The Court Tries to Give God a Restraining Order

W e usually muddle through with our First Amendment and our legislatures, but occasionally there is a reminder that our system was built on the ruins of Christian civilization — the painful and fratricidal breakup of the Western Church, the series of compromises that emerged from it, and the controversies those compromises would entail. Inadvertently, the courts remind us that, in fact, the law cannot quite corral religion into its neat categories.

Look no further than the Maine Supreme Court’s recent ruling upholding a custody order that prohibits Emily Bickford from taking her 13-year-old daughter to Calvary Church in Portland, Maine, or to any religious organization or event, or to “expose her” to any “religious philosophy or the Bible in general.” The father argued that the church was a “dangerous and harmful environment” that had caused his daughter to suffer anxiety after she heard the church’s teachings on the Rapture. The lower court ruled that the church’s language was in fact “psychologically damaging the child” because of how it characterized the father’s own nonbelief. While the court held that both parents must “share parental rights and responsibilities,” only the girl’s father, it decreed, would be allowed to decide questions of whether she could interact with any church members other than her mother.

The Liberty Counsel, a ministry that defends the First Amendment rights of Christians, believes that the order violates the First Amendment rights of the mother. The mother and Liberty Counsel seem determined to bring the case to the Supreme Court. I imagine they will be vindicated there, for several reasons.

The Supreme Court has routinely rejected lower-court rulings that negatively assess religions in psychological or ideological terms. Anthony Kennedy used this to rule in favor of the infamous Colorado cake baker who refused to cater to same-sex weddings. Kennedy avoided ruling on whether the baker had a right to refuse service; instead, he ruled that Colorado was nastily comparing the baker’s religion to Nazism while trying to adjudicate the case.

Second, while the Maine ruling follows the modern era’s latest compromise, trying to determine the “best interests of the child” during custody cases, the facial effect of the order is to revert to an earlier and now widely detested settlement in the post-Reformation era. When the confessional state emerged in the 17th century, the ruler’s religion was presumed to be the tolerated one in the realm; then, in the 19th century, there was a compromise in European states. In Prussia, fathers determined the religion of the child. In Austria, the difference was split by sex: Fathers determined their sons’ religion; mothers, their daughters’. These arrangements fell out of favor over time and were replaced by private decision-making among couples themselves, since involving the law in these family disputes tended to raise the stakes. The Catholic Church famously tried to reassert itself in this order with the encyclical Ne Temere, which obliged Catholics entering into mixed marriages to vow, and obtain from their spouse consent, to raise the children as Catholics. This led to the McCann case in the north of Ireland, in which a Catholic wife trying to obey the decree took her children away from their Protestant father. The case was publicized all over the English-speaking world to advertise the church’s backwardness.

The fact is that, much as they would like to,  the courts really cannot contain or quarantine religion within some private sphere. And a potential Supreme Court decision on the Maine case will not do anything more than carry our own legal order through a few years. Think seriously about the order involved. The court wants to shield the child from “religious philosophy or the Bible in general,” and it can order, for now, a prohibition on church attendance or interaction with Christian members of one church, other than her mother. This is, indeed, a huge encumbrance on the normal instruction and formation in the Christian faith, but the legal order cannot actually forbid instruction and formation in that faith. Certainly not in this culture.

First of all, the mother’s legal saga itself probably will be seen by the child as a form of witness to the faith (perhaps a negative one, but very likely not). The court’s own order magnifies and makes official the church’s own story of persecution. Further, because the Christian faith touches on all sorts of moral questions, it is also impossible to restrict a mother from giving her child any Christian formation. Although the mother is an Evangelical, the instruction that Saint Francis gave to his friars was to “preach by your deeds.” The religious “philosophy” very well undergirds every instruction not to lie, every encouragement to be forthright, honest, clean, studious at school, welcoming and generous with friends and strangers, etc. Even if the mother was somehow further restricted from comment, her judgments would be betrayed by unspoken gestures, the slight expressions of disgust or approval that creep across our faces and reveal our views — truly our souls — long before we articulate them.

But then there is language itself. Even in a culture as biblically illiterate as ours has become, we still inherit a thousand biblical idioms that contain moral judgments or communicate complex narratives from the text itself. We still speak of “good Samaritans” or “a doubting Thomas.” We achieve things “by the skin of our teeth.” Even the mother’s own case is likely to be characterized in this biblical language as “a house divided against itself,” an attempt to “split the baby” that must be submitted to “the powers that be.” And the child’s public schooling will surely have a civil rights unit, which will educate her in Martin Luther King’s “I Have a Dream” speech, a lesson that, likely without ever acknowledging it, will imprint in her the religious philosophy articulated in the book of Amos.

Western laws on these matters are built on the instincts, intuitions, and traditions of various Christian and Jewish religions and sects that were trying to deal with one another peacefully. We struggle with religions that ask to break our laws, that ask for sacrifices we deem inhumane, that legitimize polygamy, or that demand public recognition of the judgments of private legal courts. I have no doubt that some Christian sects, pastors, and priests genuinely harm their congregants. I do my best by my own faith to avoid and correct those things when it’s in my power. The idea that the courts can adjudicate these matters with neutral principles from afar is laughable.

This is not a counsel of despair, however. We’ve found useful principles and heuristics in this collective, centuries-long effort, but we often pretend to have solved questions that are far, far beyond the claimed competence of courts in a republic. We do the best with the tools we have, but as the Gospel says, “The wind blows where it wishes and you hear its sound, but you do not know where it comes from or where it goes.”