The Volokh Conspiracy
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Agreement That Children "Shall Be Raised in the Orthodox Jewish Tradition" Is Unenforceable
In Connecticut Superior Court Judge Eddie Rodriguez's opinion in Breiner v. Breiner (handed down Sept. 15 but just posted on Westlaw), the dispute was about whether plaintiff mother had breached an agreed-to provision in a 2017 parenting plan, "The parties agree the children shall be raised in the Orthodox Jewish tradition, and shall support those values with the children." Defendant father argued,
Mother has put the children in an untenable position where the development of their Jewish identity has been seriously compromised, undermining father's efforts to maintain an Orthodox Jewish home that is observant of the Orthodox Jewish tradition, and mother's conduct has resulted in a substantial change in circumstances that supports reconsideration of the amount of time mother enjoys with parental access to the children.
For example, mother has invited a non-Jewish male companion to live with her in the family home since March, 2020. Upon information and belief, the couple are in a dating relationship and he shares the parties' former marital bedroom with the plaintiff. Under any Orthodox tenet, this choice is the antithesis of supporting traditional Orthodox [Jewish] values. Further, mother is not observant of the Jewish holidays in Orthodox tradition and does not follow or support the traditions (and Jewish law) associated with the values in which the children were raised during the marriage."
Mother argued that "she has continued to raise the minor children in the Orthodox Jewish tradition, but that the defendant's attitude has been rigid and fails to recognize that the children [age 15 and 13] have established their own religious identities. Furthermore, the defendant is imposing his level of religious observance upon the plaintiff and the children, causing great anxiety and strain for the children. Lastly, the plaintiff argues that the defendant seeks to control both the plaintiff and the minor children, alleging that the defendant has undermined their religious observance to their great distress."
The court concluded that the Establishment Clause and the Free Exercise Clause precluded the enforcement of such a provision:
[A]ny interpretation, application, and enforcement of this [rather vague] provision would foster an excessive government entanglement with religion, as the Court's own conduct would run far afoul of the government neutrality required under the constitution. Moreover, the judiciary is not empowered with the authority to supervise a child's religious upbringing, which would naturally be required in order to enforce such a provision….
[E]nforcement would [also] violate the free exercise clause…. "A court oversteps constitutional limitations when it purports to compel a parent to adopt a particular religious lifestyle. To the contrary, [i]t is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise …. A religious upbringing provision should not, and cannot be enforced to the extent that it violates a parent's legitimate due process right to express oneself and live freely." … In the present case, even if the Court were to uphold the provision under the establishment clause, it would inherently require that this Court mandate the plaintiff to provide a specific religious upbringing, which in turn, would force the plaintiff to abide by a specific lifestyle commensurate with the religious traditions at issue.
And that was true despite the fact that the provision was part of a parenting plan that the parties had earlier agreed to, and thus essentially a contract:
Although the Court has already determined that enforcement of the provision would violate the first amendment to the United States constitution, and Connecticut's own constitution, the Court will address the merits of the defendant's [contract] argument.
The defendant argues that the plaintiff was well aware of the defendant's expectations and views of what constitutes Jewish Orthodoxy. In support of this argument, the defendant claims that he "ceded his goal of more expansive parenting time for what he believed was a genuine and binding commitment that the Plaintiff/Mother would honor the agreement to raise the children in the 'Orthodox Jewish tradition,' a term which she well-understood in context of Defendant/Father's longstanding practices," and which constitutes the defendant's "consideration" in this bargain. The defendant further argues that the plaintiff's agreement to the provision, and her subsequent breach of the provision, constitutes fraud in the inducement.
"To form a valid and binding contract in Connecticut, there must be a mutual understanding of the terms that are definite and certain between the parties…. To constitute an offer and acceptance sufficient to create an enforceable contract, each must be found to have been based on an identical understanding by the parties…. So long as any essential matters are left open for further consideration, the contract is not complete." …
[T]he evidence demonstrates that both parties possessed their own personal interpretations of "Orthodox Jewish tradition" at the time that the agreement was reached, and that each party carries their respective interpretation to this day. At no time was the parties' mutual understanding of the terms definite, certain or identical. There was never a "meeting of the minds" between the parties as to what they intended "Orthodox Jewish tradition" to be, and the provision cannot be considered a valid and binding one.
Moreover, the provision is unenforceable for the reason that it violates public policy…. [T]he United States and Connecticut constitutions provide historically strong legislation protecting the individual's right to freedom of religion, and prevents the government from either advancing or inhibiting religion….
My sense is that some courts would be open to enforcement of some specific provisions governing the religious upbringing of children, but not ones that are as general and imprecise as "shall be raised in the Orthodox Jewish tradition."
