NORTH CAROLINA LAW REVIEW, Volume 74: Pages 1321-1478,
June 1996.


James G. Dwyer*


The story of children who die because their parents, in observation of their own religious principles, withhold conventional medical treatment from them is a familiar one. In this Article, James G. Dwyer shows that the phenomenon of parents denying secular benefits to children goes far beyond those few highly publicized cases, extending into the realm of education as well as medical care. Moreover, Dr. Dwyer shows that the federal and state governments endorse this practice by statutorily exempting `religious objector' parents from otherwise generally applicable compulsory child care and education laws. He argues that courts addressing such exemptions, in emphasizing the parents' free exercise rights, have failed to observe that they infringe upon the children's equal protection rights. These children, solely because of their parents beliefs, do not receive the same legal protections from harm (for instance, inferior health care and an inferior education) that other groups of children receive. After describing in detail the types of discrimination that religious exemptions to child welfare laws inflict upon these children, Dr. Dwyer considers how each element of an equal protection analysis would apply to these exemptions. He concludes ultimately that very few, if any, of the exemptions should survive an equal protection challenge. - a conclusion with radical practical implications, particularly with regard to the educational system in this country. Finally, the author discusses the practical impediments to bringing equal protection claims, especially the fact that neither the parents nor the children themselves are likely to raise and support them, and proposes methods by which courts might nevertheless hear these claims.

[CIRP will not present the full text of this lengthy article which is of interest primarily to legal scholars. CIRP presents Dr. Dwyer's conclusion below which may be of more general interest. Those with interest in the complete text are directed to the print version at a law library.]

IV. Conclusion

Mainstream American Society has for several decades been in the throes of a struggle to effectuate its ideal of quality before the law. This ideal is far from being realized, but such significant steps have been taken that today the most debated question is whether historically under-privileged groups are now over-privileged, at least in regard to higher education opportunities and employment. This struggle and its successes, however, have not included all disadvantaged groups. The state has denied some groups of children equal protection of the laws to an increasing, rather than decreasing, degree, and few persons have noticed, because these children cannot speak for themselves and their parents do not seek equal treatment for them. We in the legal profession should pause from our discussions of affirmative action hiring of law professors and corporate managers to ask whether these children deserve our immediate attention and our efforts to secure equal treatment for all.

This Article has endeavored to explain why religious exemptions to child welfare and education laws violate the Equal Protection Clause and constitute an injustice to children of religious objectors. The legal conclusions strongly support elimination of these exemptions. The discrimination is clear and clearly intentional on the part of legislatures. The purpose of the exemptions is obvious and obviously illegitimate, as a naked preference for the interests of parents over the interests of children. The real obstacle to reversing this history of discrimination against children of religious objectors lies in finding a judge who can conceive of a child as a person distinct from her parents, with independent interests and no real commitment to any religion, and who understands that the religious preferences of parents should be relevant to the legal treatment of children only insofar as frustrating those preferences might unavoidably adversely affect children's well-being.

The world is which all children enjoy the equal protection of the laws would be a significantly different world from the present one. One difference that some might mourn in this "ideal" world would have little place for certain types of religious commitment and religious community - specifically, those based on unreflective, unchosen, inherited religious faith. Proponents of strong parental rights or of toleration of minority religious practices often raise this concern, although these persons themselves are typically not among the persons who have that kind of faith or who belong to that type of community. Their motivation seems principally the satisfaction they derive from living in a diverse social environment and in a tolerant society.

We must recognize that such satisfaction hardly counts as any justification, let alone an important one, for denying medical care and equal opportunity to some children. Liberals and conservatives alike should begin to think less about what kind of world they want to live in when they discuss children's upbringing and more about what kind of world is best for a child born today whose parents have religious views opposed to the types of benefits that collectively have decided children need. That child alone has fundamental interests in her health and education, and that child is therefore whom the law should put first.

* B.A., 1984, Boston College; J. D. 1987, Yale Law School;
Ph. D. 1995, Stanford University.

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(File revised 17 September 2002)

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