Petition for Writ of Certiorari — Sagar v. Sagar

Supreme Court, U.S.

(1) FILED

03-43- JUL 1 2003

No.

—QRRCE-BE tHE eee

IN THE

Supreme Court of the Gnited States

MAHENDRA KUMAR SAGAR,

Petitioner,

v.

SEJAL SAGAR,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME JUDICIAL COURT

OF THE COMMONWEALTH OF MASSACHUSETTS

PETITION FOR WRIT OF CERTIORARI

CHESTER DARLING

Counsel of Record

306 Dartmouth Street

Boston, Massachusetts 02116

(617) 536-2050

Dated: July 1, 2003

A) ATL LET EEN, SLERTT ERT

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS

QUESTIONS PRESENTED FOR REVIEW

I. Whether, in a case where parents are devout

Hindus, and where the best interest of their daughter

was not at issue and the child had been strictly raised

in the Hindu faith, the Massachusetts Courts violated

the petitioner’s Free Exercise rights and the Liberty

Interests protected by the First and Fourteenth

Amendments of the United States Constitution by re-

quiring the petitioner to give a compelling reason why

he should be allowed to continue his daughte~’s indoc-

trination into the customs and practices of the their

faith, over the mother’s philosophical and personal ob-

jections.

ii

PARTIES TO THE PROCEEDING

The Petitioner, Mahendra Kumar Sagar is the for-

mer husband of the Respondent, Sejal Sagar, who are

individuals who reside in the Commonwealth of

Massachusetts.

iii

TABLE OF CONTENTS

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QUESTiONS PRESENTED FOR REVIEW ...............008 i

PARTIES TO THE PROCEEDING. ...............0ccecceccseeeee li

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STERN bhi bn ricesunnneiernvinersocensdsoversssvineaxnusacseseses 1

CONSTITUTIONAL AND STATUTORY PROVI-

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REASONS FOR GRANTING THE WRIT .............c0ee000 3

I. THE COURTS IN MASSACHU-

SETTS UNCONSTITUTIONALLY

INTERFERED WITH PETI-

TIONER’S FREE EXERCISE

RIGHTS UNDER THE FIRST AND

FOURTEENTH AMENDMENT. ............. 6

A. The courts of Massachu-

setts committed constitu-

tional error in halting the

performance of a ritual of

the Hindu religion that pre-

scribed that Chudakarana

(to be performed before age

three) could be postponed

and left to the child to de-

cide as part of her own des-

tiny, or alternatively be per-

formed if the mother

NUR e. essersusesvsnceesncinsscecsases 6

iv

i. Philosophical or per-

sonal preferences of

one parent should

not stand in the way

of the continuance of

the religious up-

bringing of a child by

another parent. ............6.. 7

II. THE COURTS IN MASSACHU-

SETTS IMPERMISSIBLY INTER-

FERRED WITH THE PETI-

TIONER’S FREE EXERCISE

RIGHTS IN VIOLATION OF THEIR

OWN PRECEDENT. ......csssssesssessseeneesees 9

COMRCREIININE sconces ins osiiiccinimntnninnsrnienelh venee |

APPENDIX ......ssscsssossssovsessesssnsssconvecsenasseenssncensvsenten la

TABLE OF AUTHORITIES CITED

CASES:

Blixt v. Blixt, 437 Mass. 649 (2002) ..........:.eeeeeeee 9-10

Felton v. Felton, 383 Mass. 232 (1981) ...........ceeeeeeees 5

Kendall v. Kendall, 426 Mass. 238 (1997) ........... 5, 10

Parnham v. J.R., 442 U.S. SBS (IDTS) ....ccsccrvesscesees 10

Shelley v. Kraemer, 334 U.S. 1 (1948) ........seseeeeeeeeees 9

Troxel v. Granville, 530 U.S. 57 (2000) ..... 7,9, 10, 11

Wisconsin v. Yoder, 406 U.S. 205 (1972)

STATUTES AND RULES:

United States Constitution

Pee FO Suicciidivctecesensiesasnss ae ee ee

Fourteenth Amendment ................ccsceeeees i, 1,6

United States Code

28 UDG. B LBB tieiiciitinnmnmnmuend 1

Petitioner, Mahendra Kumar Sagar respectfully

prays that a Writ of Certiorari issue to review the order

entered by the Supreme Judicial Court of the

Commonwealth of Massachusetts on April 2, 2003,

(App. A p. la), and the decision of the Court of

Appeals of the Commonwealth of Massachusetts,

dated January 14, 2003 (App. B p. 2a).

OPINIONS BELOW

The opinion of the Court of Appeals for the

Commonwealth of Massachusetts, dated January 14,

2003, that affirmed a judgment of divorce of the par-

ties, (App. B 13a), is reported at 57 Mass. App. Ct. 71,

781 N.E. 2d 54. The declination of the Supreme Judi-

cial Court of the Commonwealth of Massachusetts for

further appellate review dated April 2, 2003, is repro-

duced at App. A la.

