), such as the "Pure Land" sect popular in Japan, are theistic.

It seems to me that the proposal to take into account the Mormon view of the question is wrong. The question relevant to contract law is what the parties intended, if it is possible to determine this. The question is therefore whether the parties considered Mormonism to be a form of Protestantism when they negotiated the contract. What the Mormons might think about this is irrelevant.
10.16.2008 1:01am
Duffy Pratt (mail):
I like the "A Mighty Fortress" test. It is number 68 in the Morman Hymnal. Thus, they are Protestants no matter what they happen to think.
10.16.2008 1:10am
another anon:
Sure, the parties' subjective intent is ultimately the issue. But as a matter of interpretation,the court will only take evidence of it if the court thinks the phrase is ambiguous.

Suppose a divorce degree contained a clause preventing the custodial parent from letting the kids participate in "dangerous activities." If custodial parent let the kids ride on ATVs without helmets, the court could find the parent in contempt based on the plain language of the clause and based on the nature of the activity itself--regardless of whether the parties subjectively consider that to be a dangerous activity (I actually had that very case come up when I was still in private practice).
10.16.2008 1:27am
nyu law libertarian (www):
A court making religious distinctions might be comparable to making racial distinctions which could be seen as unconstitutional per the equal protection clause. I don't remember what case it was which included the private contracts with covenants against selling property to blacks in the forties where SCOTUS refused the state action, but parallels exist here. If not, then just find some definition of "protestant" (which to me means "non catholic Jesus believers) and enforce it - Mormons aren't catholic and do believe Jesus was the messiah.
10.16.2008 1:33am
Bruce:
I third Lior's comment. This is a "what is chicken?" case. The question is not what actually constitutes chicken; the question is what the parties agreed to.
10.16.2008 1:38am
Kazinski:
I can't see how any Mormon is going to get a fair shake in an Arkansas court. Something like the Mountain Meadows Massacre is not going to be forgotten by hill people for another half dozen generations at least.
10.16.2008 1:44am
Bill McGonigle (www):
Isn't the issue simply that the parents were agreeing to raise their children in mutually agreeable religious doctrines? If the Dad has said, "you know, I think I'm a Catholic at heart, and I'd like to take the kids to mass," and the mother was agreeable to that, there'd be no issue here. But, clearly the Mother thinks the Mormons are sufficiently disagreeable to her, so it violates the intent of the agreement. Is it not sufficient here to show that it's reasonable the mother would not have considered Mormonism as a form of Protestantism? Similarly, if the father had decided to join Gene Robinson's church, couldn't she argue, if she were on the other side of that debate, that just because somebody is calling themselves Protestant doesn't mean it falls within reasonable definitions (I'm mostly ignorant on the specifics of that issue, but know some are quite certain Robinson is wrong).

Can a court take the step of extracting such meaning from perhaps poorly worded clauses?
10.16.2008 2:28am
David Schwartz (mail):
I do not think civil courts have any authority or ability to enforce agreements of this type. If parties want an agreement like this enforced, they need to work out their own arbiter.

What if the next agreement says that the children can only be taught religious beliefs that are true?

I don't think you can resolve questions like "is Mormonism a Protestant religion" without getting involved in religious doctrinal disputes.

As for the argument that all that matters is what the parties agreed to, the problem is the same problem you have when you try to figure out the intent of Congress behind a law. Just because they agreed on the phrase "shall be raised in the Protestant faith", it does not follow that they agreed on *this* question. Perhaps the father thought that meant Protestantism widely construed and the mother meant narrowly construed.

Figuring out under what constructions Mormonism is and is not under the umbrella of Protestantism will undoubtedly touch on religious arguments about what doctrines are central, what the essence of Protestant faith is, and so on. One man's error correction is another man's rejection of fundamentals.

This is precisely what civil courts cannot do.
10.16.2008 2:32am
Hoosier:
"What if the next agreement says that the children can only be taught religious beliefs that are true?"

