This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






In re the Marriage of:

Barbara A. Kinley, n/k/a

Barbara A. Peck, petitioner,





Timothy C. Kinley,



Filed September 18, 2007

Reversed and remanded

Muehlberg, Judge*


Ramsey County District Court

File No. F1-96-163


Timothy W.J. Dunn, 1150 U.S. Bank Center, 101 East Fifth Street, St. Paul, MN  55101-1808 (for respondent)


Thomas B. James, 440 North Broadway Avenue, Cokato, MN  55321 (for appellant)


            Considered and decided by Halbrooks, Presiding Judge; Dietzen, Judge; and Muehlberg, Judge.

U N P U B L I S H E D   O P I N I O N


On appeal in what is largely a parenting dispute, appellant-father argues that the district court’s order prohibiting father from discussing “inappropriate” religious topics with the children violates his right to free exercise of religion and free speech under the First and Fourteenth Amendments to the U.S. Constitution.  He also asserts that the order is vague and overbroad.  We reverse and remand. 


            The parties to this matter were divorced in 1997.  The district court awarded joint legal custody of the parties’ three minor children, and respondent received physical custody, subject to appellant’s right to reasonable visitation.  In 2002, appellant filed a motion seeking sole physical custody or, in the alternative, unsupervised parenting time.  Respondent countered with a motion to obtain sole legal custody.  Respondent also sought an order restraining appellant from discussing, among other things, “inappropriate” religious ideas in the children’s presence or telling them stories or teaching lessons from the Bible.  In support of her motion, respondent submitted a detailed affidavit with accompanying exhibits that set forth examples of the effect appellant’s religious beliefs had on his relationship with respondent and their children.  With regard to the children, respondent noted that, on one occasion, after one of the children appeared uninterested in a Bible story appellant was reading, appellant allegedly became enraged.  The child’s account of the incident was included:

I looked away [from dad as he read] and dad got really mad at me.  He picked me up and carried me to the bedroom.  He was really rough.  Then he shook me by the shoulders and was yelling in my face.  I was crying.  He yelled stuff like ‘look at me!  Why are you being like this?  What did they tell you to do?’  Then he pushed me along while I walked back to the kitchen.  He made me sit and he turned my chair to face him.  When I didn’t look at him he grabbed my face and jerked it toward him several times.  Then when I pretended to listen, he read a story.  It was something about God.  I was really scared . . . .


            One of the exhibits offered by respondent was a statement from Dr. Penny Giesbrecht, who had engaged in therapy sessions with one of the children.  In the statement, Giesbrecht described the frustration the child felt due to appellant’s unwillingness to accept his religious beliefs:  “[The child] said he felt like his dad doesn’t like his church, and that he doesn’t like his pastor.  [The child’s] words were, ‘Dad thinks the preacher is bad because of his theology . . . [Dad thinks my] pastor is nuts and he doesn’t believe what I believe.”   

            In addition to discussing appellant’s religious involvement with the children, respondent detailed her own difficulties with appellant that stemmed from religion.  After initiating dissolution proceedings, she claimed that appellant harassed her by sending letters stating that she had sinned, and he contacted several religious leaders to have them “administer ‘church discipline’ to [her] because [she] was ‘sinning’ by leaving him.”  After the divorce, respondent asserted that religious matters permeated her relationship with appellant:

The issue of religion has become obsession with [appellant].  In his eyes we are still married ‘in God’s eyes.’  He has caused me to move churches twice, he has stood up in church and started yelling that I am bad and other things that I can’t repeat.  He claims that the children were not raised in the ‘right’ religion.


. . .


[Appellant] caused a scene at [my church] by standing up and announcing that ‘these two people are living in sin by associating with my adulterous ex-wife’. . . .  