—

JURISDICTION

The judgment of the Court of Appeals was entered

January 14, 2003, and the Supreme Judicial Court of

the Commonwealth of Massachusetts declined to re-

consider its declination of further appellate review.

This Court has jurisdiction pursuant to 28 U.S.C.

§ 1257(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the right of freedom to practice

religion as guaranteed by the First Amendment of the

United States Constitution of the United States as ap-

plied to the States through the Fourteenth Amend-

ment. “Congress shall make no law respecting the es-

2

tablishment of religion, or prohibiting the free exercise

thereof, or abridging the freedom of speech. U.S.

CONST. amend I.

STATEMENT OF THE CASE

This matter involves the performance by the peti-

tioner of the Hindu ritual of Chudakarana upon his 2-

year old daughter.

This matter was commenced by a Complaint for

Divorce filed in the Middlesex Probate Court on De-

cember 3, 1999. A trial occurred over a five-day

period on March 28, 2001, March 29, 2001, April 9,

2001, April 10, 2001 and April 20, 2001.

Prior to trial the husband filed a Motion to be al-

lowed to perform the Hindu ceremony of Chudakarana

upon his then two-year old daughter. Decision upon

this Motion was reserved for trial.

On May 9, 2001 the Probate Court issued Judg-

ment of Divorce and Order. In the Judgment, the

Court ordered in paragraph 1 G. that:

The religious ceremony known as the

Chudakarana shall not be performed

upon the minor child, until the child is of

sufficient age to make that determination

herself, absent a written agreement be-

tween the parties.

The Petitioner appealed from that Order, to the

Massachusetts Appeals Court which issued a decision

on January 14, 2003 affirming the Probate Court

Judgment. The petitioner sought Further Appellate

Review from the Massachusetts Supreme Judicial

Court which denied on April 2, 2003.

3

The parties were married in a Hindu religious cere-

mony in Barouda, India on July 17, 1990. The hus-

band had been raised as a devout Hindu and during

his upbringing his family participated in numerous

religious ceremonies.

Prior to the wedding the parties participated in the

customary Hindu rituals. They had an intention party

where the parties announce their intent to become en-

gaged. After that the parties had a traditional Hindu

engagement party.

The parties had a traditional Hindu wedding in the

place of the husband’s ancestry. The wedding cere-

mony took 2% hours and involved many Hindu ritu-

als.

In 1992 the parties moved to Massachusetts and on

July 17, 1996 the parties became lawful resident

aliens.

During their marriage, they attended a Hindu tem-

ple on a weekly basis and participated in numerous

religious ceremonies and festivals at the Temple.

The parties’ daughter was born on June 17, 1998

and when their daughter was 6 months old, the par-

ties separated with the husband leaving the home.

REASONS FOR GRANTING THE WRIT

If the decision below is permitted to stand as a

precedent, the Massachusetts courts could enforce

one parent’s philosophical and personal wishes that

Last Rights, Baptisms, First Communions, Bar Mitz-

vahs and Circumcisions not be performed on a child

raised in a particular religion, against the other par-

ent’s religious beliefs.

4

This petition is not submitted to correct a lower

court mistake or error. The courts below have stepped

on a Constitutional third rail. The courts below not

only changed the timing of the ritual of Chudakarana’

it modified a ritual that was prescribed 3,500 years

ago by removing from the parents the ability to have

the ritual performed and bestowing upon the child the

authority to elect to have the ritual performed at all.

To permit state courts to become ecclesiastical arbi-

trators that have the ability to modify religious rituals

will create an ecclesiastical disaster that is in violation

of the core concept of the Establishment Clause.

At the outset it should be noted that the Chuda-

karana ritual was but one of a progression of rituals

1 The Chudakarana, which means the tonsure, is one of the

basic customs that Hindus must follow from conception until after

death. It is usually performed either before the child’s first birth-

day or between the 27¢ and 3"4 year of life. Chudakarana is impor-

tant because the hair is considered to be very sacred and giving

the hair to God will assure the longevity of the child and protect it

from illness. If the Chudakarana is not performed there is a fear

that the child will become sick and many parishioners believe this

to be true. Moreover Hindu custom believes that both parties must

have had Chudakarana performed for a marriage to be blessed.

The procedure starts by praying to one of the deities and a

reading to prémote peace. Hair is taken from five parts of the

child’s head. Mantras are then recited and some of the hair is of-

fered by ritual to the Brahmans. A barber then shaves the head,

with an electric razor ritual mark is placed on the head and bene-

dictions given to the child.

If a Hindu should for some reason fail to perform the manda-

tory house rituals, which includes Chudakarana, the father can

perform an atonement, but still has to perform the ritual at a later

date. The atonement for the failure to perform Chudakarana falls

within the general category of Prajaptya atonements which require

the sinner to fast for 12 days by subsisting upon five products of

the cow, cow dung, cow urine, milk, curd and ghee or clarified

butter.

5

performed by the parents and Hindu priests designed

to accept the child into the Hindu religion. The Chu-

dakarana ritual was deemed not to be harmful to the

child in any way (App. B p. 10a). See Kendall v. Kend-

all, 426 Mass. 238 (1997); Felton v. Felton, 383 Mass.

