When Ex-Spouses Take a Child's Religion to Court

Joseph Reyes, an Afghanistan veteran and law student, converted to Judaism when he married Rebecca Shapiro in 2004. When they split up in 2008, Rebecca won primary custody of their daughter and Joseph got regular visitation. The Reyeses had allegedly agreed to raise their child Jewish, but Joseph, seeking to expose his 3-year-old to his Catholic faith, had her baptized last November. When Rebecca found out, she obtained a temporary restraining order prohibiting Joseph from "exposing Ela Reyes to any other religion other than the Jewish religion during his visitation." But Joseph then took his daughter to Catholic mass on Jan. 17, with a local TV news crew in tow, prompting his ex-wife's lawyers to demand he be held in criminal contempt—with a maximum punishment of six months in prison. Can a court decide what religion your child will be?

Joseph Reyes says no, and once he decided to fight for his religious liberty in the courts of cable television, complicated legal issues were reduced to black and white. Headlines shrieked that a father faced jail time for exposing his daughter to God. The case sounds very constitutional. But instead of legal analysis we've mostly gotten typically nasty divorce-court spitballs. For instance, Joseph now says he wasn't really Jewish. He says he converted to Judaism "under duress" to mollify his in-laws, and that Rebecca is a bully. And he and his lawyer requested, and won, a new judge because the original judge, Edward Jordan, is Jewish. None of this has anything to do with the actual case, but it does get the blood pressure soaring.

Since Joseph doesn't dispute that he violated the restraining order, the only important issue here is whether a family-court judge can order divorcing spouses to raise a child in just one religion. In her court pleadings, Rebecca Reyes argues that she has sole custody of Ela, that the couple agreed to raise the child Jewish and sent her to a Jewish preschool, and that exposure to another religion would "confuse" her.

Joseph, in his pleadings, says Ela was not harmed by her baptism, and that under Illinois law a noncustodial parent can attend religious services with his or her child unless there is "proof of harm to the child" or it "interferes with the custodial parent's selection of the child's religion." Finally, Joseph says the restraining order violates his religious freedom. And that's the stuff headlines are made of.

I polled family lawyers as to how often they had come across an order like Judge Jordan's. Some said it's uncommon; others disagreed. But one thing is clear: family courts interfere with constitutional freedoms all the time. A family-court judge infringes on your right to free speech when he bars you from speaking ill of your ex-husband in front on the kids. She can prevent you from interstate travel if you seek to move your child away from your ex. The Bill of Rights isn't the last word in divorce proceedings, but when a court restrains fundamental constitutional freedoms, like speech, travel, or religion, it's usually for an important reason: the best interest of your child. This is the interest we hear about least in the Reyes case, amid the fulminating over parental rights.

As Joseph Gitlin, a prominent Chicago family lawyer, points out, in Illinois the custodial parent is permitted, by statute, to "determine the child's upbringing, including, but not limited to, his education, health care, and religious training." This necessarily means the other parent will be shut out of such decisions. The tricky question in the Reyes case is whether religion is more a zero-sum proposition or a buffet table. How does exposing a child to two religions differ from exposing her to two languages or teaching her to play two instruments?

Missouri family lawyer Michael Albano warns that back when family-court judges could micromanage parental religious practices, lesbians, for instance, were denied custody and could not even associate with their partners. "Courts cannot police every situation," he says, and that means "generally allowing both parents to expose the child to their religious beliefs." When forced to, some state courts have struck down divorce decrees requiring a single religion for a child; others have upheld them. As Judge Jordan learned, attempting to balance one parent's religious freedom against the other parent's religious exceptionalism rarely works, because, as Joe Gitlin puts it, for most of us "there's always only one way to heaven, and it's mine." But either way, every lawyer I spoke to agreed that there are plenty of good ways to modify custody arrangements. Violating those arrangements on live television isn't one of them