Zummo v. Zummo

• Citation: 574 A.2d 1130,394 Pa.Super. 30
• Parties: , 58 USLW 2720 Pamela S. ZUMMO, Appellee, v. David M. ZUMMO, Appellant.
• Decision Date: 17 May 1990
• Court: Superior Court of Pennsylvania

Page 1130

574 A.2d 1130

394 Pa.Super. 30, 58 USLW 2720

Pamela S. ZUMMO, Appellee, v. David M. ZUMMO, Appellant.

Superior Court of Pennsylvania.

Argued Jan. 31, 1989.

Filed May 17, 1990.

Edwin E. Thompson, Ambler, for appellant.

David L. Ladov, Norristown, for appellee.

Before ROWLEY, ^* KELLY and JOHNSON, JJ.

KELLY, Judge:

In this case we are asked to determine whether an order prohibiting a father from taking his children to religious services "contrary to the Jewish faith" during periods of lawful custody or visitation violated the father's constitutional rights, or constituted an abuse of discretion. We find that, under the facts of the instant case, the father's constitutional rights were violated, the trial court's discretion was abused, and the restriction challenged cannot be sustained. We vacate the restriction imposed.

We are also called upon to determine whether the father may be directed to present the children at Synagogue for Sunday School during his periods of weekend visitation. We affirm this part of the trial court's order.

I. Historical Backdrop

Custody and visitation cases essentially involve salvaging operations. Judges are asked to preserve, as best as may be, the interests of any children involved, while at the same time disentangling their parent's spousal relationship. Under the best of circumstances it is a task requiring Solomonic judgment.

The difficulties involved are compounded when emotional issues such as the religious upbringing of children are involved. Venerable advocate for religious liberty, Leo Pfeffer, explained in 1935:

Few areas of litigation are more difficult for dispassionate and disinterested judicial determination and more likely to evoke strong and passionate reactions by the protagonists, to cause the general public to take sides, and to incite acrimonious debate among religious groups than the area of litigation involving religious consideration in the upbringing of children.

Pfeffer, Religion in the Upbringing of Children, 35 BULR 333, 333 (1935). ¹ In light of the sensitive ground we tread, we set forth our analysis in detail. Before entering into an examination of the specific issues raised in this appeal concerning the role of the courts in mediating or resolving parental disputes regarding the post-divorce religious upbringing of children, we think it important to discuss generally the broader issues of religious freedom and parental authority which impact on the specific issues raised here.

A. Religious Freedom

America was founded in an era of extreme religious bigotry and persecution. In 1856, Pennsylvania Justice Jeremiah S. Black explained:

All the colonies were founded during the seventeenth century, and that was precisely the time when persecution was committing its most frightful ravages in Europe. The savage cruelty with which the contest of opinion was carried on by all parties, the judicial murders and the wholesale slaughters ..., are the saddest pages in the history of the human race. Bigotry rode rampant and red over all lands.

* * * * * *

Burning, beheading, and hanging, as well as imprisonment, branding, and maiming, were in universal fashion. Men of the most fervent piety, the highest talents, and the most blameless lives, suffered inflictions so cruel and so ignominious, that, even at this distance of time, they cannot be thought of without unspeakable indignation.

It was from these scenes of terror, conflagration, blood, and tears, that the earliest settlers of America fled. Most of them had suffered more or less for their faith, and all of them ought to have known that justice and sound policy were both in favor of free conscience. But this proposition, plain as it seems to us, was then very generally repudiated. The intellect, indeed, comprehends it readily enough, but in all ages the heart of man has learned it slowly and reluctantly.

Black, "Religious Liberty" (an address delivered September 17, 1856), printed in C. Black, Essays and Speeches of Jeremiah S. Black, at 55-56 (1886).

The steps taken by our founding fathers to renounce religious oppression and to protect religious freedom were bold and momentous. Even so, religious freedom did not spring forth at our founding like Minerva in full armor.

At that time, the vast majority of colonists were associated with various Protestant sects, with a small but influential Catholic population, and only about 2,500 Jews dispersed throughout the colonies. ² When religion was considered in the Constitutional Convention and later in the first Congress, the focus was on Christian pluralism, rather than universal religious freedom. Concerning the First Amendment, Justice Joseph Story explained:

The real object of the amendment was not to countenance, much less to advance, Mohametenism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment which should give to an hierarchy the exclusive patronage of the national government....

