Freedom of Religion

If Children "Will Be Enrolled and Be Participants in the Catholic Religion," Does This Require Taking Them to Mass?

The enrolled/participants requirement was part of a divorcing couple's custody agreement -- may a court interpret this as requiring the parent with Sunday custody to take the children to mass, or give up the relevant part of her parenting time?

|The Volokh Conspiracy |

No, says the Nebraska Supreme Court in today's unanimous Gomez v. Gomez opinion (written by Justice Jonathan Papik), relying at least in part on the impropriety of secular courts' "deciding what a person must do to be a faithful Catholic":

In the course of their divorce proceedings, Patrick W. Gomez and Elizabeth A. Gomez … agreed to a stipulated parenting plan. That plan, which was later incorporated in the decree dissolving their marriage, gave Patrick and Elizabeth joint legal and physical custody of their two children and set forth a schedule in which the parents would exercise parenting time. The parenting plan also included a provision that the children "will be enrolled and be participants in the Catholic religion" and set forth several specific Catholic religious activities in which the children would participate. Attendance at Catholic Mass was not mentioned.

Years later, Patrick filed a motion alleging that Elizabeth was not complying with the language in the parenting plan regarding the children's religious participation. In response to Patrick's motion, the district court entered an order requiring Elizabeth either to bring the children to Catholic Mass every weekend in which she was exercising parenting time or to allow Patrick to take the children during her parenting time. It also required the children to attend Catholic Mass on Catholic "Holy Days of Obligation" and required Patrick and Elizabeth to coordinate to ensure their attendance on those days…. [O]nce a court, as here, adopts such an agreement and sets it forth as a judgment of the court, "the contractual character of the … agreement is subsumed into the court-ordered judgment." …

Patrick and Elizabeth agree that the parenting plan requires that the children take part in those Catholic religious programs explicitly listed therein: "First Communion and Confirmation" and "CCD" classes. The parties divide on whether the parenting plan imposed additional obligations on the parents related to the children's attendance at Catholic Mass. On one side is the interpretation advanced by Elizabeth: The decree requires the children to take part in those Catholic activities specifically mentioned, but does not impose additional obligations such as Mass attendance. Patrick counters that the language requiring that the children "be enrolled and be participants in the Catholic religion" means that the parents are obligated to raise the children in the Catholic faith and are thus obligated to facilitate the children's observance of all the tenets thereof.

Patrick's interpretation was adopted by the district court, but we note that it … raises some difficult questions …. Patrick's argument is essentially that the parenting plan requires the children to do all that the Catholic Church requires of its adherents. An inescapable consequence of this interpretation is that the task of deciding what a person must do to be a faithful Catholic is placed squarely before civil courts.

Patrick hardly runs away from the notion that his interpretation puts courts in the position of determining and enforcing religious doctrine. To the contrary, his brief is replete with citations to Canon Law and he argues not only that it requires Mass attendance but that a failure to comply with such requirements is a mortal sin.

While courts are regularly called upon to decide the extent of obligations imposed by earthly regimes, many courts have questioned whether they may just as readily determine what obligations are imposed by a religious faith. Language from opinions of the U.S. Supreme Court, at a minimum, raises questions about whether courts may pass on matters of religious doctrine.