Then everyone is Catholic. And then it's, like, IMPOSSIBLE to get into Notre Dame.
10.16.2008 3:08am
David M. Nieporent (www):
(Christian Science doesn't fit into the diagram, of course, since L. Ron Hubbard made it all up.)
Hoosier, I don't think too many people who have met both Mary Baker Eddy and L. Ron Hubbard would confuse the two.


(And don't tell me that no such people exist just because they lived in different centuries. It ruins the joke.)
10.16.2008 3:53am
marc (mail):
Hoosier: Seeing Mr Haugen's opus stigmatised as "crap" on this site is very offensive to my spiritofvaticantwoness, as also are your intimations that one can evaluate the truth-claims of the various religious communities in any normative way.
10.16.2008 8:01am
yclipse (mail):
A procedural point: an appeal following denial of a motion for rehearing is an appeal from the original order or judgment.
10.16.2008 8:28am
KenB (mail):
I am with those taking a contract-interpretation approach. Whether, as a religious matter, Mormonism is a variety of Protestantism is not the fundamental question. And though I was reared in a religious home, I am not knowledgeable enough to know whether that question has a meaningful answer.

The fundamental question is what did the parties intend. To get there, you may have to inquire into the common understanding of religious terms, but you need not make a theological ruling. The common understanding may be theologically incorrect. Whether that is so does not matter to the outcome of the case.
10.16.2008 10:35am
APetersen (mail):
I think there is more of a free exercise issue here, and it cannot simply be an issue of what the contract says. What if I agreed in a contract that I will remain Roman Catholic. I later decide I don't want to be Roman Catholic but now want to be Baptist. No one can say that a court can enforce that contract under the free exercise clause of either federal or a state constition. If one decides to change faiths and the beliefs of that faith include beliefs that compel a parent to want his children to participate in that faith, I cannot see a court enforcing that agreement. And, what if the children express their desire to go to the mormon church? Should a court tell them no, because their mom and dad decided in a divorce decree years earlier that they are protestant? I don't think these clauses are enforceable and should not be routinely added to divorce decrees.
10.16.2008 11:25am
another anon:
Ok, well what happens if the clause isn't enforceable? This still doesn't mean that the post-divorce courts will never issue rulings touching on religion. At a certain point, they almost have to.

Suppose that two baptists divorce. Non-cutodial father then converts to another religion--using this example, let's say it's mormonism--and then starts teaching it to the kids during his parent time. Custodial mother strenuously objects.

Mother will likely claim at some point that she has the right to stop Father from teaching the kids things that she thinks are harmful. After all, custodial parents get to make all sorts of value judgments: where to send the kids to school, what surgeries or medical treatment to provide/not provide. She'll say that the kids' religious upbringing be part of that equation as well. At some point, a court will likely be called on to decide whether father has the right to teach the kids something that custodial mother expressly doesn't want them to hear.

Take it another step. Suppose father--who still shares joint legal custody--decides he wants to baptize them into his new faith. Mother objects. One way or another, a court will get involved there, too.

I've seen both scenarios play out. What I've seen courts typically do is pretend to be neutral and say that whatever the kids were at the time of the divorce, that's what they'll stay without the consent of both parents. But isn't that exactly the sort of religious value judgment that all of you are saying that courts can never make?

My point isn't to suggest an answer--I haven't done family law for several years and am not an expert on it. My point is that when you have courts with ongoing jurisdiction over post-divorce conflict, and where religion can be a true point of conflict, I don't know how courts could ever avoid stepping into religious based conflicts in the divorce context.
10.16.2008 11:38am
Bob from Ohio (mail):

A contract requiring a child to be indoctrinated is against public policy.


Religion is being "indoctrinated"?


indoctrinate
Verb
[-nating, -nated] to teach (someone) systematically to accept a doctrine or opinion uncritically

[emphasis added]

Hostility to religion violates the First Amendment also.


