Marriage of Lange v. Lange

502 N.W.2d 143, 175 Wis. 2d 373, 1993 Wisc. App. LEXIS 315

• Court: Court of Appeals of Wisconsin
• Decided: March 18, 1993
• Docket: No. 91-0133
• Status: Published

Opinions

GARTZKE, P.J.

Robert Lange appeals from the judgment divorcing him from Elizabeth Lange. The judgment awards to her the legal custody and primary physical placement of the parties' three minor children and further provides,

The respondent [Robert] is awarded reasonable visitation supervised by a proper person approved by the Clark County Department of Social Services. . .. At such time as it is shown that [Robert's] visitation can occur without him imposing his fundamentalist religious views on the children, then the Court may remove such restriction. If [Robert] continues to impose his religious views on the children, [Elizabeth] can then petition the Court for farther restrictions.¹

Robert seeks review only of the restriction. He describes the issue before us as, "Did the tried court unnecessarily abridge the respondent's parental rights and freedom of religion by visitation restrictions which absolutely prohibit religious discussion with respondent's children?" We hold that the trial court did not, and we therefore affirm.

A. FACTS

The parties married in 1980. Their children were bom in September 1981, August 1983, and May 1986. The action was filed in June 1988. In September 1988, Elizabeth was awarded temporary legal custody and physical placement of the children. At the time of the trial, the children were nine, seven and four years of age. The divorce judgment was entered in October 1990.

The court stated its findings regarding custody and placement and its reasons for the restriction in a single paragraph. We quote extensively from it:

Based upon the testimony of the parties, the Court finds that joint custody is not appropriate because the parties will not be able to make joint decisions particularly because of the husband's religious fundamentalism which indicates that he is the person to make all of the decisions. . .. At the time of the marriage, the respondent converted from Catholicism to Lutheranism. [Robert has subsequently rejected Lutheranism.] He allowed his children to be brought up in the Lutheran church and they should continue to be brought up in that religion. The children are comfortable with both parties, however, there is a problem with the children orally berating their Mother. Both parties evince love for the children, however, the respondent indicates he desires custody because he is with the Lord. The respondent makes moral determinations based upon his religious beliefs and imposes those on the children. The respondent's religious beliefs concerning the role of females is detrimental to the children and the children are confused by the different religious teachings of the parties. Although the Social Services study indicated that counseling may be appropriate, the Court believes that counseling would not work here because the counselor could only be someone who is agreeable with the respondent and has similar beliefs. The respondent indicates that he intends to follow God's order, not the Court's. The Social Service studies both consider the issue of visitation in light of the respondent's imposition of his religious views on the children. Although the respondent relied on the protection of the Fifth Amendment in answering questions regarding his conduct after the Temporary Order in this case, the Court finds that the respondent has flaunted the order of the Family Court Commissioner.² The Court would normally simply order reasonable visitation, however, that will not work here because the respondent has not followed orders regarding visitation in the past and has violated the Family Court Commissioner's order regarding visitation. Consequently, the Court finds that it is appropriate to award the respondent reasonable visitation supervised by a proper person approved by the Clark County Department of Social Services. The supervised visitation should take place for a reasonable period of time and when it is shown that he can exercise visitation without imposing his fundamentalist religious beliefs upon the children, the Court may remove the supervision requirement. If this does not occur, then the petitioner can petition the Court for further restrictions. (Emphasis added.)

We divide our review between the validity of the restriction under state law and its validity under the free exercise of religion provisions in the United States and Wisconsin Constitutions. Only if we conclude that the restriction is valid under state law do we examine its constitutionality. Butzlaff v. Van Der Geest & Sons, 115 Wis. 2d 535, 538, 340 N.W.2d 742, 744 (Ct. App. 1983).

B. VALIDITY UNDER WISCONSIN LAW

Since Robert does not challenge the award of custody and primary placement to Elizabeth, two statutes control the non-constitutional aspects of the issue before us. Section 767.24(1), Stats., provides in part that when rendering a judgment of divorce, the trial court "shall make such provisions as it deems just and reasonable concerning the legal custody and physical placement of any minor child of the parties." Section 767.001, Stats., provides in relevant part:

(2) "Legal custody" means:

(a) With respect to any person granted legal custody of a child, other than a county agency or a licensed child welfare agency . . ., the right and responsibility to make major decisions concerning the child, except with respect to specified decisions as set forth by the court or the parties in the final judgment or order.

(2m) "Major decisions" includes, but is not limited to, decisions regarding . . . choice of school and religion.