            Respondent also relied on statements from health professionals who worked with the family.  At the time of the parties’ dissolution, the family’s psychologist, Sandra Thorne, submitted a report to the court that described her inability to work with appellant.  In the report, Thorne claimed that her difficulty with appellant was due, in part, to appellant’s use of Bible passages “in a way that was self-serving, and missing the overall meaning.”  Similarly, respondent cited a custody-investigation report that described appellant as being uninterested in a divorce and “attempt[ing] to undermine the mother in the eyes of the children.  Examples of this include quoting scripture to them and having [one of the children] read bible verses regarding women’s roles and marriage.”    

            After a hearing on the matter, the district court denied appellant’s motions and granted respondent sole legal custody of the children.  In its findings, the court held that appellant had “caused respondent to move churches twice,” “stood up in church and started yelling that [respondent] is bad,” and said that, due to respondent’s religious preference, “the children are not raised in the ‘right’ religion.”  Based on these findings, the court held that religion had “become a pervasive issue with [appellant]” and ordered appellant to refrain “from discussing inappropriate religious ideas with the children and/or forcing them to complete Bible lessons or listen to religious stories whenever the children do not want to do so . . . .”

            In August 2003, appellant moved to restore joint legal custody and unsupervised parenting time.  Appellant also challenged the restriction on his ability to discuss religious ideas with his children, arguing that it did not “respect[] the religious beliefs of both parents” and had a “chilling effect” on his First Amendment rights.  In his affidavit in support of the motion, appellant explained that the order caused him to “fear that [he] might accidentally express a religious belief that . . . [someone] might consider ‘inappropriate.’”  The district court ordered a parenting-time-access investigation and report and deferred consideration of all other issues until completion of the investigation.  The report was received, but not adopted by the district court.  After an evidentiary hearing, the court issued an order that, among other things, denied all motions, including appellant’s request to vacate the restriction on discussion of religious ideas with the children.

            In September 2005, appellant moved to amend various provisions of the previous order.  Appellant requested that the order be amended to “specifically address [the 2003 motion] . . . for modification of the prohibition against discussion of religious ideas.”  The district court denied the motion and specifically ruled that appellant’s motion to “remove any limitations placed at prior hearings on his ability to discuss his religious ideas is denied.”  This appeal followed.           




            Appellant contends that the district court’s order enjoining him from engaging in certain religious activities with his children is unconstitutional because it infringes on his freedom of religion.  Whether appellant’s First Amendment rights have been violated is a question of constitutional interpretation, which this court reviews de novo.  Star Tribune Co. v. Univ. of Minn. Bd. of Regents, 683 N.W.2d 274, 283 (Minn. 2004).     

The First Amendment, through the Fourteenth Amendment, prohibits states from interfering with the free exercise of religion.  U.S. Const. amends. I, XIV; Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900, 903 (1940).  “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 Res. v. Smith, 494 U.S. 872, 877, 110 S. Ct. 1595, 1599 (1990).  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 that violates an otherwise valid law.  Id. at 877-79, 110 S. Ct. at 1599-600.

Appellant argues that the district court’s order must be subject to strict scrutiny because it impedes on his fundamental right to free exercise of religion.  Appellant is correct that freedom of religion is a fundamental right.  Johnson v. Robison, 415 U.S. 361, 375, n.14, 94 S. Ct. 1160, 1169 n.14 (1974) (“Unquestionably, the free exercise of religion is a fundamental constitutional right.”).  But the object of the order is not to restrict appellant’s religious beliefs or practices.  Rather, it is intended to protect respondent’s legal right to determine the children’s upbringing.  By statute, respondent, as the children’s sole legal custodian, holds the exclusive “right to determine the child[ren]’s upbringing, including education, health care, and religious training.”  Minn. Stat. § 518.003, subd. 3(a) (2006); Andros v. Andros, 396 N.W.2d 917, 924 (Minn. App. 1986) (“It is settled law in Minnesota that the custodial parent of minor children has control of the children’s religious upbringing.”).           