Such an agreement should be as unenforceable as racially restrictive covenants in a neighborhood.


How is religious belief like race discrimination?
10.16.2008 12:13pm
APetersen (mail):
A Court could just say no - I cannot enforce that clause. Sorry, you will have to work it out.

What if a married couple has a conflict about religion and how to raise their children. They are not divorced but when they married, expressed in writing to each other they would raise their children as Roman Catholic. Could one of them go to court and have the court enforce that agreement and decide that the breaching spouse cannot now take his kids to the Baptist church? Sometimes there will be conflict and kids may have to go to two churches. Too often divorce court or judges are seen as the answer to all conflict. Of course, if physical harm/injury may befall a child, the legal system should intervene but courts have no business telling anyone what faith or beliefs they must hold or express to their children whether divorced or not.
10.16.2008 12:19pm
Hoosier:
We are not Protestants

reminds me of

We are not Eskimos!

As in:

Italian You don't like it?
Carpenter No, I didn't want to eat a salad. I wanted to find out about a man called Salad.
Italian You're the first person to order a salad for two years. All the Eskimos eat here is fish, fish ...
First Eskimo (very British accent) We're not Eskimos.
Second Eskimo Where's our fish. We've finished our fish.
Italian What fish you want today, uh?
First Eskimo Bream please.
Italian Bream! Where do I get a bream this time of year? You bloody choosy Eskimo pests.
First Eskimo We are not Eskimos!
Italian Why don't you like a nice plate of canelloni?
Eskimos Eurrrrghhh!
First Eskimo That's not fish.
Italian (as he turns to go in kitchen) I've had my lot of the Arctic Circle. I wish I was back in Oldham ...
Carpenter crosses to the Eskimos.
Carpenter (speaking slowly, and clearly as for foreigners) Do any of you Eskimos ... speak ... English?
First Eskimo We're not Eskimos!
Third Eskimo I am.
Others Sh!
10.16.2008 12:30pm
Hoosier:
David M. Nieporent

(Christian Science doesn't fit into the diagram, of course, since L. Ron Hubbard made it all up.)

Hoosier, I don't think too many people who have met both Mary Baker Eddy and L. Ron Hubbard would confuse the two.


Look. Don't get technical with me. They're both dead. Or "ontologically challenged." Or whatever we're supposed to say these days.

Plus Tom Cruise doesn't believe in medicine. The rest is just details.

marc

Hoosier: Seeing Mr Haugen's opus stigmatised as "crap" on this site is very offensive to my spiritofvaticantwoness, as also are your intimations that one can evaluate the truth-claims of the various religious communities in any normative way.

marc, I'm way beyond stigmatizing his opus. I'm stigmatizing his corpus.

is very offensive to my spiritofvaticantwoness

You got it. It's always the "spirit" of Vat II. Never the "decisions." Or the "documents."

Because the "spirit" means exactly what I interpret it to mean. Which is how Protestanism got itself so splintered. Unity is supposed to be one of the Marks: one, holy, catholic, and apostolic.

So now I have this to look forward to? In addition to another century of Cubs futility? It's enough to drive a guy to agnosticism.
10.16.2008 12:40pm
Hoosier:
APetersen

I think there is more of a free exercise issue here, and it cannot simply be an issue of what the contract says. What if I agreed in a contract that I will remain Roman Catholic. I later decide I don't want to be Roman Catholic but now want to be Baptist. No one can say that a court can enforce that contract under the free exercise clause of either federal or a state constition.