Given the unambiguous terms of sec. 767.001(2m), Stats., unless the judgment or order otherwise provides, the parent to whom the trial court awards sole legal custody necessarily holds the sole right to choose the religion of the children. If the custodial parent wishes, the non-custodial parent is excluded from participating in the choice.

Because sec. 767.001(2m), Stats., confers on Elizabeth as the custodial parent the sole right to choose the religion of the children, the trial court possesses discretion to fashion reasonable restrictions to protect her choice. First, sec. 767.24(1), Stats., empowers the court to make just and reasonable provisions regarding custody and placement. The court may therefore place reasonable restrictions on visitation. Second, the custodial parent's exclusive right to choose the religion is meaningless without protection from subversion. Since Robert, as the non-custodial parent, has no right to participate in the choice, he cannot complain if his visits with the children are reasonably restricted to protect Elizabeth's choice.

Because the trial court exercised its discretion on the basis of the facts before it, the question is whether the restriction is reasonable. The answer turns largely on the meaning of the prohibition against Robert's "imposing" his religious views on the children.

Neither party offers a working definition of the verb "impose." Whatever its dictionary meaning, "impose" as used by the trial court means that Robert must not cause the children to reject the religion Elizabeth chooses for them. It is that actual circumstance that impelled the court to create the restriction in the first place.

Elizabeth's choice for herself and the children is the Lutheran church. Robert believes that persons of that faith will go to hell. He has told Elizabeth exactly that in the presence of the children, and he caused them to believe it, since they in turn have told their mother and family friends that if she keeps going to the Lutheran church she is going to hell. One of their meal-time prayers is that their mother becomes a Christian. The only reasonable inference from the undisputed facts is that the children have rejected Elizabeth's chosen Lutheranism and accepted Robert's views. Thus, Robert has succeeded in substituting his religious choice for Elizabeth's.

As suggested by Robert's statement of the issue, the reasonableness of the restriction is primarily a question of its necessity. While the restriction is unusual, the record supports the trial court's implicit finding that it is necessary in order to protect Elizabeth's choice of religion for the children. While the divorce was pending, the family court commissioner entered the May 23, 1990 temporary order prohibiting Robert from "imposing his religious beliefs" on the children.³ After the order was entered, the children told Elizabeth that Robert took them to his church and told them he could not do "what the judge commands him to do." Robert stated at the trial that after the temporary order was entered he continued to "teach" his children, that what he teaches is contrary to the Lutheran faith, and that he will not follow a court order contrary to his beliefs.

The restriction is limited in scope and duration. Notwithstanding Robert's characterization of it, the restriction does not "absolutely prohibit religious discussion" with the children. It prohibits him from "imposing" his religious views on the children, in that he cannot, as we have said, cause his children to reject their mother's choice of religion. He may discuss religion with the children so long as he does not cross into causing them to reject their mother's religion. He possesses the power to terminate the restriction. By its express terms, the restriction lasts until Robert shows that his visits can occur without him imposing his religious views.

We conclude that the restriction on Robert's visitation is valid under the law of this state. Since Robert does not assert that the Wisconsin law, expressed in secs. 767.001 and 767.24(1), Stats., is unconstitutional, we next examine his claim that the court-imposed restriction is unconstitutional.

C. VALIDITY UNDER UNITED STATES AND WISCONSIN CONSTITUTIONS

The First Amendment to the United States Constitution provides in part, "Congress shall make no law ... prohibiting the free exercise [of religion]." The first amendment binds the states. Duncan v. Louisiana, 391 U.S. 145, 148 (1968). Article I, section 18 of the Wisconsin Constitution, provides in part, "The right of every person to worship Almighty God according to the dictates of conscience shall never be infringed." Because Robert does not argue that this provision should be applied differently from the free exercise clause in the first amendment, we discuss the validity of the court-imposed restriction in light of the United States Constitution. See State ex rel. Holt v. Thompson, 66 Wis. 2d 659, 676, 225 N.W.2d 678, 687-88 (1975) (federal and state constitutional provisions regarding religion operate to serve the same purpose).

While we emphatically affirm Robert's right under the United States and Wisconsin Constitutions to hold and profess his religious beliefs, he cannot engage in conduct causing his children to reject the religion Elizabeth has chosen for their children. We reiterate: she has the sole right under Wisconsin law to make that choice as long as she has the sole legal custody of the children, Robert does not challenge the constitutional validity of that law, and Wisconsin law prohibits Robert from depriving her of that choice by causing the children to reject her religion. The free exercise provision in the United States Constitution does not exempt him from that prohibition.

