A lawyer friend of mine tipped me off to this case, Weisberger v. Weisberger, which was so outrageous I had to write about it. It concerns a Hasidic Jewish couple from Brooklyn that were married with three children, then divorced after the woman came out as a lesbian.
The parties were married on March 5, 2002. In 2005, the mother told the father that she could not tolerate having sexual relations with men, and that she was sexually attracted to women. The parties were divorced by a judgment of divorce dated March 6, 2009. They have three children together, a son and two daughters. At the time of the divorce, the parties’ older daughter was five years old, their son was three years old, and their younger daughter was two years old.
As part of the divorce agreement, both parents agreed to give the children “a Hasidic upbringing… compatible with that of their families”.
In November 2012, three years later, the father went back to court with a new demand. He complained that his ex-wife was no longer observant and wasn’t requiring their children to follow religious rules at home. Worst of all, she wasn’t hiding her sexual orientation from them as he had assumed she would.
In support of the motion, the father alleged that the mother had radically changed her lifestyle in a way that conflicted with the parties’ religious upbringing clause. Although the father acknowledged that at the time he entered into the stipulation of settlement he expected the mother’s future intimate relationships would be with women, he expected her to keep the fact that she was gay a secret and to keep any relationship she had with a woman secret from the children. The father alleged that since the parties had entered into the stipulation of settlement the mother had, among other things, come out publicly as a lesbian, disparaged the basic tenets of Hasidic Judaism in front of the children, allowed the children to wear non-Hasidic clothes, permitted them to violate the Sabbath and kosher dietary laws, and referred to them by names that were not traditionally used in the Hasidic community. The father further alleged that the mother had dressed immodestly, dyed her hair, and permitted a transgender man to reside in her home with the children.
The father said that homosexuality violated the Torah and that he “objected to the children being exposed to anyone who was openly non-religious or to any intimate relationship that was not sanctioned by Jewish law”. When asked if it was possible to compromise with the mother, he testified that “[T]here’s no place for compromising in our religion.”
The father asked the court to award him primary custody of the children and to restrict their mother to weekly supervised visitation. More shockingly, he asked the court to compel her to pretend to be religious whenever she was around the children: to dress as an observant Hasidic Jewish woman, to follow the kosher laws and any other religious rules that might apply, and to hide or deny her sexual orientation if they asked about it.
He made these demands in spite of the fact that he was neglecting his duties under the divorce agreement, as the court noted. He “consistently failed to fully exercise his visitation rights or fulfill his most basic financial obligations to the children after the parties’ separation”. He hadn’t made a single one of his monthly child support payments and had skipped many of the biweekly visitations he was granted. He had remarried after the divorce, and “during the first 18 months of his new marriage… he would not permit the children to come over to his house”.
Nevertheless, and astonishingly, Judge Eric Prus of the Kings County Civil Supreme Court granted the father’s motion:
…to require the mother to direct the children to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy at all times. Further, the court ordered that during any period of visitation or during any appearance at the childrens’ schools “the [mother] must practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy.”
(It may or may not be relevant that a judicial-review website described Judge Prus as “arrogant and obnoxious to litigants” and said he regularly engages in conduct “unbecoming of a judge”. As always, it’s the angriest and most disgruntled people who write reviews like this, so they come with a bias built in. On the other hand, it’s hard to believe a normal and decent person could have thought an order like this was within a million miles of appropriate.)
This was in May 2015. The mother appealed, but the wheels of justice grind exceedingly slow. It was only last month, after over two years of tightly restricted visitation with her children and the enforced-religiosity regimen, that the New York State Supreme Court got around to ruling on the case. Thankfully, they made the right call, returning primary custody to the mother and overturning Judge Prus’ decision as a blatant violation of the First Amendment:
Thus, a religious upbringing clause should not, and cannot, be enforced to the extent that it violates a parent’s legitimate due process right to express oneself and live freely… [T]he weight of the evidence does not support the conclusion that it is in the children’s best interests to have their mother categorically conceal the true nature of her feelings and beliefs from them at all times and in all respects, or to otherwise force her to adhere to practices and beliefs that she no longer shares.
The state supreme court found that while a divorce agreement gives both parents a say in the religious upbringing of their children, it doesn’t give either one the right to force the other parent to conform to a set of beliefs and practices against their will. This was obviously the correct decision, and you don’t have to be an atheist to realize that.
After all, if an atheist couple with kids divorced because one partner got religious and converted, this same logic could apply. Could a court order the newly religious partner to continue pretending to be atheist? Could they be denied the right to dress in religious garb around their own children? Could they be ordered to keep pro-atheism books at home, to break religious laws in public, or to criticize and denigrate religion whenever their children asked them about it? If that level of judicial infringement on an individual life sounds like a horrible violation of conscience, it doesn’t feel any better in the other direction.
There’s a larger lesson for freethinkers and secularists here. As much as we might depend on the courts to enforce our rights, those courts are staffed by human beings, and they can get it badly wrong just like anyone else. In this case the appeals system worked as it should have, but there’s very little which holds judges back if they decide to abuse their power. And if it’s not backed by a judicial system willing to respect it, the Constitution is just a piece of paper that confers no protection.