Mormons May Not Be Protestants But Judges Are Certainly Not Theologians

Separation of church and state runs both ways. But these days, it's not too often that I come across stories in which the government interferes in religious affairs. This divorce case from Arkansas (H/T to the fascinating Howard Friedman blog dedicated to the subject of the religion clauses) comes pretty close.

The essence of the story is largely as Prof. Friedman describes: Mom and Dad get a divorce and reach an agreement concerning the terms of the split. A clause in their divorce agreement, which then becomes part of the court's decree upon stipulation, reads:

Based upon the express agreement of the parties that the minor children be raised in the Protestant faith, the Court orders that each party hereto is enjoined from promoting another religious belief system/faith to the minor children unless both parties should consent.

The decree is entered by stipulation of the parties in 2005. Dad converts to the LDS church in 2006. In 2007, Mom files for a contempt citation against Dad for teaching Mormonism* to the kids. She didn't get a contempt citation but the trial court did slap an injunction on Dad to prevent him from teaching the LDS faith to his kids. Dad didn't appeal but instead filed what amounts to a motion for reconsideration, which he lost. Then he appealed that decision, and loses again in the published opinion linked above.

So here's the interesting thing. The trial court took evidence on the issue of whether the LDS church is a Protestant faith: "Based upon testimony by appellant’s wife, a statement by the president of LDS that was publicized on the church’s website, and testimony by appellant, the court found the LDS church not to be a Protestant faith... ." Nowhere, it seems, did anyone attempt to define what characterizes the "Protestant faith." It's not clear to me whether Dad even claimed that Mormons* were Protestants; the opinion suggests but does not come out and say that Dad admitted that the LDS church is something other than a Protestant faith.

Now, from my perspective, it seems a good question as to whether Mormons are Protestant or not. They worship Jesus, like all Christians, and they have their own, decidedly mystical and transcendent take on cosmology and the afterlife. Their beliefs and actions don't strike me as any more or less bizarre than other sorts of concepts Protestants find acceptable, like the Rapture, exorcisms, speaking in tongues, or faith healing. Mormons certainly aren't Catholics and they're also certainly not Orthodox. But when it comes to parsing out what kinds of beliefs fall into what categories, I'm not exactly an expert because I find the exercise to be of only limited value.

But law is a different matter, an arena in which I do feel comfortable offering some more sophisticated sorts of analysis. The law -- in the form of rules of evidence, civil procedure, and standards of judicial conduct -- creates a framework why which courts can learn about and make decisions on matters beyond the expertise of the finder of fact. We sort out questions of law from questions of fact. We take evidence on questions of fact. We get expert witnesses to sort out and interpret those questions of fact to help determine the ultimate issues in a case, upon which the resolution of the legal questions turns. This case gives a good example of that: divorce decree prohibits the teaching of a non-protestant faith to the children; Dad teaches LDS faith to children. Has he violated the decree? The answer turns on whether or not the LDS faith is a Protestant faith.

So this is where I think there's a problem. Unless there is an admission or a stipulation that LDS is not Protestant, a Court is not a theological forum. Your typical judge is not a theologian. Even if he were, the judge would be relying on facts learned outside of the proceedings at bar and probably acquired by way of unsworn fact-gathering that took place in a fashion unregulated by the rules of evidence and therefore completely inadmissible. Which means that in order to reach the conclusion that LDS is not Protestant, the Court needed someone with some degree of theological expertise to reach its conclusion.

Instead, the trial court and the appellate court seemed quite satisfied that the trial court was within its sphere of competence to make that decision unassisted, based only on something from an LDS website and unspeficied testimony of the parties. I don't have the benefit of the record of the trial court's proceedings the way the appellate court did. So maybe the admission that would satisfy me was there. But in its absence, we are left without a definition of what it is to be "Protestant," no understanding of what it is about the LDS faith that is not Protestant, and instead only the apparent consensus of a small group of bench officers in Arkansas that it is just so. This seems to me to be an insufficient foundation upon which to base a judicial decision. Without an evidentiary showing (or in the alternative, a stipulation or admission) that LDS is not Protestant, I would not have made the order that the court did here.

As for the propriety of having a religion-restrictive clause in the divorce decree in the first place, yes, I'd prefer it not be in there. But at the time Mom and Dad split up, this was apparently important to them and they agreed to it. I agree entirely with the proposition that parents have the Constitutional right to raise their children as they see fit and that includes indoctrinating their children in the religion that they deem appropriate. Even if it's not one I agree with. So if it's a material term to the division of parental authority, and something the parents agree on and intend to bind themselves to as part of their larger deal, I don't have a real problem with considering in part of the contract and therefore part of a stipulated court order. I don't see that there would be any other alternative to the court but to adopt and later enforce the stipulated decree.

Dad's argument on appeal was that, having converted to Mormonism, he now was under a religious obligation to teach the doctrines of that faith to his children. He contended that enforcement of the order therefore restricted his ability to freely practice his new religion. Which would be correct, except for one small flaw in his argument -- he had previously contracted away his right to do that by entering into the stipulated decree. My view of the right is that it's his to do with as he pleases. What he did here was to contract that right away. He did not contract away his right to change his own faith, rather, he contracted away his right to raise his children in anything but a particular manner. That was a material inducement for Mom to enter into the contract.

If he had contracted away his right to convert personally, I might be a little more skeptical, a little bit more willing to find the term unconscionable. But that's not an issue raised by this case so the question need not be addressed now.

I say, he could contract away his right to teach non-Protestant faiths to his children and the court can and should enforce that contract. But I also say, it's not entirely clear from the record that he violated that provision of his contract and the opinion leaves me with a substantial suspicion that the judges, at all levels, relied upon their own religious faith and knowledge to reach the conclusion they did. In that sense, I think the opinion was improper.

UPDATE: I'm always gratified when one of my intellectual heroes looks at an issue and comes up with, more or less, the same take as me.


* It occurs to me that members of the LDS church don't use the word "Mormons" to describe themselves all that often. I know the word comes from the title of one of their holy books. But it may not be technically right to refer to a member of the LDS church as a Mormon, and if so, I apologize for using the terms interchangably here, that use of those words is not intended to give insult. If I'm using these words and phrases imprecisely or improperly, I invite a member of the LDS faith to comment on the preferred nomenclature.