232, 233 (1981).

The First Amendment’s prohibition against state in-

terference with the free exercise of religion rings hol-

low when the state can arbitrarily halt and alter a reli-

gious ceremony unless the petitioner offers a

compelling reason to the state for its continuance.

This requirement imposed by the courts of Massa-

chusetts places the burden on the petitioner of dis-

proving the negative; namely that his not continuing

with his daughter’s religious indoctrination, would not

affect her religious upbringing in the Hindu religion.

The courts below committed constitutional error

when they placed the burden on the petitioner, who

wanted to do nothing more than continue his daugh-

ter’s religious education and indoctrination into the

practices and customs of her faith, especially where

the record below showed that the parents professed to

be devout Hindus, and where, as the court below

noted “both parties [during their marriage] engaged in

Hindu ceremonies prescribed to mark various transi-

tions in an infant’s life, including a religious baby

shower, a homecoming ceremony, a naming ceremony,

a first visit to the temple, a ceremony for the child’s

first solid food,” and where “[t]he parties attended

temple weekly and even had a temple in their home at

which they worshiped on a daily basis[]” Appendix B

pp. 4a-5a.

It is respectfully submitted that this Honorable

Court must intervene to prevent state courts from act-

ing as ecclesiastical bodies, and to protect the Liberty

6

Interest of parents to raise their children in their relig-

ions free from governmental interference.

I. THE COURTS IN MASSACHUSETTS UNCON-

STITUTIONALLY INTERFERED WITH PETI-

TIONER’S FREE EXERCISE RIGHTS UNDER

THE FIRST AND FOURTEENTH AMEND-

MENT.

A. The courts of Massachusetts commit-

ted constitutional error in halting the

performance of a ritual of the Hindu

religion that prescribed that Chuda-

karana (to be performed before age

three) could be postponed and left to

the child to decide as part of her own

destiny, or alternatively be performed

if the mother acquiesced.

The essential facts in this case are not in dispute

and were adequately recounted by the court below

(Grasso, J.). See: Decision, Appendix B at 4a-5a.

Summarized, they are as follows: After a contentious

divorce proceeding the father (petitioner) who had joint

custody of his daughter, a minor child under the age

of three, wanted to have his daughter undergo the

Hindu ritual of Chudakarana. The ceremony was not

harmful physically or psychologically to the child. Ap-

pendix A p. 10a. The father stated and presented evi-

dence in the form of expert testimony that his religion

was very clear on the matter: Chudakarana had to be

performed before the age of three and that the ritual

may not be delayed. See Appendix B p. Sa.

However, if the ceremony is not performed as pro-

scribed, an elder, the father, may atone, allowing the

ceremony to be performed at a later date. The peti-

tioner (the father) in this case did not want to proceed

7

along that line since atonement was not necessary if

the ceremony was performed.

The court below summarized the mother’s objection

to the ritual as follows: “The wife’s position was that

Chudakarana is not integral to the Hindu faith. Nei-

ther she nor her extended family believe in the efficacy

or necessity of the ceremony.” Appendix A at p. 6a.

The court below incorrectly saw the issue as impli-

cating both the husband and the wife’s fundamental

rights to raise and rear a child according to their reli-

gious beliefs, citing Troxel v. Granville,-530 U.S. 57,

65-66 (2000) and other cases.

i. Philosophical or personal pref-

erences of one parent should

not stand in the way of the con-

tinuance of the religious up-

bringing of a child by another

parent.

It is uncontested in this case that the parents were

both devout Hindus. Appendix A p. 4a. Neither is it

contested thet the daughter of these parents was

raised from birth in the Hindu religion. Id. p. 4a, or

that both parents wanted their daughter raised in

their faith. Id. p. 4a, or that the ceremony in question,

Chudakarana, would not be harmful to the child.

Supra.?

2 As this Court noted, “[t]o be sure, the power of a parent, even

when linked to a free exercise claim, may be subject to limitation

under Prince [] if it appears that parental decisions will jeopardize

the health or safety of the child, or have a potential for significant

social burdens.” Wisconsin v. Yoder, 406 U.S. 233-234. Such is

not the case here. The court below acknowledges that there was no

risk of harm or injury to the child if Chudakarana was performed.

As justification for its ruling, the court below stated that the hus-

band failed to give a compelling state reason why the wife’s objec-

8

The mother, however, believed that the ceremony of

Chudakarana could wait. The courts below reasoned,

thusly: “For the court to issue an order upholding the

husband’s fundamental right to direct that the cere-

mony of Chudakarana be performed upon the child

would repudiate permanently the wife’s corresponding

right to direct that the ceremony not be performed.

Conversely, to order that the ceremony of Chuda-

karana not be performed, as the wife would have it,

would repudiate the husband’s fundamental rights.”

Appendix B p. 12a. The father said his faith required

that the ceremony be performed by the age of three.