Of interest:

www.insidehighered.com/news/2006/01/12/faith

It's not clear what the legal implications are, I suppose, since Hochschild didn't push it. But it's hard to see how a court would be able to rule on the issue in question, to wit, Does Roman Catholicism meet the requirements of the college statement of faith.
10.16.2008 12:47pm
APetersen (mail):
In response to Hoosier - Similarly, Hochschild cannot complain if he was terminated for becoming Roman Catholic. A court should not try to figure out if he or anyone else followed the statement of faith at Wheaton that he had agreed to do when he was hired. Wheaton made that decision and its decision is absolute. That may sound harsh, but his appeal should have been to the authorities at Wheaton. Frankly, the courts would have no jurisdiction reviewing its decision to open the door and quietly ask him to leave.
10.16.2008 1:09pm
Bill Poser (mail) (www):

What if the next agreement says that the children can only be taught religious beliefs that are true?


Great! A win for atheism!


Religion is being "indoctrinated"?

indoctrinate
Verb
[-nating, -nated] to teach (someone) systematically to accept a doctrine or opinion uncritically



Exactly. This is why it is so important for religious people to inculcate their religion in children and to prevent them from being exposed to other views and to criticism of religion. If children were raised without indoctrination in a religion, how many of them as adults would adopt one?
10.16.2008 1:13pm
APetersen (mail):
to clarify my last post - I think it's called the ecclesiastical abstention doctrine - Eastern Orthodox Diocese v Milivojevich, 426 us 696 (1976)- but going back to the family situation, isn't a parent as determinative and as insulated in religious practice as a formal organized church?
10.16.2008 1:38pm
Hoosier:
Bill Poser:

If children were raised without indoctrination in a religion, how many of them as adults would adopt one?

Rhetorical question? Or do you actually know anything specific? What percent of members of cults--including Scientology--grew up in a "non-churched" home?

There are some very interesting numbers on this last question. But they wouldn't convince you to rethink anything, would they?
10.16.2008 2:31pm
Dilan Esper (mail) (www):
Mr. Esper, while it may be prudential to not enforce such a contract, I think Professor Volokh's Constitution-based rationale is better than saying it's against public policy, since it really isn't against public policy in the U.S.

It's against the public policy as expressed in the First Amendment. The fact that the public may like religious indoctrination really isn't the issue here.
10.16.2008 2:45pm
lucia (mail) (www):
Hoosier
It's enough to drive a guy to agnosticism.

The bad music does that!

(My father-in-law, husband and brother's went fishing two weeks ago. I accompanied my frail mother-in-law to mass. The music left much to be desired. Plus, as usual, Catholics didn't sing. I sang, so as to save my self from utter boredom. )
10.16.2008 5:04pm
c.gray (mail):

If children were raised without indoctrination in a religion, how many of them as adults would adopt one?


Given the fact that most of the world's major proselytizing faiths have repeatedly experienced periods of explosive, voluntary adoption among populations of non-believers, the answer to the question may not be the one you think it is.
10.16.2008 5:21pm
gasman (mail):
Just what is Protestantism. Nothing more than a rejection of Catholicism. The mormons are correct, that lacking any dispute and having not splintered from Catholicism, they are not protestant.

It is odd that Protestantism had kept the label. Just what are they protesting about after all these years? Martin Luther's 95 Theses complaining about abuse of indulgences have long been rendered moot. As too have most other sources of protest that might have been raised.
For Catholics where the term catholic indicates a whole and unified body of believers there might be a bit of a marketing stretch given the presence of Protestants and others. But perhaps they can be forgiven for not changing their name merely because some of their members left.

But protestants; if they cannot articulate the protest, then what have they got as an identity? Nothing!
10.16.2008 5:37pm
gasman (mail):

(Christian Science doesn't fit into the diagram, of course, since L. Ron Hubbard made it all up.)

Hosier. You got it wrong. Hubbard made up Scientology in the 1950's.
Mary Baker Eddy made up Christian Science in the 19th century.
And Marshall Applewhite made up Heavens Gate.
Hard to keep all the cults straight I know....
10.16.2008 5:50pm
gasman (mail):

I think Lior is completely right. Whether Mormonism is Protestantism in objective reality is irrelevant, what matters is how Mormonism was contemplated within the private contract.

