Can a family court prevent a parent from taking his daughter to church?
Joseph Reyes, an Afghanistan war veteran and second-year law student, converted to Judaism when he married Rebecca Shapiro in 2004. When they split up in 2008, Rebecca won primary custody of their daughter, and Joseph got regular visitation. The couple had allegedly agreed to raise their child Jewish, but Joseph, seeking to expose his 3-year-old to his Catholic faith, had her baptized last November. When she learned that her daughter had been baptized without her consent, Rebecca obtained a temporary restraining order in December 2009, forbidding Joseph from "exposing Ela Reyes to another religion other than the Jewish religion during his visitation." In January of this year, Reyes again took Ela to Mass at Holy Name Cathedral, with a local TV news crew in tow. His ex-wife's lawyers demanded he be held in criminal contempt—with a maximum punishment of six months in prison.
Can a court really tell a parent what religion his child will be? And can a judge possibly back up such an order with the threat of jail time?
Joseph Reyes says no. The very instant Reyes decided to fight for his religious liberty in the court of cable television, however, complicated legal issues were reduced to black and white. Headlines across the country trumpet that a father faces jail time for exposing his daughter to religion. It all sounds very Big Brother-ey and terrifying. But instead of legal analysis, what we have mostly received in this case are a series of typically nasty divorce court spitballs. For instance, Reyes wants it to be clear that even though he converted to Judaism, he did so "under duress" to mollify his in-laws. He argues in his pleadings that he and Rebecca weren't truly Jewish, because they didn't keep a kosher home or observe Sabbath. And Reyes and his lawyer requested, and won, a new judge because the original judge, Edward Jordan, is Jewish. None of this has anything to do with the actual case, but it does get the old blood pressure soaring.
Moreover, Reyes—who has argued that courts should not be in the business of policing private religious practices—has tried to make his own inscrutable theology the centerpiece of his media campaign. Thus, he insisted to the television cameras that, in taking Ela to church, "I am taking her to hear the teachings of perhaps the most prominent Jewish rabbi in the history of this great planet of ours." When he took the child to Mass in January, he explained to local news reporters, "I think that Christianity and moreover Catholicism in particular is a radicalized form of Judaism and there are theologists that would agree with me on that point." Is his object here really to have the courts butt out of religion? Or is it to have a court announce that Judaism and Christianity are the same thing? Let's at least be clear on this: There is no party to this case who isn't attempting to impose his or her religious preference upon the other.
Since Joseph doesn't really dispute that he violated the restraining order, the only issue here is whether a family court judge can order divorcing spouses to raise a child in just one religion. In her court pleadings, Rebecca Reyes argues that she has sole custody of Ela, that the couple agreed to raise the child Jewish and sent her to a Jewish preschool, and that exposure to another religion will "confuse" her.
Joseph, in his pleadings, says Ela was not harmed by her baptism and that under Illinois law, noncustodial parents can attend religious services with their child unless there is "proof of harm to the child" or it "interferes with the custodial parent's selection of the child's religion." Finally, Joseph says the restraining order violates his religious freedom. And that latter bit is the stuff headlines (and many, many press releases) are made of.
I polled several family lawyers about whether Judge Jordan's restraining order is as radical as the media have suggested. Some say it's uncommon; others disagree. Some have never encountered an order requiring that a child be shielded from any religion but her own; others say the primary custodian gets to pick the child's religion, period. But I was reminded that family courts interfere with a parent's constitutional freedoms all the time. A family court judge can infringe on your right to free speech when he bars you from speaking ill of your ex-husband and his "secretary" in front of the kids. She can also prevent you from interstate travel if you seek to move your child away from your ex-wife. The Bill of Rights isn't the last word in divorce proceedings. But when a court impedes one's fundamental constitutional freedoms, like speech, travel, or religion, it's usually for an important reason: the best interest of the child. This is the interest we have heard almost nothing about in the Reyes case, amid all the fulminating over parental rights. The only question that should matter by these lights is whether it's best for children to be raised exclusively in the faith to which they were born. That's not an easy question. It may not even have an answer. But it's not the question they're asking on cable news.
Dahlia Lithwick writes about the courts and the law for Slate.