“Harmless Islamic Reference[] About Life and Death” or an “‘Absolute’ and ‘Direct’ Threat” to Ex-Wife?

Colorado Court of Appeals decisions were for a long time not available on Westlaw, and even access to them on the court’s own site was limited. They have recently been put online, in batches, and some have come up in my searches; here’s In re Weinraub & Carpenter, decided in 2019 by Colorado Supreme Court Justice Monica Márquez (sitting by designation on the Court of Appeals), joined by Judges Stephanie Dunn and James Casebolt:

In 2007, the parties married. During their marriage, father worked as an imam and administrator at a mosque in Denver. For her part, mother worked as a homemaker managing the household affairs and caring for the parties’ five children.

In April 2016, following an incident of alleged domestic violence, which resulted in a criminal protection order, mother petitioned for dissolution of marriage…. Both parties are devout Muslims ….

The court upheld certain restrictions on the father’s parenting time:

[Colorado law] authorized the district court to restrict father’s parenting time so long as there was an allegation that the children were in imminent physical or emotional danger…. [In her petition for such a restriction, m]other included … [an] email exchange in which father wrote the following to mother:

• “You are, therefore, complicate [sic] in this crime of benefitting from a bullying court system that unfairly works in your favor. In accepting what you know is fraudulent, you follow the footsteps of shaitan and earn the anger of Allah.” {“[S]haitan” is defined as “the Devil, Satan, or an evil spirit.”}
• “When you soon return to Allah and try to act as though you are innocent of this fraud[.] He will not be fooled. Maybe you and the courts will or already have found a devious way of getting me put away forever. Then you can proceed with erasing me from the children’s minds as though this offense never happened. Allah does not forget, however. This is how people earn their final place in the [h]ereafter.”
• “I pray that whatever happens, my children live and die on Islam.”
• “You WILL be questioned as to how you obtained your wealth in the grave. If it is something acquired and used against the [o]rders of Allah then the time in the grave will be very hard and much longer than your time in this world.”
• “I am not able therefore to comply with an illegal order that is unclear and does not permit me the capacity to perform my and the children’s demonstrative prayer nor spend quality time with my children.”

… [M]other’s allegations centered around father’s instability, including threats on her life and the lives of the children and his disdain in complying with the court’s parenting time orders. We conclude, as the district court did, that mother’s allegations, if true, presented an imminent physical or emotional danger to the children and the kind of compelling emergency that was sufficient to require a hearing under [Colorado law] ….

Father contends that [a later] parenting time restriction order violated his First Amendment right to religious freedom. He asserts, as we understand it, that the court’s finding that his email communications … were threats and not statements “about his belief in the [h]ereafter” precludes him from making any such references in the future without the court making a finding of endangerment. We perceive no error.

A parent has the [constitutional] right to exercise freely his or her religion …. “The free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires.”

The district court was not convinced by father’s testimony that his email communications were harmless Islamic references about life and death. The court described father’s email communications as “disturbing” and found that his statements were threatening. The court pointed out that his statements referenced death toward mother and the children, and that one in particular, “when you soon return to Allah,” was an “absolute” and “direct” threat to mother. Based on these findings and credibility determinations, the court did not abuse its discretion in concluding that the children were endangered and that it was appropriate to continue the restriction on father’s parenting time.

Here, the parenting time restriction order, as father suggests, does not preclude him from making any Islamic references in the future. Instead, the order precludes threatening statements involving the death of the children and mother. Thus, the court’s order did not violate father’s First Amendment right to religious freedom….

Kevin Walton, Luke W. Mecklenburg, Lawrence Myers, and Timothy P. Scalo (Snell & Wilmer L.L.P.) and Jordan Saint John (Saint John Law LLC) represented the mother.