Free exercise of religion does not necessarily mean the right freely to act in conformity with a religion. "The free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires." Employment Div., Dep't of Human Resources v. Smith, 494 U.S. 872, 877 (1990). The United States Supreme Court has "never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate." Id. at 878-79. Nor has the United States Supreme Court ever held "that when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation." Id. at 882.

The visitation restriction conforms to the protections of the free exercise clause. As we have said, the restriction prohibits Robert from discussing religion with his children only to the extent that it causes the children to reject their mother's choice of religion. Correspondingly, the free exercise of religion includes the right to profess one's faith, but it does not include the right to engage in religious conduct, such as proselytizing, that runs afoul of an otherwise valid law. Employment Div., 494 U.S. at 877-79.⁴ A restriction on such conduct is permissible so long as prohibiting the exercise of religion is not the object of a valid law but is merely the incidental effect of such a law. Id. at 878.

Limiting Robert's religious conduct is not the object of the visitation restriction. It is the incidental effect of securing Elizabeth's right under a valid law, the custody statute, to choose the children's religion. To this point, Robert's discussions and teaching activities have been inextricable parts of a course of conduct which has interfered with Elizabeth's choice of religion for the children. Elizabeth's testimony is uncontradicted. After the September 1988 order giving Elizabeth temporary legal custody, according to her, Robert forbade the children from using certain toys, prohibited them from wearing certain clothing, and interfered with their participation in a Santa Claus-type school skit. After the May 23, 1990, temporary order was issued, every Sunday Robert took the children to his own church and he has taken them to a shopping mall where he distributes religious literature. As Elizabeth put it, the children are "getting this stuff .. . shoved down their throats."

The dissent misperceives our opinion. According to the dissent, we conclude that the free exercise clause cannot negate a validly enacted state law. That is not our opinion. Our opinion is based on the assumption that secs. 767.001 and 767.24, Stats., are not only validly enacted but are constitutionally valid, because Robert does not challenge either statute.

The dissent concludes that the state can protect Elizabeth's exclusive right to choose the religion of the children only if they have been emotionally harmed by Robert imposing his views on them. The health of the children is an outrageous price for that protection. No parent in Elizabeth's position should be compelled to pay it. No parent in Robert's position should be allowed to extort it. It is grossly unfair because the children ultimately bear it. No United States Supreme Court decision has authorized it. To the extent that other jurisdictions have implicitly set that price, we reject their decisions. This state need not require harm to the children before protecting Elizabeth's rightful choice.

Finally, we cannot leave unchallenged the dissenting judge's statement "that what is really at work here is the majority's belief that Robert's religious views are incorrect." The statement is false. We have no such belief. Robert's religious views are irrelevant to our analysis. A more reflective reader would understand that we have protected the right of the custodial parent to choose the religion of the children, no matter what the religious views of either parent may be. If legal custody is assigned to Robert, our opinion will protect his right to choose the religion of the children, no matter what the religious views of Elizabeth. That was the intention of the Wisconsin Legislature when it gave the parent having legal custody the right to make décisions regarding the religion of the children. Section 767.001(2) and (2m), Stats. Our duty is to implement that intent, regardless of the religious views of the parties to this particular divorce.

We conclude that the visitation restriction does not violate Robert's rights to the free exercise of his religion under the United States and Wisconsin Constitutions.

By the Court. — Judgment affirmed.

1 The 1987 amendments to the custody provisions in ch. 767, Stats., replaced the concept of " 'sole physical custody' . . . and parental 'visitation rights' with a requirement that the court, in child custody actions, allocate periods of physical placement between the parents if it is in the best interest of the child." Comments, 1987 Wis. Act 355. However, the trial court used the term "visitation" and we follow its usage to avoid confusion.

2 After granting Elizabeth temporary legal custody and primary placement of the children in September 1988, on May 23, 1990, the family court commissioner ordered,

Consequently, the respondent is enjoined and restrained from imposing his religious beliefs on the parties' minor children, including but not limited to taking the children to his religious services and activities, educating the children in religious doctrine that is contrary to the Lutheran doctrine which the children have been taught, and telling the minor children that the petitioner's religious beliefs and teachings are wrong. This order does not in any way restrain or enjoin the respondent from practicing his own religious beliefs, however, this order does restrain and enjoin the respondent from imposing his beliefs on the minor children. (Emphasis added.)

3 See note 2.

4 Robert does not ask us to test the restriction against his right of free speech under the first amendment. Cf. Murdock v. Pennsylvania, 319 U.S. 105, 139 (1943) (Frankfurter, J., dissenting) (no one disputes "that the Constitution denies [the government] the right to control the expression of men's minds and the right of men to win others to their views.").