The father (petitioner) offered expert testimony that

Chudakarana must be performed and that it should

be performed before the age of three. Supra.

The mother’s beliefs were sincerely held, but phi-

losophical and personal. Such beliefs when weighed

against orthodox religious practice rooted in millennia

of Hindu tradition cannot rise above the father’s desire

to continue his daughter’s religious education and in-

doctrination into its customs and practices. Wisconsin

v. Yoder, 406 U.S. 205, 215-216 (1972). The latter in-

terest has been protected, “sometimes even at the ex-

pense of other interests of admittedly high social im-

portance.” Id. at 214. Accordingly, “courts must move

with great circumspection in performing the sensitive

and delicate task of weighing a State’s legitimate social

concern when faced with religious claims for exemp-

tion to the continuance of their daughter's religions upbringing

should be overridden.

3 The court below summarized her philosophical beliefs thusly:

“The wife’s position was that Chudakarana is not integral to the

Hindu faith. Neither she nor her extended family believe in the

efficacy or necessity of the ceremony. She did not participate in

the ceremony, nor did her brother or cousins. Prior to marriage,

the husband never inquired whether she had participated in Chu-

dakarana; neither did she inform him that she had not.” Appen-

dix B p. 6a.

9

tion from generally applicable [] requirements.” Id. at

235.

The courts below committed constitutional error in

deciding that the ceremony could be delayed until the

child was old enough to make up her own mind about

whether she wanted to follow the rituals of her relig-

ion. As this Court has stated, however, “[t]he law’s

concept of the family rests on a presumption that par-

ents possess what a child lacks in maturity, experi-

ence and a capacity for judgment required of making

life’s difficult decisions.” Troxel v. Granville, 530 U.S.

at 68.

For a court to halt and also amend and then order

a delay in a millennial old religious ritual because the

mother didn’t think it necessary or defer to a child be-

cause the child, being under the age of three, could be

given more time to mature and make up her own

mind, constitutes improper state action, Shelley v.

Kraemer, 334 U.S. 1 (1948) and flatly contradicts this

Court’s admonition that “only those interests of the

highest order and those not otherwise served can

overbalance legitimate claims to the free exercise of

religion.” Wisconsin v. Yoder, 406 U.S. at 215.

II. THE COURTS IN MASSACHUSETTS IMPER-

MISSIBLY INTERFERRED WITH THE PETI-

TIONER’S FREE EXERCISE RIGHTS IN

VIOLATION OF THEIR OWN PRECEDENT.

In a case such as this where there are conflicting

beliefs of two custodial divorced parents regarding the

proper upbringing of their daughter in the rituals and

beliefs of their religion, the courts of Massachusetts

will generally not interfere with a religious exercise

unless there is demonstrable physical or psychological

harm to the child. Blixt v. Blixt, 437 Mass. 649, 655-

10

657, 669 (2002). A compelling state interest, such as

physical or psychological harm must be shown. Kend-

all v. Kendall, 426 Mass. 238, 243, 249-250 (1997),

and Blixt v. Blixt, 437 Mass at 656. See also, Wiscon-

sin v. Yoder, 406 U.S. at 230. (Deferring to parental

rights with respect to religious upbringing of children

absent harm to children’s physical or mental health.)

Where the courts below committed constitutional

error in this case was in requiring the petitioner to

justify why the continued indoctrination of his daugh-

ter into the practices and customs of the Hindu relig-

ion should be allowed to continue against his wife’s

desire that this one practice not be allowed at this

time. The wife’s personal or philosophical beliefs, feel-

ings, inclinations or social desires, notwithstanding.

See, Wisconsin v. Yoder, 406 U.S. at 215 cannot and

should not take precedence over continuing, uninter-

rupted, the daughter’s ceremonial indoctrination into

the rituals and customs of the Hindu faith. Requiring

such to be the case placed the petitioner here in the

same dilemma as the courts of the state of Washing-

ton placed Granville: “In effect, the judge placed on

Granville, the fit custodial parent, the burden of dis-

proving that visitation would be in the best interest of

her daughter.” Troxel v. Granville, 530 U.S. at 69.

The decisional framework employed by the courts

below directly contravened the traditional presump-

tion that a fit parent will act in the best interest of his

or her child. Troxel, citing Parnham v. J.R., 442 U.S.

584, 602 (1979).

The court below cited the proper standards, but

applied them in a constitutionally offensive manner by

requiring that a religious exercise be halted, altered,

and postponed until a minor grew into adulthood, or

alternatively, until a mother’s whim changed. When

the Massachusetts Appeals court affirmed the ruling

11

of the Probate judge in the above regard, constitu-

tional error occurred to the detriment of the father.

Absent physical, psychological or significant emotional

harm to the child, the duty of the court below was to

preserve uninterrupted the free exercise rights of the

petitioner. The Fourteenth Amendment’s Due Process

Clause, “also includes a substantive component that

‘provides heightened protection against government

interference with certain fundamental rights and lib-

erty interests.” Troxel v. Granville, 530 U.S. at 65 for

“lit is cardinal with us that the custody, care and nur-

ture of the child reside first in the parents, whose

primary function and freedom include preparation for

obligations the state can neither supply nor hinder.”

