Ball v. Ball (CA1 12/10/20)

Unlike the previous post, this case actually addresses the ecclesiastical abstention doctrine. Parents divorce and have a parenting plan. The plan is set forth on a court-provided form and includes a box as to religious education. Two boxes were checked: the first box states, “Each parent may take the minor children to a church of place of worship of his or her choice while the minor children are in his or her care.” The second box states, “Both parents agree the minor children may be instructed in the ____ faith.” The blank is handwritten with the word “Christian.” Father later joins The Church of Jesus Christ of Latter-day Saints. He takes his children to church and mother objects. The superior court judge conducts an evidentiary hearing and considers testimony from a youth ministry leader who testified that the father’s church is not Christian. After considering this and other evidence, the trial court agrees. The court of appeals reverses. First, the first box unambiguously states that either parent may take the children to any place of worship. Second, the use of the word “may” indicates permissive intent, and it allows for instruction in the Christian faith but does not require it. The court of appeals could end it there, but we would be left wondering what the trial judge was thinking in conducting an evidentiary hearing on religious belief. The court of appeals continues and answers this by holding the trial court violated the First Amendment when it ruled father’s church is not Christian or part of the Christian Faith. The First Amendment prohibits the exact inquiry made by the trial court. One would expect an evidentiary hearing on Christian beliefs is so far out-of-bounds a trial court would have paused before it “dove into an ecclesiastical matter.” The trial court exercised an authority and a competency it is constitutionally barred from asserting. Perhaps following a fill-in-the-blank kiosk form invited such an intrusion. The court of appeals reminds litigants that courts will enforce specific agreements, but courts may not construe agreements that compel religious inquiry. Poorly drafted agreements as to religious upbringing of children are not enforceable. “The ambiguities surrounding the phrase ‘the Christian faith’ thrust the court directly into a matter of theological controversy in which it could not take part.”

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