Additionally, many other courts have declined to resolve disputes that would require the resolution of questions of religious doctrine. See, e.g., Wallace v. ConAgra Foods, Inc., 920 F. Supp. 2d 995, 996 (D. Minn. 2013) (dismissing case alleging that food manufacturer misrepresented that its food products were "'100% Kosher'" because it would require court to decide questions of religious doctrine), vacated and remanded on other grounds 747 F.3d 1025 (8th Cir. 2014); Abdelhak v. Jewish Press Inc., 411 N.J. Super. 211, 985 A.2d 197 (2009) (affirming dismissal of defamation claim premised on alleged statements that plaintiff did not comply with religious requirements because resolution of claim would require court to pass on matters of religious doctrine); Pielech v. Massasoit Greyhound, Inc., 423 Mass. 534, 542, 668 N.E.2d 1298, 1304 (1996) (holding statute was unconstitutional because it would require courts "to determine what actions and beliefs are required of adherents to the Roman Catholic faith"); Zumno v. Zumno, 394 Pa. Super. 30, 574 A.2d 1130 (1990) (declining to enforce prenuptial agreement that children would be raised Jewish because, among other reasons, it would excessively entangle court in religious matters); Lynch v. Uhlenhopp, 248 Iowa 68, 78 N.W.2d 491 (1956) (declining to enforce language in divorce decree that children shall be raised in Roman Catholic religion as void for uncertainty).

As it turns out, we need not resolve the difficult questions raised by the interpretation advanced by Patrick and adopted by the district court. As we will explain, we conclude this interpretation is not consistent with the four corners of the decree itself. But while we need not address the questions discussed above, we note them for the consideration of practitioners or courts considering a parenting plan that would require judicial resolution of questions of religious doctrine….

As we have noted, it is Patrick's position that Elizabeth was required by the decree to take the children to Mass on weekends and Catholic Holy Days of Obligation when she was exercising parenting time or to give up her parenting time and allow Patrick to take them. Patrick contends that this requirement flows from the language that the children are to "be enrolled and be participants in the Catholic religion." We disagree with Patrick's reading.

Initially, we note that we are not presented with any argument or evidence that the terms "enrolled" and "participants" are used as either legal or religious terms of art…. In its ordinary sense, the word "enrolled" suggests only that the children must be registered in some sense in the Catholic faith. We do not understand how the requirement that the children be registered as Catholics in some way also compels the Mass attendance ordered by the district court.

This leaves the word "participants." It is Patrick's position that the children will be "participants" in the Catholic religion only if they adhere to all its required observances. We certainly understand that if the children did so, they would qualify as "participants." But our focus is on what the decree required. And the word "participant" on its own suggests only that a person take part in something to some degree. Indeed, it would not be uncommon for persons to be described as "participants" in a given activity even if they do not take part to the fullest. It is only with qualifying language not present here such as "full" that the word "participants" communicates the level of participation Patrick argues the decree required.

To be sure, the children must take part in the Catholic religion to some degree if they are to be fairly described as "participants." But, as we have noted, the parenting plan explicitly requires the children to participate in "First Communion and Confirmation," as well as "CCD" classes, and Elizabeth concedes that she is obligated to facilitate their involvement in those activities. We do not, however, understand the language of the parenting plan to require Elizabeth to also facilitate their attendance at Catholic Mass as ordered by the district court.

We find additional support for our interpretation in the decree's complete silence as to the children's attendance at Catholic Mass. The decree specifically sets forth a detailed 2-week rotation regarding the regular exercise of parenting time. It also sets forth a holiday parenting time arrangement, covering various enumerated holidays. Additionally, the decree has specific language requiring Elizabeth to take the children to CCD classes on her parenting time.

Nowhere, however, is there any mention of a requirement that the parties either have the children attend Catholic Mass on each parent's parenting time or give up that time to the other parent for the other parent to do so. And despite specific allocation of parenting time on a number of holidays, there is no reference to Catholic Holy Days of Obligation as such or a requirement that the parent exercising parenting time on those days bring the children to Mass on those days. In our view, given its silence on these points, the decree is most reasonably interpreted as not addressing attendance at Catholic Mass….

[We thus] conclude that by requiring Elizabeth to either bring the children to Catholic Mass or give up her parenting time, the district court imposed obligations that were not present in the original decree. The district court's order thus constituted a modification of the decree as opposed to a proper order interpreting it. The party seeking to modify visitation has the burden to show a material change in circumstances affecting the best interests of the child. There is no such evidence here. Accordingly, the portions of the district court's order regarding Mass attendance must be vacated….

