Kids' Choice Of Religion In Divorce

Parental Divide

Jeffrey Kendall left Catholicism in 1991 for a fire-and-brimstone church known for aggressive proselytizing. Then his wife, Barbara, left her own mild Jewish faith for a strong Orthodox Judaism. Sparks flew. The Boston-area couple filed for divorce.

That left the three kids. Mom was raising them as Jews, as the couple agreed before marriage. But dad wanted to expose them to his religious beliefs, too.

This week the highest state court in Massachusetts said no. Citing the children's "best interest," the Supreme Judicial Court barred Mr. Kendall from taking his children to church or discussing religion with them at all. His view that one must choose Jesus Christ or be "damned" could cause harm to the kids, the court ruled.

Choice of religion, one of the most private and sacred of American rights, has long been worked out inside families when parents are of different faiths - as they increasing are in American society. But in divorce proceedings, state courts sometimes do intervene on behalf of the children's interest, as a matter of family law.

Yet the boldness of the ruling, which gives Massachusetts courts and psychologists enormous power to choose between faiths in cases of divorce, has caused a national stir. Partly this is attributed to concern that children will be caught in a crossfire between two radically different faiths. Partly it is because the state court revised its former position - that exposing kids to diverse religious views is a healthy thing even when parents divorce.

Legally, Tuesday's 6-to-0 ruling has no immediate national significance, although Mr. Kendall has all but said he plans an appeal to the US Supreme Court. "There has been no actual substantial harm to the children," insists Michael Greco, Mr. Kendall's lawyer. "Talking about heaven, hell, and damnation is what religions do. What business does the court have choosing a religion to prevent potential harm?"

Underneath the case at hand is a concern among civil libertarians that when courts decide what is good for kids, minority religions that differ strongly from the mainstream are the losers.

"In most cases, it is a mistake for the court to referee because courts are not very good psychologists and don't know how parental conflicts may affect children, who are sturdier than most people think," says Carl Schneider, a law professor at the University of Michigan. "But it is also an invitation for judges to do what the Constitution doesn't want them to do - discriminate on the basis of the content of religion."

The issue is not going away any time soon. Studies show increasing numbers of Americans switching faiths or converting, trying new faiths or traditions, or dropping organized religion entirely. More than half of Buddhist and Jewish adherents who marry do so outside the faith. Some 40 percent of Muslims do; the Roman Catholic marriage rate to non-Catholics is between 30 and 40 percent.

STATE laws covering faith and divorce vary. Courts can intervene under the US Constitution if they have a "compelling interest" to do so - such as evidence of harm. Generally, the parent with custody chooses the church, but most courts advise parents to work it out together.

When severe conflict arises, some states encourage parents to introduce children to both faiths. Others, however, opt for "consistency" in children's religious upbringing. Courts often step in if one parent attempts to use religion as a weapon against the other - a charge in the Kendall case.

Mr. Kendall's church, the Boston Church of Christ, has drawn attention for the fervency of its adherents and the strict demands made on members. Court records report many instances of Mr. Kendall vociferously trying to persuade his older son, age 8, that Jewish traditions and practices are wrong.

"We never approached this from the standpoint of which religion was better then the other," says David Cherny, Barbara Kendall's lawyer. "We just relied on the [court's] finding of significant evidence of harm and emotional problems for the children."

"This is a major step forward for the children of America," says David Saperstein of the Religious Action Council for Reformed Judaism in Washington. "We have always felt the best interest of the child trumps a religious interest, especially when it supports a developing religious identity of the child."

Mr. Kendall's lawyer questions the solidity of religious identity when children are younger than 10, as the Kendall kids are. He also says the ruling opens the door for parents and children to say they are "emotionally troubled" when they want to deny another parent's religious tradition, particularly if it is a minority faith.

"You don't have the magnitude of 'harm' here," says Mr. Greco. "You have a fuzzy finding of maybe the kids don't like it and a lower-court judge who argues a future projected possible harm [to the kids]. Does possible emotional distress trump the First Amendment?"

Some experts point out that religion can cause strong and passionate discussions, even inside good marriages. Courts are not allowed to step in and choose faiths in such cases.

"The child is the child of both parents; the child's religious heritage is the heritage of both parents," says Dr. Schneider. "Eventually the child needs to make a decision. But a court can't possibly decide what is good for a child's religious identity. It has no more insight into that question than you and I."

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