Laws are tossed by the courts all the time when they are so vague as to be unenforcible. This clause in the divorce contract seems so poorly written as to be meaningless. The parents should drop the fight against each other and sue the divorce lawyers for malpractice for writing such crap.
10.16.2008 5:53pm
Hoosier:
gasman--I was just kidding about the Christian Science/Scientology thing. It's just something that the CS people have to deal with from time to time. So I thought, you know, I'd rub it in while I have the chance.
10.16.2008 6:05pm
Dilan Esper (mail) (www):
It is odd that Protestantism had kept the label. Just what are they protesting about after all these years? Martin Luther's 95 Theses complaining about abuse of indulgences have long been rendered moot.

It's true that the specific aspects of Catholicism that Luther complained about have been changed. But wasn't the broader thrust of Luther's argument concern the sovereignty of the individual believer reading and interpreting the Bible as opposed to the centralized authority of Rome?

It seems to me that Protestants still "protest" about that, arguing that the Pope either has no authority at all or is at most just the titular head of a branch of Christianity. (Of course, in this sense, Mormons are Protestants too.)
10.16.2008 6:26pm
D.R.M.:
I don't see how you can classify your sect of Christianity as Protestant unless you can trace roots to the Protestant Reformation.


One of the key doctrines of the Protestant Reformation was the Great Apostasy, which is of course held by the LDS just as much as by any Baptist. Thus the LDS is rooted in Protestant theology, from which it subsequently separates by arguing reform was insufficient, that restoration was necessary.
10.16.2008 7:05pm
Jon Rowe (mail) (www):
One could argue that Mormonism IS Protestantism but not "Christianity." Protestantism simply means to protest or dissent. All of these odd dissident non-Roman Catholic sects are "Protestant" in this sense. However historic Christianity is "orthodox" -- if you reject THAT, arguably you aren't Christian. And indeed, America's key Founders (the early Presidents) from whom Mormons draw much influence were the quintessential "Protestants" who happened to not be "Christians" in the orthodox sense.
10.16.2008 7:19pm
ReaderY:
It seems to me that the question is potentially addressable and there are two possible avenues:

1. The views of experts. In this case the matter seems to be rather straightforward: both Protestant and Mormon leaders seem to agree that Mormons are not Protestants.

2. The views of the parties. In this case, they probably meant one of the parents' religion (or something like it) and the question would be which one. If the father's interest in Mormonism followed the divorce, this might be evidence Mormonism wasn't being considered at the time. If it preceeded, if the mother could provide evidence they had intended to agree that her religion would be the relevant one, that might well be highly relevant, otherwise, the father might have a point.
10.19.2008 11:22pm
ReaderY:
It seems to me that the question is potentially addressable and there are two possible avenues:

1. The views of experts. In this case the matter seems to be rather straightforward: both Protestant and Mormon leaders seem to agree that Mormons are not Protestants.

2. The views of the parties. In this case, they probably meant one of the parents' religion (or something like it) and the question would be which one. If the father's interest in Mormonism followed the divorce, this might be evidence Mormonism wasn't being considered at the time. If it preceeded, if the mother could provide evidence they had intended to agree that her religion would be the relevant one, that might well be highly relevant, otherwise, the father might have a point.
10.19.2008 11:22pm
ReaderY:
It seems to me that the question is potentially addressable and there are two possible avenues:

1. The views of experts. In this case the matter seems to be rather straightforward: both Protestant and Mormon leaders seem to agree that Mormons are not Protestants.

2. The views of the parties. In this case, they probably meant one of the parents' religion (or something like it) and the question would be which one. If the father's interest in Mormonism followed the divorce, this might be evidence Mormonism wasn't being considered at the time. If it preceeded, if the mother could provide evidence they had intended to agree that her religion would be the relevant one, that might well be highly relevant, otherwise, the father might have a point.
10.19.2008 11:22pm