Id. at 65-66.

This protection was clearly not given.

CONCLUSION

Petitioner prays that certiorari will issue.

Respectfully submitted,

CHESTER DARLING

Counsel of Record

306 Dartmouth Street

Boston, Massachusetts 02116

(617) 536-2050

Dated: July 1, 2003

APPENDIX TABLE OF CONTENTS

APPENDIX A

Notice of Denial for F.A.R. Application from the

Supreme Judicial Court for the

Commonwealth of Massachusetts, dated

ABET. 2, BOOS .ccssvcrecerscrsssorncsscesseveveere maaan la

APPENDIX B

Decision: Full Opinion (Grasso, J.). Judgment

affirmed. *Notice. The Appeals Court for

the Commonwealth of Massachusetts,

dated January 14, 2O0S .........ccccccscrccscescsees 2a

APPENDIX A

Supreme Judicial Court for

the Commonwealth of Massachusetts

1412 Courthouse, Boston, Massachusetts 02108

(617) 557-1020

Elton Watkins, III, Esquire

306 Dartmouth Street

Boston, MA 02116

RE: Docket No. FAR-13226

SEJAL MAHENDRA SAGAR

vs

MAHENDRA KUMAR SAGAR

Middlesex Probate & Fam No. 98D4411 DVI

A.C. Mo. 2002-P-0089

NOTICE OF DENIAL FOR F.A.R. APPLICATION

Please take note that on 04/02/03, the above-

captioned Application for Further Appellate Review

was denied.

Susan Mellen, Clerk

Dated: April 2, 2003

To: John E. McCabe, Esquire

Elton Watkins, III, Esquire

2a

APPENDIX B

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

CLERK’S OFFICE

1500 NEw COURT HOUSE -

BOSTON, MASSACHUSETTS 02108

(617) 725-8106

January 14, 2003

Elton Watkins, III, Esquire

306 Dartmouth Street

Boston, MA 02116

RE: No. 2002-P-0089

SEJAL MAHENDRA SAGAR

vs

MAHENDRA KUMAR SAGAR

NOTICE OF DOCKET ENTRY

Please take note that on January 14, 2003, the

following entry was made on the docket of the above-

referenced case:

Decision: Full Opinion (Grasso, J.). Judgment

affirmed. *Notice.

Very truly yours,

The Clerk’s Office

Dated: January 14, 2003

To: John E. McCabe, Esquire

Elton Watkins, III, Esquire

3a

02-P-89 Appeals Court

SEJAL M. SAGAR vs. MAHENDRA K. SAGAR.

No. 02-P-89.

Middlesex. October 16, 2003. - January 14, 2003.

Present: Cypher, Smith, & Grasso, JJ.

Divorce and Separation, Child custody. Constitutional

Law, Freedom of religion. Due Process of Law,

Child custody proceeding.

Complaint for divorce filed in the Middlesex

Division of the Probate and Family Court Department

on December 3, 1998.

The case was heard by Spencer M. Kagan, J.

Chester Darling (Elton Watkins, III, with him)

for Mahendra K. Sagar. |

John E. McCabe for Sejal M. Sagar.

GRASSO, J. In the course of contentious

divorce proceedings between two devout Hindus, the

husband moved the court for permission to perform a

Hindu religious ritual, Chudakarana,! upon the

parties’ young daughter. After a hearing, a Probate

Court judge ordered that, “The religious ceremony

known as Chudakarana shall not be performed on the

minor child, until the child is of sufficient age to make

that determination herself, absent a written agreement

1 On this record, Chudakarana can be described as a

ceremony involving tonsure and prayer. While mantras are recited,

a priest removes hair from five parts of the child’s head, offering

some of the hair ritually. The child’s entire head is shaved, and an

auspicious mark is then placed on the child’s head, and

benedictions are offered.

4a

between the parties.” On appeal from a divorce decree

incorporating this order, the father maintains that the

order violates his right to free exercise of religion as

guaranteed by the First Amendment to the United

States Constitution and the Constitution of the

Commonwealth. He also claims the judge erred in

granting the wife physical custody over the

recommendation of a guardian ad litem that no

designation of a primary physical custodian should be

made.

We conclude that, in the circumstances

presented, where neither parent demonstrated a

compelling State interest justifying intervention, the

judge’s order should be affirmed because it intrudes

least upon both parents’ fundamental rights while

remaining compatible with the child's health. We also

conclude that the judge did not abuse his discretion in

granting physical custody to the mother.

Background. We recite the following

background from the judge’s factual findings. Sejal

Sagar (wife) and Mahendra Sagar (husband) were

married in Baroda, India, in 1990 in a traditional

religious ceremony. They had known each other for

less than a month; the marriage had been arranged by

their respective parents. After marriage, the couple

moved to the United States, where their only child, a

daughter, was born on June 17, 1998. They separated

in November, 1998.

