The Volokh Conspiracy
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From Marriage of Cochener & Metcalfe, decided yesterday by the Washington Court of Appeals (Judge Ian Birk, joined by Judges Stephen Dwyer & Janet Chung):
Metcalfe challenges a provision of the parenting plan that reads in part: "No parent will put down Christianity to or in front of the children, or allow other members of their household to put down either parents' spirituality." Metcalfe argues the trial court's wording of the religious upbringing provision violates the First Amendment.
The provision was not discussed until a posttrial hearing. Cochener's counsel stated, "Ms. Cochener just wants to be sure that Mr. Metcalfe does not have the ability to block her from teaching the children about her religion." The Court inquired as to the parents' religious practices. Cochener identified herself as "a practicing Christian," and Metcalfe stated, "I don't identify with any particular religion." Metcalfe stated it would not be a problem for him to teach the children to respect Cochener's religion, and "I think we should both expose the kids to different things so they can find their own way in life and be respectful to the other's views." Cochener stated, "[M]y only concern is that my children have expressed that they have been told denigrating things about Christianity in their dad's house. … I have no concern about raising my children with a respect for all religions and beliefs and non-beliefs."
The Court responded, "So any negative comments about Christianity made to the children or in front of the children … will be adequate cause to change the position to sole decision-making." The trial court subsequently incorporated Metcalfe's and Cochener's agreements in the written order: "Parents have agreed to raise their children to affirm all religious traditions, appreciate the good in the practice of other faiths, and respect those who have no religious preference. No parent will put down Christianity to or in front of the children, or allow other members of their household to put down either parents' spirituality."
Parents have a fundamental right to make decisions regarding the care, custody, and control of their children. The parental right to determine the child's religious upbringing derives both from the parents' right to the free exercise of religion and to the care and custody of their children. A parent's right to direct the religious upbringing of a child may be subject to limitation "if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens." Article 1, section 11 of the Washington State constitution is more protective of religious freedom than the First Amendment. A Washington court may restrict a parent from teaching children about faith "only upon a substantial showing of potential or actual harm to the children as a result of the children's adverse reaction to parental conflict over the children's religious upbringing, and only to the degree necessary to prevent harm to the children."
Elsewhere, Massachusetts upheld a prohibition that a parent "shall not share his religious beliefs with the children if those beliefs cause the children significant emotional distress or worry about their mother or about themselves." Kendall v. Kendall (Mass. 1997). A Colorado court reversed a prohibition on homophobic religious teachings when the court could not "determine from the findings whether the trial court applied the correct standard in limiting [a parent's] right to determine the child's religious upbringing. In re Interest of E.L.M.C. (Colo. App. 2004). There, though the other parent argued the restriction was a mere nondisparagement clause, the court did not uphold it on that basis "because it is not so described in the trial court's order. Nor is it mutual."
As written, the challenged provision limits religious topics the parents may discuss with the children in potentially undefined and subjective ways, and is not specific to nondisparagement of the respective parents' spirituality. The record does not show the trial court analyzed whether parental decisions on religious discussions will jeopardize the health or safety of the children.
The parties agreed at oral argument that their dispute is adequately resolved as long as the parenting plan provides that neither parent shall disparage the other parent's spirituality. Such a provision would be consistent with orders concerning religious upbringing that have been upheld. We reverse the religious upbringing provision, and remand for the religious decision-making provision to be revised to reflect the parties' agreement that mutual nondisparagement of each parent's spirituality is sufficient.
I'm not sure that general prohibitions on parents' disparaging the other parent's spirituality are permissible, absent agreement by the parties. Likewise, I think Kendall v. Kendall is mistaken; for more on that, see my Parent-Child Speech and Child Custody Speech Restrictions. But I definitely agree that the prohibition on "put[ting] down Christianity" is too broad and vague, even in light of the parties' agreement to a narrower prohibition on "disparag[ing] the other parent's spirituality" (which I read as forbidding disparagement personalized to the other parent, rather than just a condemnation of a religion more broadly). You can see more about that in the amicus brief that my First Amendment Amicus Brief Clinic students Samantha Frazier, Katarina Rusinas, and Philip Raucci and I filed on behalf of the Pennsylvania First Amendment Center and myself (with the invaluable help of local counsel Gary W. Manca of Talmadge/Fitzpatrick).