Spouse Does Not Have a Constitutional Right to Disparage Christianity After a Divorce.

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Recently, the Supreme Court of Washington State overturned a trial court’s custody order which included a provision stating: “No parent will put down Christianity to or in front of the children.”  The Supreme Court decided this provision violated the other parent’s right to express their belief.

The freedom of religion, granted by the First Amendment, protects our right to practice any religion.  The same amendment gives a person the right to speak freely against any religion.  Navigating these narrow waters between freedom of religion and freedom to speak about any religion can be difficult.

In reversing the lower court’s order, the Supreme Court is trying to narrow the order by ordering neither party to disparage the other parent’s religious beliefs.    In effect, this allows each parent to speak freely about their beliefs but limits this freedom if the speech disparages the other parent.

Freedom of Speech Versus Freedom of Religion

This court’s order came after a bitter custody trial in which the mother was granted sole decision-making authority (legal custody in Nevada), including the power to make decisions about the children’s religious upbringing.

Although the mother, a practicing Christian, was awarded sole decision-making authority over the children, the Supreme Court found the trial court cannot forbid the father from disparaging a religion.  Instead, the Supreme Court decided the language should be amended to direct the parties not to disparage each other’s religious beliefs.

While this is a subtle difference, there is an important distinction between the mother’s individual belief and an entire religion.  The court is saying the father can speak freely about the Christian religion.  But the father cannot condemn the mother or disparage the mother for believing in the Christian religion.   In other words, the father can slam the Christian religion but he cannot slam the mother for believing in Christianity.

Controlling Religious Freedoms Can Be Tricky

In this case, the mother was granted the authority to make legal decisions concerning the children’s religious practices.  This type of authority is called legal custody, and it deals with decisions like medical, religion, and school.

Judges typically give parents joint legal custody, meaning they must make these decisions together.  In this case, the court found the parents could not come to agreements and therefore gave the decision authority to the mother.   This was not based on her being a mother, it was based on the father’s historical stubbornness.

Judges can give a parent sole legal custody or carve out pieces and give the mom sole legal custody for religion and dad sole legal custody for schooling.  In this case, the court granted the mother sole legal custody for all things including religion.   However, this authority does not forbid the father from teaching the children about his beliefs.

Designing court orders which avoids stepping on religious freedoms can be tricky.   Religious freedom is one of our country’s founding principles, yet many of us have a hard time when that freedom allows others to insult or intrude on our beliefs.

Drawing religious lines that cannot be crossed is tricky.  Practically speaking it’s impossible to give freedom to all beliefs without allowing the freedom to disparage all beliefs.  And disagreeing with another parents’ religious beliefs is a belief.   A theologist once explained to me that not believing in a religion is, in fact, a belief or religion.

Freedoms Have a Limit

Freedom of speech has limits.  For example, you cannot scream “Fire” in a crowded movie theater and claim freedom of speech as a defense.   Likewise, freedom of religion has limits.  Each parent has a right to share their beliefs with their child unless it causes physical or emotional harm.

Here, I believe the court did a good job threading this needle.  They allowed the father the right to express his beliefs, but they limited expressions which could put the mother in a bad light with the children.  The father can express his beliefs, but he cannot trash what mom believes or why she believes it.  In any custody case, the court’s priority is to protect the children and make orders in their best interest; I believe the court did that.

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Rock Rocheleau