During and after marriage, the parties followed

substantially the tenets of the Hindu faith. During the

wife’s pregnancy and after their daughter’s birth, the

parties engaged in Hindu ceremonies prescribed to

mark various transitions in an infant’s life, including a

religious baby shower, a homecoming ceremony, a

naming ceremony, a first visit to the temple, a

ceremony for the child’s first solid food, and an ear

piercing ceremony. The parties attended temple

FIER RII TE II LORIN ATS EN SEL E LORNA OODLE ROE RE LONGI POR EM efeaheg ana tga ne aN

Pee INRA ELLE TL ERR VARNARON AS I TNO SRE HRC TAT TO APNG AE SICA HOM

5a

weekly and even had a temple in their home at which

they worshiped on a daily basis.

Their relationship was volatile and marred by

numerous instances of the husband’s physical and

mental abuse of the wife. At various times, the

husband threw things at the wife, hit her with a

rolling pin, pulled her- hair, chased her from their

house, and burned her with a cigarette. He tore apart

a book given her by her brother. The husband was

very controlling. He would allow his wife to telephone

her relatives only on birthdays and anniversaries; and

the contents of the kitchen cabinets had to be

arranged as he specified. He threatened to stop paying

tuition for the wife’s education should she fail to get

straight A’s. The husband made questionable

transfers of marital assets and refused to comply with

a court order to hold certain funds in escrow.

Discussion

1. The disagreement_over Chudakarana. Apart

from disagreement over whether the Hindu sacrament

of Chudakarana should be performed, the parties are

in substantial agreement over the rearing- of their

daughter, including her religious upbringing. At trial,

the husband presented evidence to support his

position that a Hindu may not forgo the ritual of

Chudakarana. The ceremony, which is believed to

contribute to the child’s longevity and ward off illness,

should be performed before the child is three years old

and is a necessary prerequisite to Hindu marriage. If

the ceremony is not performed, an elder (here the

father) may atone, allowing the ceremony to be

performed at a later date.? The wife’s position was that

2 The atonement consists of a twelve-day fast, during

which only food given voluntarily by others may be eaten on three

of the days. Other variations on the fast permit consumption only

of five products of the cow: urine, dung, milk, curd, and ghee

(clarified butter).

6a

Chudakarana is not integral to the Hindu faith.

Neither she nor her extended family believe in the

efficacy or necessity of the ceremony. She did not

participate in the ceremony, nor did her brother or

cousins. Prior to marriage, the husband never

inquired whether she _ had participated in

Chudakarana; neither did she inform him that she

had not.

a. The husband’s free exercise claim and the

requirement of a sincere religious belief. The father

claims that the right to insist upon performance of

Chudakarana upon his child is protected under both

State and Federal Constitutional provisions respecting

free exercise of religion. The judge’s decision appears

to conclude that the husband’s free exercise claim

fails because it is not grounded in a sincerely held

religious belief. An essential prerequisite to a free

exercise claim is a sincerely held religious belief. See

Dalli v. Board of Educ., 358 Mass. 753, 758 (1971) (“If

the beliefs be sincerely held they are entitled to the

same protection as those more widely held by others”);

Attorney Gen. v. Desilets, 418 Mass. 316, 323 (1994)

(“Conduct motivated by sincerely held religious

convictions will be recognized as the exercise of

religion.”) A court may not examine the truth behind a

person’s religious beliefs. See United States v. Ballard,

322 U.S. 78, 86 (1943) (“Men may believe what they

cannot prove. They may not be put to the proof of

their religious doctrines or beliefs.”) However, inquiry

into the sincerity of a professed belief is

constitutionally appropriate under both the First

Amendment, see Wisconsin v. Yoder, 406 U.S. 205,

216 (1972); and art. 2 of the Massachusetts

Constitution. See Dalli v. Board of Educ., 358 Mass. at

758; Attorney Gen. v. Desilets, 418 Mass. at 329-330;

Opinion of the Justices, 423 Mass. 1244, 1246-1247

(1996).

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7a

The judge did not question the husband's

general devotion to Hinduism. At the same time, he

found that “the husband’s reasons for his insistence

on having the Chudakarana are not purely religious|,]

[but] an issue of control.” The record supports this

determination. We credit, as we must, the judge's

finding, based upon his credibility assessment. See

Felton v. Felton, 383 Mass. 232, 239 (1981). However,

the determination that the husband’s motivation is

not “purely religious” is different altogether from

whether his belief is “sincerely held.” We need not,

and should not, predicate a decision implicating a

parent’s free exercise right and his fundamental

liberty interest in child rearing upon the tenuous

ground that the parents’ underlying religious belief is

not “sincerely held” because the motivation is not

“purely religious.”$

b. The competing fundamental rights. Although

the husband conceptualizes the probate judge’s action

as a State-imposed limitation on his own free exercise

of religion, whether Chudakarana is performed upon

the child implicates not only the husband’s but also

the wife’s fundamental rights. These include the right

to direct their daughter’s upbringing and religious

formation.

