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

[Alan Leigh Armstrong]

I think Eric has to right,
In order to make it enforceable without the court getting into  
theology, you need an easy test.
Something like the following should work.
"The church has to recite the Apostle's Creed or the Nicene Creed at  
least once each calendar year and shall not be under the governance  
of the Pope."

Alan Armstrong
Huntington Beach, California

On Oct 10, 2008, at 2:39 PM, Eric Rassbach wrote:

> 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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