Weeping and Gnashing of Teeth

Roland R. Hegstad January/February 1999 Paula Jones and Monica Lewinsky don't appear in the following case. Not a breath of illicit sex taints the record. Nobody's going to get kissed or propositioned against his or her will. If your kids sneak a look at this article, they won't ask about words you don't want in their vocabulary until they're senior citizens.

What you're going to get is a testy child-custody case (Kendall v. Kendall). And a Massachusetts judge's order that children be raised Jewish rather than Christian. Why did the judge make that decision? Was it because the court-appointed guardian ad litem was Jewish? Was it because his report convinced the court that the minor children were in danger of "substantial . . . current and imminent harm"? Or was it because the judge was prejudiced against the father, who, according to the record, believes that those who do not accept the Boston Church of Christ faith are "damned to go to hell," where there will be "weeping and gnashing of teeth"?

Are decisions in custody cases and subsequent restrictions ever influenced by religious prejudice? The answer, it seems, is yes. In fact, prejudice against the least "reasonable" religion within a court's jurisdiction (usually an aggressive minority faith) may result in custody being awarded to the parent representing the dominant faith group. Prejudice may even place restrictions on the minority-faith parent's right to share beliefs with the children.

Says attorney Mitchell A. Tyner, a Silver Spring, Maryland, based lawyer who has handled custody cases in which the religion of a parent played a decisive role: "There's no doubt: If you're a Catholic in Baptist country, a Mormon in Louisiana, or a Jehovah's Witness almost anywhere, and you wear your religion on your sleeve, judges may find reason to let your spouse determine the religious training of your child or children, all, of course, in their best interest."

There are, of course, other reasons a court may rule against a minority-faith parent. And some decisions may even be constitutional and just. But what about cases in which prejudice on the part of the judge motivates a decision?

Till What Do Us Part?

Before there was a case called Kendall v. Kendall, there was a Barbara Zeitler (Jewish) and a Jeffrey Kendall (Catholic). In 1988 they stood at an altar and pledged to love, honor, and cherish until death would part them. At that blissful moment they little realized that religious differences would do what death would not.

In 1991 Jeffrey joined the Boston Church of Christ, which the courts characterize as "fundamentalist." In 1994 Barbara adopted Orthodox Judaism. Thus began their personal "weeping and gnashing of teeth," with three minors caught in the cross fire of competing religious convictions that, eventually, led to the demise of their "till death do us part" pledge in August 1996.

More lasting has been their concern for the eternal destiny of their three minor children, Ariel, Moriah, and Rebekah (aged 7, 5, and 3 at the time of the divorce). Jeffrey testified before the court that he would "never stop trying to save his children." Their mother, meanwhile, sought to limit the children's exposure to Boston Temple's hellfire and brimstone theology. She received custody. The court later, in response to her plea, placed restrictions on Jeffrey's right to give religious instruction.

The troubling question arising from Kendall v. Kendall is How can a court limit someone's free exercise of religion in something so fundamental as a parent's right to give religious instruction to his or her children?


Danger: Religious Exposure

Courts encounter troubling questions regarding religious liberty when they (1) determine that religious differences are the basis for the divorce; (2) grant custody based on the religious preference of a parent, and (3) regulate a parent's right to give religious instruction. All three situations figured in Kendall v. Kendall. The court acts constitutionally in only such cases in which evidence conclusively demonstrates a threat to the mental and/or physical health of the minor child.


In Kendall the probate and family court found it "substantially damaging to the children to leave each parent free to expose the children as he or she wishes to his or her religion." The resulting judgment of divorce contained the following restrictions: "Neither [parent] may indoctrinate the children in a manner which substantially promotes their . . . alienation from either parent or their rejection of either parent. The defendant (Jeffrey Kendall) shall not take the children to his church (whether to church services or Sunday School or church educational programs); nor engage them in prayer or Bible study if it promotes rejection rather than acceptance of their mother or their own Jewish self-identity. The [defendant] shall not share his religious beliefs with the children if those beliefs cause the children significant emotional distress or worry about their mother or about themselves."

The court (magnanimously?) conceded that J. Kendall could have pictures of Jesus Christ on his residence walls without losing his visitation rights. But he could not take his children to "religious services at which they receive the message that adults or children who do not accept Jesus Christ as their Lord and Savior are destined to burn in hell." He could, however, have the children with him "at events involving family traditions at Christmas and Easter." All this in harmony with court precedent (Felton v. Felton) that individual liberties may be restricted where there is a compelling interest.


