Court enforcement of contracts, and deciding whether "Protestant" includes Mormons

[Paul Finkelman]

there was a case on this in Hawaii a few years ago involving a private high school (Kamehameha School I believe) that requored the hiring of Protestants and there was an issue whether a Mormon counted.  EEOC v. Kamehameha Schools/Bishop Estate, 900 F. 2d 458 (1993). School lost but not on whether a Mormon was a Protestant, but on grounds that the school was not sufficiently religious to get and exemption from EEOC regs.

Paul Finkelman
President William McKinley Distinguished Professor of Law
     and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
pfink at albanylaw.edu
>>> Eric Rassbach <erassbach at becketfund.org> 10/10/08 5:39 PM >>>
My guess is that these lawsuits would only very infrequently present themselves as actual theological controversies to a court, since most contract parties who cared to include this sort of provision would know which theological controversies to draft around (e.g. Orthodox Jews would make clear that only Orthodox Judaism would be allowed).  And in those that did, the difference between the two would be clear enough that a court could decide the issue without delving into theology (E.g. Jewish v. Roman Catholic or Santeria v. Christianity (Santeros view Santeria as a different religion than Christianity, though they might view themselves as adherents of both)).  In a case that really did force the court to address a theological categorization controversy, e.g. "must be raised in the Jewish faith" and Reconstructionist Judaism, then the particular contract provision might have to be treated as unenforceable by a civil court.

Regarding the Arkansas case, some data from the LDS website - http://www.lds.org/pa/display/0,17884,4890-1,00.html:


Your Identification

An official record of each individual is kept by military officials, and church membership may be included as a part of this record. Generally, individuals in the service are classified as Jews, Protestants, or Catholics. Attempts have been made to include members of The Church of Jesus Christ of Latter-day Saints in the Protestant category, but we are not Protestants. Protestants are members of those churches which make up the main body of non-Jewish and non-Catholic denominations.

We are separate, not to be included with any of the three other groups. Specify that you are a member of The Church of Jesus Christ of Latter-day Saints, and if anyone tries to list you as a Protestant, do not permit it. In case of emergency, for example, proper identification as a member of the Church will be of vital importance. Therefore, when you register with the military service, list yourself as a member of The Church of Jesus Christ of Latter-day Saints.






-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, October 10, 2008 5:08 PM
To: Law & Religion issues for Law Academics
Subject: Court enforcement of contracts, and deciding whether "Protestant" includes Mormons

        Any thoughts about this case?  In principle, I think that
there's no First Amendment problem with enforcing contracts that
restrict parties' speech and religious practice.  But I wonder whether
matters are different when the contract interpretation calls for
theological decisions, such as whether Mormonism is or is not
Protestant.  (Or is it so clear that Mormonism is "another religious
belief system/faith" from Protestantism, broad as the latter category
may be, that there's no problem here, even though there would be a
problem with deciding whether Reconstructionist Judaism is Judaism?  How
about whether Jews for Jesus qualifies as Judaism, or Santeria qualifies
as Christianity?)

        Eugene

Rownak v. Rownak, 2008 WL 4491823 (Ark.App.):

This case concerns a finding of contempt against appellant Joel Mark
Rownak for failing to follow his express agreement with appellee Lisa
Monette Rownak, his ex-wife, about the religious upbringing of their two
sons. The parties' agreement was approved by the circuit court and set
forth in its 2005 divorce decree, which awarded custody of the children
to appellant and awarded visitation rights to appellee. The following
paragraph of the divorce decree reflects the agreement and the court's
approval of it:  "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."

In November 2006 appellee filed a petition for change of custody or,
alternatively, for modification of visitation, and in March 2007 she
filed a petition for contempt, alleging that appellant had violated the
paragraph of the decree at issue. Both parties presented testimony and
evidence in a hearing on the petitions. The court found appellant to be
in contempt and, in its written order entered on May 18, 2007, addressed
the issue as follows:  "[T]he matter is one of contract interpretation
if the objective is valid and not void as to public policy or a crime in
the state of Arkansas. It is the finding of this Court that parents can
agree how to raise their children as to their religious beliefs and
training, in this instance, and that such a provision is not void as
against public policy in the state of Arkansas and that is does not
cause a crime."

Given that finding, the defendant candidly acknowledged that he has
promoted the LDS [Latter-Day Saints] faith to his sons. The plaintiff
has not consented to the promotion of that faith to her sons and has
objected to its promotion by the defendant.
The court found that appellant had violated the 2005 order "by promoting
another religious belief system/faith" to his sons without appellee's
consent, and appellant was ordered to "cease all such contemptuous
conduct immediately."  [FN1: Custody was changed to appellee based upon
the court's finding of a material change in circumstances, including the
factor of appellant's changing his church membership from Southern
Baptist to LDS. Appellant does not challenge this finding on appeal.]
...

[T]he injunction about which appellant complains has for its basis a
valid contract between the parties and does not violate appellant's
constitutional rights. The circuit court's order merely effectuated the
parties' agreement, which was made a part of the divorce decree with the
court's approval, regarding the religious upbringing of their children.
In its order of contempt, the court found it to be undisputed that
appellant had requested that this provision be included in the divorce
decree and that appellee had acquiesced in his request. 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 and found that
appellant had promoted the LDS faith to his sons. The court noted that
appellee had not consented to appellant's promotion of the faith to them
and, indeed, had objected to his promoting it....

The circuit court found appellant in contempt of the parties' agreed
order after hearing testimony that, without appellee's consent and
despite her objections, appellant and his wife promoted the LDS faith to
appellant and appellee's sons through scripture reading and daily
prayer, appellant involved one of the boys in Boy Scout activities at
the LDS church, and one of them had been baptized in the church. Again,
it was at appellant's instigation that the decree of divorce included a
provision enjoining him from promoting a different faith to his sons
without appellee's consent. The circuit court did not abuse its
discretion by refusing to clarify specific and future acts that this
provision of the parties' contract sought to prevent....
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