The due process clause protects certain

_ fundamental rights and liberty interests, including the

right of a parent to direct a child’s education and

upbringing. See Troxel v. Granville, 530 U.S. 57, 65-

3 We also cannot delve into differences between the parties

over whether strict adherence to Hindu religious belief requires

that Chudakarana be performed. Resolution of that matter clearly

would involve assessment of the religion’s doctrine. See Williams v.

Episcopal Diocese of Massachusetts, 436 Mass. 574, 579-580

(2003). The First Amendment protects sincerely held religious

beliefs even when these differ from the established dogma of a

religion or are not accepted as dogma by any religion. See Pielich

v. Massasoit Greyhound, Inc., 423 Mass. 534, 538 (1996).

8a

66 (2000), and cases cited; Opinion of the Justices,

427 Mass. 1201, 1203 (1998) (“parents have a

fundamental interest in their relationships with their

children that is constitutionally protected”); Blixt v.

Blixt, 437 Mass. 649, 652 (2003) (liberty interests of

parents protected by the due process clause of the

Fourteenth Amendment to the Federal Constitution

are also protected by our State Constitution). When

custody is contested, it is the divorcing parents who

seek the impairment of each other’s rights, and the

“(S]tate is thrust into the role of mediator by

necessity.” Carr v. Carr, 44 Mass. App. Ct. 924, 925

(1998) (citation omitted). “In divorce proceedings, each

parent is presumed to have equal custody, G. L. c.

208, § 31, and the court is only called on to make

determinations as to a child’s ‘best interests’ because

the parties normally charged with making such

decisions cannot themselves agree.” Blixt v. Blixt, 437

Mass. at 677. (Sosman, J., dissenting). For the court

to issue an order upholding the husband's

fundamental right to direct that the ceremony of

Chudakarana be performed upon the child would

repudiate permanently the wife’s corresponding right

to direct that the ceremony not be performed.

Conversely, to order that the ceremony not be

performed, as the wife would have it, would repudiate

the husband’s fundamental rights.

A court is justifiably loath to order a restriction

on either parent’s fundamental rights to free exercise

of religion and to determine the child's religious

upbringing and is constitutionally limited in doing so

unless there is a compelling State interest such as

preventing demonstrable physical or psychological

harm to the child. See Blixt v. Blixt, 437 Mass. at 655-

657, 669. Put differently, when parents’ religious

views or practices conflict and cannot mutually

coexist, the State may not intervene to vindicate one

parent’s fundamental rights to the exclusion of the

other parent’s rights unless a compelling State

9a

interest, such as physical or psychological harm, is

shown. See Kendall v. Kendall, 426 Mass. at 249-250;

Blixt v. Blixt, 437 Mass. at 656.

c. Intersection of the fundamental right to

parent and the right to freely exercise one’s religion.

“(Plarents together have freedom of religious

expression and practice which enters into their liberty

to manage the familial relationships... . But the ‘best

interests’ of the child are to be promoted, and when

the parents are at odds, the attainment of that

purpose may involve some limitation on the liberties of

one or the other of the parents.” Felton v. Felton, 383

Mass at 233. See also Wisconsin v. Yoder, 406 U.S. at

230 (deferring to parental rights with respect to

religious upbringing of children absent harm to

children’s physical or mental health); Kendall v.

Kendall, 426 Mass. 238, 243 (1997).

When the religious beliefs or practices of

parents conflict and one parent seeks to have the

court intervene and order that his religious

inclinations be enforced to the exclusion of the other

parent’s, the parent seeking enforcement bears the

burden of proving that the conflicting beliefs or

practices cannot coexist without harm to the child

such that a compelling State interest justifies

restricting the correlative fundamental rights of the

other parent. See Felton v. Felton, 383 Mass. at 240-

241; Kendall v. Kendall, 426 Mass. at 248-250.

Here, the husband failed to demonstrate a

compelling State interest for performing the ceremony

on the child. Evidence was lacking that failure to

perform the ceremony would “cause the child

significant harm by adversely affecting the child’s

health, safety, or welfare.” Blixt v. Blixt, 437 Mass. at

658. “[HJarm to the child from conflicting religious

instructions or practices, which would justify such a

limitation [on a parent’s right to freedom of religious

10a

expression or practice] should not be .. . assumed or

surmised; it must be demonstrated in detail.” Felton v.

Felton, 383 Mass. at 233-234. The judge would have

erred had he concluded that a compelling State

interest justified restricting the wife’s fundamental

rights by ordering that the ceremony be performed.

See and compare id. (order restricting father’s

fundamental right to instruct children in Jehovah’s

Witness religion was not constitutionally permissible

because mother failed to demonstrate the requisite

physical or psychological harm to the child).

The question remains, however, as to the

consequence of the husband’s failure of proof. The

wife did not establish that performing the ceremony

would subject the child to physical or psychological

harm, a compelling State interest that would support

an order restricting the husband’s fundamental rights.