Thanks to Jim Creigh for the pointer.

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  1. The link to the opinion goes to an error page.

    1. Sorry, fixed, thanks!

  2. I’m not sure I understand what makes the court leery of wading into this matter. It’s not like punting will keep the family from coming back to court again.

    The family court sends the parents to mediation, to agree on whatever they can agree on, and then the court rules on the remaining areas of dispute. I can see spanking the court if it decided sua sponte that the kids should be Catholic, but they didn’t… the parents agreed on this issue.

    1. I can see spanking the court if it decided sua sponte that the kids should be Catholic, but they didn’t… the parents agreed on this issue.

      They may have agreed on the abstract notion that the kids should be raised Catholic, but they did not agree on the issue of what “should be Catholic” means.

      1. “They may have agreed on the abstract notion that the kids should be raised Catholic, but they did not agree on the issue of what ‘should be Catholic’ means.”

        Which is why they’re in court, duh.

        1. Which is why the court is leery of wading into the matter. Duh.

          1. So they’re leery of deciding an issue that’s already decided, and won’t even mention what they are asked to decide?

            Is this a court you practice in? I hope not, because the two “duh”s would lead to “duh”-squared.

            1. So they’re leery of deciding an issue that’s already decided,

              No. They’re leery of deciding an issue that hasn’t been decided: what constitutes raising the child Catholic.

              You should stop playing lawyer, because you’re very bad at it.

              1. You should stop playing sub-intelligent. You’re not smart enough, and it shows.

  3. In this case, because the parents’ agreement specifies specific activities that needed to be done and did not include Mass attendance on their list, I would have relied on the general maxim that specifying details excludes those not specifying, and leave to a case where details weren’t specified the difficult constitutional questions involved in a judge construing this type of agreement.

    1. Most likely, they didn’t agree that the kid(s) had to go to EVERY mass, (sometimes they’re sick, sometimes they’re doing something else that is important) but also wouldn’t have agreed that they should go to NO mass.

      This custody arrangement is going to wind up in court again, next time as a request for sole custody.

      1. 1. Well, the opinion says that “Under the plan, Patrick and Elizabeth had equal parenting time with their children. In the ordinary course, one parent would have the children 5 days one week and 2 days the next week and vice versa the following week.” This suggests that Patrick will have the kids half the Sundays, so if he wants to take them to Mass, they’ll be going about twice a month — less often than some Catholics, more than others.

        2. I can’t see what basis the court would have for giving either parent sole custody.

        1. I did not take JP’s comment as saying, “Hey, one parent or the other deserves sole custody, based on the facts of this case.” Rather, I took his comment to mean, “Dad sounds very religious and takes going to Mass very seriously. If he really believes this is a critical issue for his kids’ well-being, then his only recourse is to head back to court to ask for sole custody . . . it’s the only way the kids will be going to Mass each week. So, I anticipate Dad doing exactly that, in the not-too-distant future.”

          My take, anyway.

        2. “2. I can’t see what basis the court would have for giving either parent sole custody.”

          Split custody is only appropriate where the two parents are capable and willing to share parenting duties with a common aim. Where they are not both willing and capable of sharing such duties, the court must select one of the parents to make decisions regarding the child(ren).

          1. I don’t think there is any pair of parents that always agree on everything. Where neither parent has been an unfit parent or even unambiguously violated the agreement, there’s simply no basis for a court coming in and terminating parental rights just because they disagree on something.

            1. “I don’t think there is any pair of parents that always agree on everything. ”

              Certainly not in divorce court.

              ” there’s simply no basis for a court coming in and terminating parental rights just because they disagree on something.”

