specially concurring.
I write separately to highlight several of my concerns. It is clear that the state has a strong interest in protecting the physical and psychological health and welfare of the child, Mark Tucker. The state has the right, indeed the responsibility, to return physical custody of Mark to his parents only upon fulfillment of conditions crafted to ensure that further abuses will not occur. These conditions, however, may not overly impinge upon parents’ right freely to participate in and exercise the religion of their choice. It is our responsibility to balance these interests carefully, which unfortunately have come into conflict, based upon the circumstances presented by this case. The words of Oliver Ellsworth, a member of the Constitutional Convention and later Chief Justice of the United States, are apt:
“But while I assert the rights of religious liberty, I would not deny that the civil power has a right, in some cases to interfere in matters of religion. It has a right to prohibit and punish gross immoralities and impieties; because the open practice of these is of evil example and detriment.” Quoted in Braunfeld v. Brown, 366 US 599, 600, 81 S Ct 1144, 6 L Ed 231 (1960).
At this juncture, I agree with the majority that, although condition 12 is crafted to protect Mark, it overly impinges upon parents’ constitutional rights to exercise their religion and that less restrictive means are available. I believe that, on remand, the court must draft a substitute condition which will prevent Sherman from in any way determining or implementing the disciplining of the child. It may well be advisable to require parents to move out of the church compound and into separate autonomous housing. It is also crucial that, pursuant to the court’s dispositional order, CSD carefully monitor compliance with the court’s order after the return of the child and that CSD’s monthly reports to the court be regular and detailed. If the continuing investigation reveals any non-compliance with the order or other endangerment to the child’s welfare, those changed circumstances might well result in restrictions like those in condition 12 being within the bounds of the Oregon and United States Constitutions.