The judge was not required to order that the ceremony

be performed, as the husband wished, merely because

the wife had failed to prove that to do so would be

harmful to the child. See Blixt v. Blixt, “37 Mass. at

656. Resolution of such a quandary that implicates

both parents’ fundamental constitutional rights

should not depend solely upon a fortuity of pleading,

upon which party initially seeks court assistance.

Often, even though the competing parental religious

preferences are irreconcilable, no physical or -

psychological harm will inure to the child from either

parent’s religious inclinations. “Sometimes .

diversity of religious experience [can be] a sound

stimulant for a child.” Kendall v. Kendall, 426 Mass.

at 249.

Here, the evidence did not establish either

proposition -- that the child would suffer physical or

psychological harm by undergoing or by not

undergoing the disputed ceremony. A rule whereby

the opposing parent’s religious inclination must

prevail when the moving parent fails to carry the

lla

requisite burden of proof would create an arbitrary

and unsatisfying basis for decision. Had the other

parent been the moving party, such a burden would

have been upon her. Consequently, the rule cannot

require that, unless the moving party proves physical

or psychological harm, the other parent’s inclination

necessarily prevails.

However, the State must not sit idly by in the

absence of proof by one parent of a compelling interest

that justifies restricting the other parent’s competing

and irreconcilable fundamental rights. The State has a

compelling interest in adjudicating disputes between

parents who seek the impairment of each other’s

fundamental liberty interest in child rearing. See Blixt

v. Blixt, 437 Mass. at 652, 669. This compelling

interest requires an accommodation that “intrudes

least on the religious inclinations of [either] parent

and is . . . compatible with the health of the child.”

Felton v. Felton, 383 Mass at 235. State action such

as this that infringes on a fundamental constitutional

right is to be examined under a strict scrutiny formula

requiring (1) a compelling State interest, and (2) action

narrowly tailored to further that interest. Blixt v. Blixt,

437 Mass. at 655-656.

The judge’s denial of the husband’s motion may

give the appearance of endorsing the result requested

by the wife, that the ceremony not be performed.

However, the judge’s order is not the equivalent of

directing that the ceremony never be performed. Nor is

the order predicated upon a determination that

physical or psychological harm would befall the child

from performing the ceremony. Rather, absent proof

either way, the order is a narrowly tailored

accommodation that “intrudes least on the religious

inclinations of either parent and . . . is compatible

with the health of the child.” Felton v. Felton, 383

Mass. at 235 .

12a

The order neither imposes any limitation upon

nor favors either parent’s ability to communicate

beliefs concerning Chudakarana or to participate in

any other beliefs or practices of their shared Hindu

faith. The order does not coerce the father to believe

as the mother does; nor does it compel him to practice

his religion in a particular way. Contrast Kendall v.

Kendall, 426 Mass. at 249-250 (demonstrable physical

and psychological harm to the children’s Jewish

identity justified restricting the father’s rights to free

exercise of his Fundamentalist Christianity and to

determine the religious upbringing of his children).

The order leaves open to the parties the opportunity to

agree in the future and does not bar future court

intervention on this issue should the child be suffering

from physical or psychological harm. Finally, the order

respects the child’s ability to eventually control her

own religious destiny while encouraging continued

exposure to her parents’ religion. See Wisconsin v.

Yoder, 406 U.S. at 243 (Douglas, J., dissenting)

(“[rjeligion is an individual experience” and children

are also granted freedom of religion). In fact, the law

encourages a child’s “exposure” to her parents’

religious views even when the views are divergent,

provided the exposure is not harmful. Felton v. Felton,

383 Mass. at 234.

In sum, the evidence as to the impact of

performing, or not performing, Chudakerana on the

child was insufficient either way to have justified an

order restricting either parent’s fundamental rights. At

such a juncture, the appropriate recourse was an

accommodation that intruded least upon both

parents’ religious inclinations and, at the same time,

was compatible with the child’s health and well being.

The challenged order represents such an

accommodation.

2. The order for physical custody. The father

also appeals from the judge’s order granting physical

13a

custody to the wife. “The decision of which parent will

promote a child’s best interests ‘s a subject peculiarly

within the discretion of the judge.” Bak v. Bak, 24

Mass. App. Ct. 608, 616 (1987) (internal citation

omitted). While a judge may consider a guardian ad

litem’s recommendations, the judge is required to

draw his own conclusions: “(T]he responsibility of

deciding the case [is] his and not that of the

guardian.” Delmolino v. Nance, 14 Mass. App. Ct. 209,

212 (1982), quoting from Jones v. Jones, 349 Mass.

259, 265 (1965). Here, the judge found that both

parents truly love the child and that the child is

equally comfortable with both parents. The judge also

found that both parents are willing to meet the child’s

needs and work together to comply with the parenting

plan. The judge accepted the guardian ad litem’s

finding that both parents agreed that it was

appropriate for the wife to stay at home due to the

child’s age. The visitation schedule allows the

husbend to spend every weekend and one day a week

with the child. The judge did not abuse his discretion

in awarding joint legal custody to the parents and

designating the wife’s residence as the child’s primary

residence with liberal visitation to the husband.

Judgment affirmed.