III Story's Commentaries on the Constitution, 664 (3rd.Ed.1858). Notwithstanding our founders' Christian sectarian focus, the broader implications of the ban on religious tests and the Free Exercise and Establishment Clauses for universal religious freedom were plainly understood. In response to criticism of the ban on religious tests as an unwarranted invitation for Jews, Muslims and Atheists to enter politics, James Iredell (later Justice of the United States Supreme Court) responded in the North Carolina ratification convention by asking rhetorically, how was "it possible to exclude any set of men, without taking away that principle of religious freedom which we ourselves so warmly contend for?" IV Elliot's Debates 194 (2d.Ed.1937). ³

The ideal of religious freedom planted in our national conscience by our founding fathers grew from seed to tree despite the storms of prejudice which rose and fell as waves of ethnically, culturally, and religiously diverse immigrants came to our shores and were integrated into our increasingly pluralistic American society. As with so many basic rights affirmed by our founders, the struggle to extend the promise of the Free Exercise Clause and the protection of the Establishment Clause beyond Christian sects to all Americans (including adherents of non-Christian faiths, agnostics, and atheists) has been, at times, difficult and controversial. ⁴ Nonetheless, Americans today enjoy religious freedom as broad and as deep as mankind has ever known.

In a recent decision on this subject, the United States Supreme Court explained:

This Nation is heir to a history and tradition of religious diversity that dates from the settlement of the North American continent. Sectarian differences among various Christian denominations were central to the origins of our Republic. Since then, adherents of religions too numerous to name have made the United States their home, as have those whose beliefs expressly exclude religion.

Precisely because of the religious diversity that is our national heritage, the Founders added to the Constitution a Bill of Rights, the very first words of which declare: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." Perhaps in the early days of the Republic these words were understood to protect only the diversity within Christianity, but today they are recognized as guaranteeing religious liberty and equality to "the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism." Wallace v. Jaffree, 472 U.S. 38, 52 [105 S.Ct. 2479, 2487, 86 L.Ed.2d 29] (1985). It is settled law that no government official in this Nation may violate these fundamental constitutional rights regarding matters of conscience. Id., at 49 .

County of Allegheny v. ACLU, 492 U.S. 573, ----, 109 S.Ct. 3086, 3099, 106 L.Ed.2d 472, 491-92 (1989) (per Blackmun, J.; joined in this part by Brennan, Marshall, Stevens, and O'Connor, JJ.). The Supreme Court also noted that its prior decisions had established that, "no person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance," and that, "the Establishment Clause at the very least, prohibits government from ... 'making adherence to a religion relevant in any way to a person's standing in the political community.' " Id., 492 U.S. at ----, 109 S.Ct. at 3101, 106 L.Ed.2d at 493-95 (collecting cases).

Our Supreme Court had repeatedly expressed the same sentiments regarding religious freedom:

Pennsylvania, more than any other sovereignty in history, traces its origins directly to the principle that the fundamental right of conscience is inviolate. See The Papers of William Penn, Vol. I (Dunn & Dunn, University of Pennsylvania Press), pp. 51-52, 90-93, 268, 280, 452, 511. In general, thus, our Commonwealth is neutral regarding religion. It neither encourages nor discourages religious belief. It neither favors nor disfavors religious activity. A citizen of this Commonwealth is free, of longstanding right, to practice a religion or not, as he sees fit, and whether he practices a religion is strictly and exclusively a private matter, not a matter for inquiry by the state.

JIRB v. Fink, 516 Pa. 208, 231, 532 A.2d 358, 369 (1987), quoting Commonwealth v. Eubanks, 511 Pa. 201, 206, 512 A.2d 619, 622 (1986).

It has long been a fixed star in our constitutional constellation that no government official, high or petty, have any authority whatsoever to declare orthodoxy in matters of religion. See West Virginia v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628, 1639 (1943). Moreover, as courts may not divine truth or falsity in matters of religious doctrine, custom, or belief, courts may not give weight or consideration to such factors in resolving legal disputes in civil courts. See Employment Division v. Smith, 494...