              I have zero knowledge of how it works in Nebraska, but under Oregon law (the state I AM familiar with, the court CANNOT order joint custody if either parent objects to joint custody. (ORS 107.169(3))

          2. Or at least sole custody on Sunday.

            I can understand the court’s reluctance to wade into the question of what constitutes raising the kids as Catholics, but they’re already in that by virtue of approving an agreement that calls for that. Handing the kids over to just one of the parents is the only way to get out of it.

            1. It’s not like deciding which religion the kids will participate in isn’t listed specifically as one of the powers of sole custody, or anything.

        3. If there were evidence that the first communion and confirmation and CCD programs at the Catholic church required/tracked attendance at mass (at least mostly, expecting yes sometimes people ill etc.), and that failure to regularly attend meant the children wouldn’t be able to receive first communion and confirmation, would this have changed things because the court wouldn’t have been determining religious matters itself, but accepting a religious ruling by a third party which the parents had in a sense agreed to?

          On the other hand, I expect that most people involved (at least where I am) would be understanding if because of the parents a child could only attend half the time. I’m involved in the program (RCIA) for adults seeking to become Catholic at my local church, so don’t have firsthand knowledge of most of the children’s catechism program (so mostly, but not entirely, hearsay!). That said, just as in the adult program there are certain rites at certain masses where as opposed to the expectation being attend any mass that Sunday, it’s attend the mass at specific time X. I know there are some similar specific dates/times with the childrens’ program.

          1. If there were evidence that the first communion and confirmation and CCD programs at the Catholic church required/tracked attendance at mass (at least mostly, expecting yes sometimes people ill etc.), and that failure to regularly attend meant the children wouldn’t be able to receive first communion and confirmation, would this have changed things because the court wouldn’t have been determining religious matters itself, but accepting a religious ruling by a third party which the parents had in a sense agreed to?

            According to the court, the father did introduce elements of Canon Law as part of his motion. The court rejected these arguments as asking the court to weigh in on matters of religion.

            I think this court should have asked whether the parents agreed to raise the children under Catholic Canon Law. If so, then the court would have the obligation to interpret the Canon to enforce the parties’ agreement.

            1. “I think this court should have asked whether the parents agreed to raise the children under Catholic Canon Law. If so, then the court would have the obligation to interpret the Canon to enforce the parties’ agreement.”

              I think the court was looking for any excuse to kick this from their docket, regardless of whether the problem(s) were resolved or not.

            2. I’m not talking about canon law directly. I’m asking what if the program that the parents agreed to, imposed the requirement?
              If there had been evidence that the people running those confirmation, communion and CCD programs had said e.g. “If your children don’t start coming to mass more than 50% of the time, we’ll have to conclude that you and they aren’t serious, and they will have to leave the program” – what then?

              1. They’d have to join some OTHER Catholic faith…

              2. At my Catholic dioces, my kids had to attend mass 50 weeks/yr. for the two years preceding Confirmation, and attendance was taken.

        4. Professor Vokh,

          On further reflection, I think the wife did violate the agreement.

          The crucial fact not mentioned in your synopsis is that the mother had started taking the daughter to Lutheran services on Sundays. And I think this violated the agreement, and clearly. A decision to raise a child in a faith excludes raising her in a different faith.

          It doesn’t matter whether being raised in the Catholic faith requires or doesn’t require going to mass. But agreeing to raise a child in a faith, whatever it means, excludes the child being raised in a different faith.

          If the father’s lawyer framed the question solely as being raised in the catholic faith means going to catholic mass only, as opposed to what should have been the real matter at issue, being raised in the Catholic faith means not going to Lutheran, Jewish, Islam, Buddhist, or Wiccan services, the client was not well served.

          1. Reader Y,

            While it is an interesting aside, I would note that the Roman Catholic Church has changed its stance on Luther and Lutheranism whereby Lutherans can now attend and participate in Roman Catholic mass and rights.

            1. I don’t think this is relevant. The agreement was to raise her to be a Catholic, not to raise her to be a Lutheran who sometimes participates in Catholic rites.

