(dissenting). Robert Lange has filed a petition to review the majority decision in this case, asserting that his first amendment, free exercise rights were abridged by the trial court's order conditioning his visitation on his silence regarding religious matters during such visitation.1
The majority now asserts that this casé does not involve a constitutional issue because Robert did not raise the issue of the constitutionality of sec. 767.001(2m), Stats., in his briefs to this court.
The problem with this conclusion is that it either begs the question, or is untrue. One needs to examine the record to see how Robert's first amendment claim arose.
In the trial court, Robert sought custody of his daughters. Robert had no reason to assert a constitutional right in this context. This issue was contested, and the trial court's oral, decision went against Robert. The court then went on to grant visitation to Robert. The court did not mention sec. 767.001(2m), Stats. Robert is complaining of the conditions of the court's grant of visitation, not the constitutionality of sec. 767.001 (2m). Indeed, all that that statute does is to define choice of religion as a "major decision."
Robert has not attacked the facial validity of sec. 767.001(2m), Stats. Such an attack would be frivolous. But he assuredly has raised the issue of the conflict between the trial court's order and the free exercise clause of the first amendment. On the first page of his *396ebrief he writes: "This case presents important issues of religious freedom, and parents' rights." His explanation of his entire argument is: "THE TRIAL COURT UNNECESSARILY ABRIDGED MR. LANGE'S FREEDOM OF RELIGION AND HIS PARENTAL RIGHTS BY ITS BLANKET PROHIBITION 0[F] RELIGIOUS DISCUSSION AND RELIGIOUS ACTIVITY DURING VISITATION." (Capitalization in original). He cites the appropriate sections of the United States and the Wisconsin Constitutions. He cites twenty cases and a law review article which he asserts support his position. He recognizes that sec. 767.001(2)(a), Stats., gives Elizabeth the right to make decisions regarding choice of religion.
Robert's petition for review does not use language identical to that used in his briefs in this court. Robert made the following argument in his brief to this court:
Missouri has a statute which, like Wisconsin's, indicates that ordinarily the custodial parent may determine a child's religious training. A custodial parent, the mother, sought visitation restrictions under this statute. The court said her position, that the statute gave "her the absolute, total and unqualified right to determine all aspects of the children's religious training in the absence of any further showing, is untenable." In re Marriage of Hertford, 586 S.W.2d 769 (Mo. [Ct.] App. 1979).
This court should reach a similar construction with respect to sec. 767.001[,] Stats. Any other construction would render the statute unconstitutional, inasmuch as it is axiomatic that a legislative enactment cannot nullify constitutional rights. [Emphasis added.]
Given the majority's decision, Robert may have erred in his assessment of what is axiomatic as to ques*396ftions of constitutional law. But it takes a strained and narrow view of Robert's briefs to assert that he has waived the only issue that he presented in this court. Whether one views the issue as the constitutionality of sec. 767.001(2) and (2m), Stats., as applied, or as the constitutionality of the trial court's restrictions on Robert's visitation, the result is the same. Robert is complaining that the free exercise clause of the first amendment protects him from such an order absent a finding that his children would be gravely damaged without it. Robert has raised this issue beyond any doubt.
The majority apparently continues to assert that no test is necessary when weighing state action against first amendment, free exercise rights because it asserts that Robert lost his constitutional right to have input into the children's religious values. But, as I explained in my previous dissent, some test is necessary before reaching that conclusion. In Wisconsin, we have considered the closely related question of child custody. In Welker v. Welker, 24 Wis.2d 570, 576, 129 N.W.2d 134, 138 (1964), the court said:
When custody of a child is in issue, the court has a narrow scope of inquiry regarding the religious concepts of the parents: Does the prospective custodian hold views which might reasonably be considered dangerous to the child's health or morals?
I recognize that there are limits to the first amendment's free exercise clause protections. Other courts facing the same issue we now face have recognized this. That is why other courts have adopted the "grave, damaging effect" test. The first amendment does not protect religious practices that have a grave, damaging effect on children. Here, however, there is no evidence that there is such an effect on the parties' children. That is why I *396gconcluded in my first dissent that this matter should be remanded to the trial court to determine whether Robert's practices meet the appropriate test.
The record shows that the Lange children are perfectly aware that their parents have differing religious beliefs. It cannot be surprising to children that their parents sometimes disagree. At some point in time, if they have not already done so, the Lange children will recognize that their parents' exercise of religion is constitutionally protected. I would accord them the right that the first amendment grants to children in other jurisdictions — to learn of religion from both of their parents if a court determines that their parents' religious teachings do not have a grave, damaging effect on them.
Section 767.001(5), Stats., has now replaced the term "visitation," used by the trial court, with the term "physical placement."