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.
As Joseph Gitlin, a prominent Chicago family lawyer points out, in Illinois, the custodial parent is permitted, by statute, to "determine the child's upbringing, including, but not limited to, his education, healthcare, and religious training." That necessarily means the other parent will be carved out of decisions—even constitutionally protected parenting decisions—if it's not in the child's best interest. The tricky question in the Reyes case—the one the courts do not want to touch—is whether religion is a zero-sum proposition or a cultural buffet table. Is it harmful to raise a child in two different faiths? Does exposing a child to two religions differ from exposing her to two languages or teaching her to play two instruments?
Some family lawyers urge the courts to stay out of it. Missouri family lawyer Michael Albano warns that in an earlier era, when family court judges were allowed to micromanage conflicting parental religious practices, the consequences were disastrous. Lesbians, for instance, were denied custody and could not even associate with their partners. "Courts cannot police every situation," says Albano, and that means "generally allowing both parents to expose the child to their religious beliefs." Donn Fullenweider, a Texas family lawyer, is even more blunt: "In most of society sex is a taboo. In the courts, it's religion. Our judges won't touch these issues unless forced to."
When forced to, some state courts have struck down divorce decrees requiring a single religion for a child; others have upheld them. As Judge Jordan has learned, attempting to balance one parent's constitutionally protected religious freedom against the other parent's desire for religious purity rarely works, because, as Joe Gitlin puts it, for most of us, "there's always only one way to heaven, and it's mine."
Regardless of the enforceability of the Reyes' temporary restraining order, or the advisability of court involvement in parental religious decisions, every lawyer I spoke to agreed there are smart ways to modify unacceptable custody arrangements. Violating them on live television and turning your toddler into a media hacky sack probably isn't one of them. As Texas' Fullenweider put it: "I doubt a Texas court would hold the father in contempt for taking a child to a service in a different religion when he agrees to raise the child in another faith. But our judges might think it more of a violation, parading a child in front of the TV cameras just to make a point with his ex."
A version of this piece appears in this week's Newsweek.