Evidence of Substantial Harm

How did both the probate and family court and, on appeal from Jeffrey Kendall, the Supreme Judicial Court of Massachusetts determine that "substantial harm" to the children compelled them to limit the religious liberties of their father? Both courts cited the following findings:

In early 1995 the defendant threatened to cut off Ariel's "clothing fringes" [tzitzis]. The court noted that Jeffrey later apologized. He was alleged also to have threatened to cut off Ariel's "payes" [sideburns]. The court did not "find credible the . . . explanation that he did so at Ariel's request."
The Boston Church of Christ services to which Jeffrey took his children "included teachings that those who do not accept [its] faith are damned to go to hell, where there will be 'weeping and gnashing of teeth.'" Exposure to this teaching, said the court, caused Ari to conclude that his mother "may go to hell, and that this causes him substantial worry and upset."
The courts credited the conclusion of the court-appointed guardian ad litem, Michael Goldberg, Ph.D., that Jeffrey's behavior toward his children "fosters negative and distorted images of the Jewish culture." Jeffrey "opposes his children being taught the history of the Holocaust." Efforts to convince Ari that his religion was wrong damaged his "formal self-identification" as a Jew and was tantamount to "convincing him that his soul is damaged or inadequate." Kendall's actions had put the children "in a position in which they are perilously close to being forced to choose between their parents, and to reject one." Ari, said Goldberg, "is emotionally distressed by the conflict between his strong desire for affection and approval from [his father] and his desire to maintain his Jewish religious practice." As a direct result, "there has been a decline in his motivation and academic performance."
Goldberg's report to the court found Ari to be "understandably uncomfortable and unhappy when he 'has to do the stuff [he's] not supposed to do on Shabbas,'" and thus is put in the "no-win dilemma" of "pleasing and obeying" one parent while displeasing the other and his own "internalized beliefs about how the world is 'supposed' to function on the Sabbath."
The other children's well-being was not neglected. Moriah's distress was noted, as well as her understanding of her religion. "I'm not Christian. I'm Jewish. Mom is Jewish. My dad is Christian. My brother is Jewish and my sister is Jewish." Goldberg found her testimony "comfortable," "age-appropriate," "accurate," and "most important of all, it shows that she can tolerate the knowledge of her parents' religious differences."
Based on Goldberg's report, the judge found that anything "likely to promote Rebekah's identity as fundamentally different from that of her mother and siblings" would leave her with the detrimental "sense of not belonging in her own home." Of "substantial detriment" would be their father's beliefs that would likely cause them to view their mother negatively, as a person who would be punished for her sins. Said the judge: "For children of tender years (and it seems to me that this likely means at least up to age 12), I find directly contradictory messages from trusted adults to be solidly contrary to their best interests."

Judicial Discretion

Jeffrey Kendall's appeal to the Supreme Judicial Court of Massachusetts confronted the justices with, as they confessed, not only "questions of law and fact," but of "discretion" as well. The court admitted that whether the case involved the "substantial harm" required to justify interference with the defendant's religious interest was "a close question." For example, Goldberg had found "only a few instances of concrete present harm to the children." He did not find "current damage to the children so severe that it has caused them to suffer a psychotic break, or to have a 'formal psychiatric diagnosis.'" But, said the court, "case law does not require the court to wait for formal psychiatric breakdown, and the evidence paints a strong picture of the reasonably projected course if the children continue to be caught by the cross fire of their parents' religious difference."

Concluded the judicial court, quoting from the probate and family court record: "The question that comes to the courts is whether, in particular circumstances, such exposures are disturbing a child to its substantial injury, physical or emotional, and will have a like harmful tendency for the future." Applying that standard to this case, the court affirmed "substantial evidence of current and imminent harm, to these 7-, 5-, and 3-year-old children."

"Substantial harm" constitutes the "compelling interest" required to justify interference with the religious liberty guarantees under the Massachusetts constitution. As the probate and family court put it, and the Supreme Judicial Court of Massachusetts affirmed, parental rights "do not clothe parents with life-and-death authority over their children." Promoting the best interests of the children, said the court, is an interest sufficiently compelling to impose a burden on the defendant's religious rights. The justices determined that the divorce settlement did not establish Judaism as the religion to govern the children's upbringing; rather it merely recognized the preference that the parties allowed to develop and had encouraged. The court's focus in this regard was not on possible fostering of "excessive government entanglement" nor on the "merit . . . of the parties' respective religious teachings," but on the "emotional or physical harm to the children."

Justice: The Cutting Edge

With a different focus from that of the Massachusetts court, a wise judge once used the threat of physical harm to a child to achieve justice. Two women gave birth to sons within three days. One baby died. In the night, its mother replaced the live baby from the other mother's side with the dead one. In the morning the live baby's mother quickly determined what had happened, and they both stood before the wise judge, who listened to their stories. He then asked that a sword be brought, handed it to an aide, and directed that the baby be halved, a part given to each mother. The true mother pleaded that her child not be harmed, but given to the other woman. The pretender's calloused response--"Let it be neither mine nor yours; divide it!"--was all the evidence the judge needed to know who the true mother was.

