The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.