On its face, this provision is a law of general application that does not regulate religious beliefs or conduct, but, instead, enforces the custodial parent’s right to determine the religion of the children.  Laws of general applicability that incidentally infringe on religious practices do not violate the Free Exercise Clause.  See Smith, 494 U.S. at 890, 110 S. Ct. at 1606 (holding that members of Native American religion who smoked peyote as part of ritual ceremony are not exempt from a general criminal ban on the consumption of the substance).  Moreover, this court has previously considered the constitutionality of the law under the Free Exercise Clause and found it valid.  Andros, 396 N.W.2d at 924 (holding that a modification of visitation reflecting the custodial parent’s right to decide a minor child’s religious training under Minn. Stat. § 518.003, subd. 3(a), does not affect the non-custodial parent’s right to freedom of religion).  Therefore, the district court has discretion to fashion reasonable restrictions to protect that right. 

            Although the district court has the authority to place restrictions on appellant’s religious discussions with his children, we are troubled by the lack of findings supporting the proscriptions, as well as the ambiguous nature of the language used to impose the restrictions.  Here, evidence in the record tends to indicate that respondent was concerned with appellant’s use of religion as a tool to manipulate her and the children.  Butthe court did not make specific findings indicating that respondent threatened to subvert respondent’s choices regarding the children’s religious upbringing or that respondent’s religious messages threatened the health, safety, or welfare of the children.  Moreover, the language of the order is imprecise and is not limited to discussions that might cause the children to reject respondent’s choice of religion or to appellant’s attempts to impose his religious views on the children.  Without making any findings in support of the restriction, and by failing to place sufficient limits on the scope and duration of these restrictions, we conclude that the order impermissibly burdens appellant’s right to free exercise of religion.     



Appellant also argues that the district court’s injunction prohibiting him from reading Bible stories is an unconstitutional, content-based restriction on his free-speech rights.  Content-based restrictions on speech survive strict-scrutiny analysis only if they are necessary to serve a compelling state interest and are narrowly drawn to achieve that purpose.  Widmar v. Vincent, 454 U.S. 263, 270, 102 S. Ct. 269, 274 (1981). 

We agree that by invoking a prior restraint on appellant’s right to read biblical stories with the children the district court has fashioned a content-based restriction on appellant’s free-speech rights.  In past decisions when a custody determination restricted the fundamental constitutional rights of a parent, we have concluded that the best interests of the child are a compelling state interest justifying intrusion into the realm of fundamental constitutional rights.  See Geske v. Marcolina, 642 N.W.2d 62, 68-70 (Minn. App. 2002) (holding that the best interests of a child serve as a compelling state interest supporting a narrowly-tailored prior restraint of parent’s speech); LaChapelle v. Mitten, 607 N.W.2d 151, 163 (Minn. App. 2000) (upholding infringement on a parent’s right to travel on the basis that the state has a compelling interest in maintaining the best interests of the child), review denied (Minn. May 16, 2000); Sina v. Sina, 402 N.W.2d 573, 576 (Minn. App. 1987) (finding that the best interests of a child take precedence over a parent’s freedom of religion). 

            We believe that a child’s best interests are no less compelling in this situation.  Protecting children from bitter disputes over religious upbringing is essential to their mental and emotional well-being, and that protection has been legislatively created through Minn. Stat. § 518.003, subd. 3(a)Here, the record reflects that appellant did not agree with respondent’s choice of religion.  Moreover, the potential for acrimony was evident from appellant’s pervasive religious focus.  Therefore, the court order survives the first step in the analysis. 

Although the order serves a compelling interest, we conclude that the order is constitutionally infirm because it is not narrowly tailored to fulfill that interest.  The compelling consideration in this case is the children’s interest in avoiding conflict over their religious upbringing.  But an order that concentrates solely on teachings from the Bible does not work toward achieving that purpose.  In order to be constitutionally valid, an order restraining a non-custodial parent’s speech may not favor one religion over another or be based generally on the form or type of religious doctrine espoused.  Rather, the restrictions on expression shall focus on speech that is intended to cause the children to reject respondent’s choice of religious upbringing or allow appellant to impose his religious views on the children.



