The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Fortunately, Tuesday's Washington Court of Appeals decision in Black v. Black, reversed that order.
1. The facts (some paragraph breaks added, some deleted):
Charles and Rachelle Black married in 1994 and have three children from the marriage. Charles and Rachelle raised their children in a conservative Christian home and sent the children to religious-based schools…. In December 2011, Rachelle informed Charles that she was a lesbian, and began a romantic relationship with another woman…. In May 2013, Rachelle filed for divorce….
The children started seeing a therapist in early 2014. According to the therapist, the children had some difficulty with the divorce, but they were adjusting. During one counseling session with the therapist, Rachelle told the children she was gay….
Rachelle subsequently provided the oldest child with a book to answer any questions that he might have about her sexuality and their faith. She also showed the two oldest children a documentary about a transgendered child because they had asked questions about the meanings of "LGBT" and "transgender."
While initially supportive of the information Rachelle provided to the children, the therapist asked her to refrain from having conversations about sexuality outside of therapy. Due to the children being sheltered, naïve, and shut down, the GAL [guardian ad litem—the person appointed to represent the interests of the children for purposes of the litigation] and therapist were concerned that Rachelle might not give the children the time they needed to adjust and cope to the divorce and Rachelle's sexual orientation. However, the therapist admitted that the children were getting used to the idea that their mother was gay, that the issue did not consume an inordinate amount of time during their therapy sessions, and that she and the children primarily talked about other concerns the children had related to their parents' divorce….
[UPDATE: According to the briefs, the children were 7, 13, and 15 or 16 at the time of trial.]
2. The trial court order, based on the trial court's stated belief that "it will be very challenging for [the children] to reconcile their religious upbringing with the changes occurring within their family over issues involving marriage and dissolution, as well as homosexuality":
7. The children are to have no contact with [Rachelle's partner] until such time as [the therapist] feels that the children are ready. [The therapist] has the discretion to determine when and/or how contact should occur.
8. Ms. Black is ordered to refrain from having further conversations with the children regarding religion, homosexuality, or other alternative lifestyles concepts and further that she is prohibited from exposing the children to literature or electronic media; taking them to movies or events; providing them with symbolic clothing or jewelry; or otherwise engaging in conduct that could reasonably be interpreted as being related to those topics unless the discussion, conduct or activity is specifically authorized and approved by [the therapist].
The trial court also "awarded Charles sole decision-making authority for religious upbringing."
3. The court of appeals' free speech and free exercise analysis of the specific restrictions on the mother:
Our courts have upheld restrictions on certain types of unprotected speech when they have served the best interests of the child [citing cases that upheld restrictions on "defamatory remarks" and on speech that "results in actual, tangible harm to children"]. But while the welfare of children is the State's paramount concern in dissolutions, restraining speech merely based on content presumptively violates the First Amendment…. [E]ven in the context of family law, content-based speech restrictions are presumptively unconstitutional ….
Here, the trial court made no specific findings of any actual or perceived harm that the children would suffer from the prohibited speech, other than that it would "be very challenging for them to reconcile their religious upbringing" with the changes in their lives concerning the divorce and Rachelle's sexual orientation. The trial court did not restrict Rachelle's speech to prohibit her from making defamatory statements about Charles, or to prevent her from harming the relationship between Charles and the children. The restrictions in this case are blatantly content-based restrictions prohibiting Rachelle from any speech or communication about religion, homosexuality, or "alternative lifestyles concepts" with her children….
The restrictions function to chill a broad range of Rachelle's speech around her children, and prevent her from being able to share and speak about her religion with her children. While the best interests of the children is a trial court's paramount concern …, here there is no indication that Rachelle's prior speech related to her sexual orientation or her religious views caused harm to the children or disparaged Charles, or would cause harm to the children if such speech or conduct occurred in the future. Therefore, we hold that the restrictions are an unconstitutional burden on her freedom of speech and her free exercise of religion….
[Moreover, b]ecause exercise of religion also includes performance or abstention from physical acts in addition to belief and profession, the government must have a compelling government interest to burden a person's right to free exercise. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2767, 2770 (2014). [Burwell was a federal Religious Freedom Restoration Act decision, not a Free Exercise Clause decision; but the court may have cited it because Washington courts interpret the Washington Constitution's religious freedom provision as apply a RFRA-like rule.] While a parent's right to select their children's religious experiences and opportunities is not absolute, the vast majority of cases restricting a parent's right to free exercise include cases of parents risking their children's health and well-being. That is not the case here, and the trial court demonstrated no compelling governmental interest to burden Rachelle's free exercise of religion.
4. The court of appeals' analysis of the award of "sole decision-making authority for the children's religious upbringing" to the father:
Washington courts have created a separate standard where a trial court's order regarding decision-making authority restricts the parents' rights to free exercise of religion. There must be a substantial showing of actual or potential harm to the children from exposure to the parents' conflicting religious beliefs; this harmonizes the children's best interests with the parents' constitutional rights to free religious exercise. The burden on free exercise is only justified by a compelling state interest and using the least restrictive alternative available; the "actual or potential harm" requirement satisfies the "compelling interest" test. Findings of actual or potential harm must be made with reference to specific evidence and the specific needs of the children involved.
The constitutional right to free exercise does not allow sole decision-making, even if the parents are incapable of joint decision-making, "if leaving each parent free to teach the children about religion independently would not cause actual or potential harm to the children." …
The trial court made the following findings regarding Rachelle's and Charles's religious practices:
6. The family prior to December 10, 2011, had by choice attended Church for All Nations, a conservative Christian Church.
7. Ms. Black's parents are elders in the Church for All Nations.
8. Mr. Black still attends the Church for All Nations.
9. Ms. Black no longer attends the Church for All Nations.
Rachelle testified at trial that she still remained a Christian, that the only difference between her religious beliefs and those of Charles was that she no longer viewed homosexuality as a sin, and that the children would attend church with Charles during his residential time. While Charles had requested sole decision-making authority for religious upbringing, Rachelle was open to joint decision-making.
The trial court did not expressly state its reasons for allocating sole decision-making to Charles in its written opinion,
[Charles] is clearly the more stable parent in terms of … maintaining their religious upbringing. These children have been taught from the Bible since age 4. I believe it will be very challenging for them to reconcile their religious upbringing with the changes occurring within their family over issues involving marriage and dissolution, as well as homosexuality.
Because there were no specific findings by the trial court or evidence presented that joint decision-making would cause an actual or potential harm to the children, the trial court abused its discretion by allocating sole decision-making to Charles regarding the children's religion.
5. Sounds generally quite right to me; see my Parent-Child Speech and Child Custody Speech Restrictions (NYU Law Review, 2006), which also discusses some other such incidents (see, e.g., pp. 730-31). For a case in which a parent was ordered not to engage in anti-homosexuality speech, see this post, about In re E.L.M.C. (Colo. Ct. App. 2004).