              It seems to me that an agreement to raise a child in the X faith means that either parent can require that the child not attend Y faith services.

              And I think this is enforcible as a general rule precisely because it doesn’t require knowing or interpreting anything about the details of any particular faith.

              1. Whatever X may be, it’s definitely not Y. That’s all you have to know. That’s why it’s a rule a civil judge can enforce without becoming entangled in religion or running afoul of Establishment Clause issues.

              2. Merely attending Mass doesn’t make you part of that faith, though. I’ve attended Catholic and Methodist services and have never been either.

          2. Catholics can attend Protestant Mass, they just can’t take communion there in most circumstances and remain in full communion with the Catholic Church. There was no indication that she directed the children to take communion. The US Catholics are more okay with it than other Catholics.

  4. While it is beyond question that the Catholic Church requires attendance at mass on all Sundays and Holy Days of Obligation (except for good cause, such as sickness), I believe the court reached the proper decision for its stated reason of not wanting to wade into interpreting religious doctrine. The fault here lies with the father and his attorneys who agreed to the original doctrine. For claiming to be such a stickler and including requirements like attendance at CCD classes (which is certainly not a doctrinal “requirement”), he certainly should have thought to include Sunday mass attendance, one of the most basic doctrinal requirements of the Church.

    1. “The fault here lies with the father and his attorneys who agreed to the original doctrine. For claiming to be such a stickler and including requirements like attendance at CCD classes (which is certainly not a doctrinal “requirement”), he certainly should have thought to include Sunday mass attendance”

      They (dad and his attorney) overlooked it for the most obvious reason… mom had already signed off on raising the kids as Catholics, so OF COURSE they were going to be in church on Sundays, they then went on to detail things that were NOT obvious. They didn’t reckon on mom changing her mind about raising the kids as Catholics after the decree was signed. That IS a mistake, but an understandable one.

      1. Does it hurt being that ignorant Jimmy?

        One cannot be raised Roman Catholic without those rites that you claim are “NOT obvious”. Duhhhhh

  5. I think the real problem here is that the mother had joined a Lutheran church and had started taking the child to Lutheran services on Sundays.

    If the father had requested something less – if instead of insisting the child go to Catholic mass, he had instead asked that the wife not raise her to be a Lutheran – I think he would have won. They did agree she would be raised in the Catholic Faith. And whether or not being raised in the Catholic Faith means attending mass every Sunday, I think it does mean not sending her to non-Catholic services. (Otherwise the agreement would be meaningless. What does it mean to agree to raise a child in a faith if either parent remains free to raise her in any other faith they want?) And I think that aspect could be enforced by an American civil judge.

    I think if the father hadn’t asked asked for all the marbles as his only request, he could have gotten some of what he wanted.

    1. I responded on another of your comments so this is a repeat.

      Roman Catholic Church has changed its stance on Luther and Lutheranism whereby they are now acceptable and can attend mass and participate in Catholic rites. Perhaps if the mother had gone to Methodist, Baptist, et.al. then there might or might not be an issue.

      1. I’m pretty sure that most non-Catholic churches in Douglas County practice open communion. There’s one American Baptist church, a few Missouri Synod Lutheran churches, and a few Wisconsin Lutheran churches. None of those would allow the kids to take communion so long as they were Catholic, which would require more than just attending services on their part.

    2. As FlameCCT, I also responded before, but this isn’t true. Catholics can go to non-Catholic services, they just can’t take communion. There’s a 75-25 chance that they couldn’t take communion there anyway, depending on the exact Lutheran church attended. It was not indicated that they did nor that the other functions attended were were worship.

      The only indication that they are being raised Lutheran is that they attend services. That isn’t sufficient for most Lutherans or even most denominations. If they aren’t taking communion there but they are at the Catholic church they are still being raised as Catholics.

      You can be a Catholic without attending mass. You just don’t stay in full communion. It’s rather normal, even for devout Catholics.

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