            Appellant also asserts that the order encroaches on his First Amendment right to free speech because it is vague and overbroad.  We agree.  An order issued in the area of First Amendment rights must be precise and narrowly tailored to achieve the “pin-pointed objective” of the “exact needs of the case.”  Carroll v. President & Comm’rs of Princess Anne, 393 U.S. 175, 183-84, 89 S. Ct. 347, 353 (1968).  An enactment is void for vagueness if persons “of common intelligence must necessarily guess at its meaning and differ as to its application . . . .”  Connally v. Gen. Constr. Co., 269 U.S. 385, 391, 46 S. Ct. 126, 127 (1926).  Without proper specificity, a court order may have a “chilling effect” on protected speech because it does not provide adequate notice of proscribed expression.  See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 88-93, 93 S. Ct. 2628, 2650-52 (1973) (noting that “fair notice” and inhibition of speech are two of the inherent difficulties that result from ambiguous regulation).  An imprecise order can also lead to arbitrary and discriminatory enforcement of its directives.  See Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 588, 118 S. Ct. 2168, 2179 (1998) (noting that the First and Fifth Amendments protect speakers from arbitrary and discriminatory enforcement of vague standards).

            Similarly, “the overbreadth doctrine prohibits [government action] banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.”  Ashcroft v. Free Speech Coal., 535 U.S. 234, 237, 122 S. Ct. 1389, 1395 (2002).  In order to invalidate a court order under this framework, its overbreadth must be substantial when “judged in relation to [its] plainly legitimate sweep.”  Broadrick v. Okla., 413 U.S. 601, 615, 93 S. Ct. 2908, 2918 (1973).

Here, the order is unconstitutionally vague.  The district court prohibited appellant from teaching the children Bible stories and discussing “inappropriate” religious ideas.  The term “inappropriate” lacks sufficient clarity.  It is defined as “[u]nsuitable or improper.”  American Heritage College Dictionary 699 (4th ed. 2007).  But in the context of religious belief and discussion it is a nebulous term susceptible to any number of subjective interpretations.  As discussed above, the district court has the authority to fashion orders that protect the custodial parent’s right to choose the children’s religion.  But without a more clear delineation between permitted and proscribed speech, it is impossible to effectively ascertain the scope of restriction on appellant’s First Amendment rights.  This lack of clarity leads to confusion about appropriate speech and suppresses expression of ideas for fear of violating the order. 

The order also suffers from overbreadth.  The district court did not limit its prohibition to religious discussions that might cause the children to reject respondent’s choice of religion or those that could impose appellant’s religious views on the children.  It is evident that the legitimate purpose of the order is to protect respondent’s rights as the custodial parent under Minn. Stat. § 518.003, subd 3(a).  But by failing to narrowly tailor the order in a manner that also recognizes appellant’s interest in free expression, the order reaches a substantial amount of protected speech or conduct that could be construed as “inappropriate.”

In conclusion, on remand, the district court must make specific findings before placing limitations on appellant’s communication with the children.  The findings must indicate that appellant’s conduct or speech:

(1)       threatens respondent’s right to determine the children’s upbringing;

(2)       poses the risk of harm to the children; or

(3)       forces the children to take part in any religious practice, including listening to religious stories from the Bible or any other source, that:

(A) is intended to influence the religious thinking or beliefs of the children;

(B) is meant to criticize to the children respondent’s parenting on religious grounds, or

(C) is unwanted by the children.  

            Should the court decide to impose such restrictions, it shall refashion the provisions of the order concerning appellant’s religious discussions with the children in order to state more precisely what is proscribed.  The limitations imposed must not favor one religion over another, and the court shall refrain from prohibitions on specific forms of religious teaching or discussion.  Instead, the limitations must be narrowly tailored to prohibit speech or conduct intended to cause the children to reject respondent’s choice of religious upbringing or to allow appellant to impose his religious views on the children.

Reversed and remanded.


* Retired judge of the district court serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.