Another Sermonic Dissent from Justice Parker

The Alabama Supreme Court has quashed a writ of certiorari in a post-divorce child custody. In so doing, it has provided another opportunity for Justice Tom Parker to write another of his lengthy religious dissents.

Ruling in Ex parte Snider, Case No. 1040397 (Ala. November 18, 2005), the Supreme Court accepted the ore tenus judgment of the trial court transferring custody of the child from the mother to the father. The trial court issued lengthy findings of fact that the mother’s new husband had engaged in a concerted pattern of behavior intended to isolate and control, both physically and emotionally, the mother and the child. The trial court had found that this pattern of behavior was extremely detrimental to the child and that the mother had either participated in it or acquiesced to it.

Particulars included the stepfather’s spanking the child for watching a PG-13 movie (“Miss Congeniality), even though the father had expressly given her permission to watch it. The court also noted that the stepfather had hit the child on the head with his hand when she was only five years old because he didn’t like something she said.

One of the arguments the mother made in her brief, but not before the trial court or in her petition, was that the trial court violated her freedom of speech when it ordered that “The religious training of the child while in the home of the Mother for visitation shall be made by example, and not by any religious training which would otherwise be disparaging or critical of in any way the beliefs of the Father, and/or the way in which his household is conducted.” This came after testimony that both the mother and the stepfather had told the 6 year old child that her father and her maternal grandfather were going to hell.

The mother argued in her brief, and Justice Parker agreed, that this statement confined her to teaching only by example and prohibited her from saying anything to the child about her religion. The Supreme Court rejected this argument, noting that

under … established rules of contract construction, where there is a choice between a valid construction and an invalid construction the court has a duty to accept the construction that will uphold, rather than destroy, the contract.” Homes of Legend, Inc. v. McCollough, 776 So. 2d 741, 746 (Ala. 2000). See also Clark v. Board of Dental Exam’rs of Georgia, 240 Ga. 289, 294, 240 S.E.2d 250, 254 (1977) (“‘When a judgment is susceptible of two meanings, one of which would render it illegal and the other proper, that construction will, if reasonably possible, be given it that would render it legal.'” (quoting Byrd v. Goodman, 195 Ga. 621, 25 S.E.2d 34 (1943))).”

In his dissent, Justice Parker argued that the trial court had impinged on the mother’s right to worship God according to the dictates of her conscience and on her right to teach her child the worship of God. Justice Parker criticized the majority’s statement that any parent can teach a child the whole counsel of God without disparaging the religious beliefs of the other parent.

Of course, the contention of the majority cannot be true, because holding firmly and consistently to one interpretation of the Bible (or any book, for that matter) logically precludes other, contradictory interpretations. Where the contradiction is between the understanding of one spouse and the practices of another, to teach the understanding of the one is necessarily to disparage the practices of the other.

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