Few cases of child custody are so easily resolved today, particularly when religious convictions are the roots of the divorce. Few parents will settle for half. They can't, when the destination of compromise is hell. And despite their best intentions, courts often fall short of justice.


The Spirit of Our Age

Says attorney Mitchell A. Tyner: "The greatest problem facing advocates of religious freedom in Western societies today is simply the spirit of the age. Government--and, by extension, society--often does not take seriously those who take religion seriously."

In Mendez v. Mendez, a case involving a Catholic father and a Jehovah's Witness mother, psychologist Eli Levy testified: "I believe that being raised a Jehovah's Witness would not be in the best interest of the child, given the fact that the principles, the way I understand them, do not fit in the Western way of life in this society." The problem with Jehovah's Witnesses, said Levy, is that they are "different."

Perhaps Dr. Levy had forgotten that God, through Moses, commanded the Israelites to wear a blue fringe on their garments to distinguish them from the homogenized heathen society of their age. "Ye shall not go after . . . the gods of the people . . . round about you. . . . Ye shall diligently keep the commandments of the Lord your God, and his testimonies, and his statutes, which he hath commanded thee" (Deuteronomy 6:14-17). His people were not to marry those not of their faith. "For thou art an holy people . . . a special people" (Deuteronomy 7:6). Such counsel is certainly not in harmony with the spirit of the age. Members of the Jehovah's Witnesses and Jeffrey Kendall's "fundamentalist" Boston Church of Christ may be "peculiar"--but that, after all, is what God called His people to be (Deuteronomy 14:2; 1 Peter 2:9). Of course, members of both faith communions may err in their interpretation of peculiarity, but the state shouldn't make that determination.

Prejudice also strides into the courtroom with a discernable chip on its shoulder. That idiomatic expression translates into bias against an unpopular religion.

How better to document this danger than through the minority dissent in Mendez v. Mendez. The setting: the Florida District Court of Appeal, Third District, had in April 1987 affirmed the judgment of the trial court in granting custody of their children to Mr. Mendez, a Catholic, rather than to his Jehovah's Witness wife. On November 10, 1987, the court of appeal denied motions for rehearing (based on religious prejudice), calling the case a "quite ordinary child-custody case." But three of the nine-judge court disagreed. Judge Baskin's dissent stated:

"What does emerge from the record is a demonstration of the experts' personal biases against the mother's religion. Their disdain for the mother's religion induced them to speculate as to the possibility of harm to the child in the future even though no evidence of harm existed. The trail court was obviously persuaded by their less than-objective considerations for removing the child from the custody of her natural mother and its judgment should not stand.

"To be forced to choose between one's religion and one's child is repugnant to a society based on constitutional principles. The soft voice of the minority should be audible to a responsible court sensitive to constitutional rights which include the right to practice an unpopular religion."

On March 7, 1988, the United States Supreme Court denied review. Case closed.

Alleged in Judge Baskin's dissent is prejudice on the part of the experts. What about the judges?

It's a tough call. For one reason, judges know how to tailor their "suit" without revealing whether they have cut it on the bias. And, as Dorinda N. Noble observes in Custody Contest: How to Divide and Reassemble a Child: "The reality is that the exercise of judicial discretion is far less a product of the judge's learning than of his or her temperament, background, interests, and biases" (p. 64).

But occasionally a court with 20-20 judicial vision will read the bottom line. In a Pennsylvania case, Stolarick v. Novak, the trial court determined that the father was an exemplary parent. But it awarded the mother custody because "the court disapproved of the father's fundamentalist Christian beliefs and his enrollment of the children in a religious school."

Injudiciously, the trial court stated: "It is the degree to which the father has pursued 'life in the Lord' that has deprived the children of social and educational opportunities and has presented them with a single-minded approach to life that is very restricted in view and allows for no spontaneity, artistic expression or individual development of rationale or logic or even just pursuit of ordinary curiosity. These children are being raised in a sterile world with very rigid precepts, with no allowance for difference of opinion, and no greater breadth than the doctrinaire limits of the religious beliefs."

On appeal, the superior court reversed, holding the statements of the trial judge to be unsupported by the record.

Said the court: "The record in the instant case reveals no basis for the trial court's belief that the children's horizons would be broadened by removing them from the 'sterile' environment of a religiously oriented school. Both parents adore the children and are genuinely interested in playing a role in their future. For five years since the separation of their parents, however, they have lived with their father in a single residential home, and their father has ably devoted himself to their care. Under these circumstances, the trial court abused its discretion when it suddenly took them from the only home and family they have known and awarded them to another whose facilities, if not inadequate, were less desirable and less familiar than those who which the children had been accustomed."

Maybe it's time for another wise judge, scales of justice in his hand, to step forward. One whose decisions will be so transparently wise and just that all will see that the wisdom of God is in him.

Any Solomons out there?


Roland R. Hegstad, former editor of Liberty, is now editor of Perspective Digest.

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Article Author: Roland R. Hegstad