CALIFORNIA LAW REVIEW, Volume 82 Number 6: Pages 1371-1447,
December 1994.

Parents' Religion and Children's
Welfare: Debunking the Doctrine of
Parents' Rights

James G. Dwyer†

The scope, weight, and assignment of parental rights have been the focus of much debate among legal commentators. These commentators generally have assumed that parents should have some rights in connection with the raising of their children. Rarely have commentators offered justifications for attributing rights to persons as parents, and when they have done so they have failed to subject those justifications to close scrutiny. This article takes the novel approach of challenging parental rights in their entirety. The author explores the fundamental questions of what it means to say that individuals have rights as parents, and whether it is legitimate to to do so. In defining existing parental rights, the Article focuses on parental rights in religious contexts, because it is in this arena that the notion of parental rights takes its strongest form. The author contrasts parental rights with other individual rights that receive protection under our legal system. He concludes that the claim that parents should have child-rearing rights is inconsistent with certain principles underlying all other individual rights recognized in our society. After demonstrating this theoretical shortcoming of the notion of parental rights, the Article challenges the soundness of the commonly advanced justifications of parenting rights. The author concludes that all the proffered justifications for parents' rights are unsound and recommends a substantial revision of the law governing child-rearing. The author proposes that children's rights rather than parents' rights serve as the basis for protecting the legal interests of children. The law should confer on parents only a child-rearing privilege, limited to actions that do not harm the child's interests. Such a privilege, coupled with a broader set of children's rights, satifies parents legitimate interests in child-rearing while providing children with a more appropriate level of protection than they receive under the current legal approach.


Parent's rights play a prominent role in any discussion of the law relating to child-rearing. For those who would like to have the State use its power and resources to improve the lives of children, parental rights constitute the greatest legal obstacle to government intervention to protect children from harmful parenting practices and to state efforts to assume greater authority over the care and education of children. Legal commentators, whatever their views on the proper distribution of child-rearing authority between parents and the State, universally assume that parents should have some rights with respect to the raising of their children.1 They debate only what the scope of those rights should be,2 how to balance them against state interests or children's interests and rights,3, who should have them,4 and when people who have them should lose all or some of them.5

Those who do pause to consider why parents should have any child-rearing rights at all uniformly point to justifications that they believe to be compelling, but fail to subject those supposed justications to careful scrutiny. The usual justifications for parental rights fall into three categories, based on the interests they invoke: 1) children's interests in intimate relationships and in receiving care from those who know them best and care most about them; 2) parents interests in intimate relationships and in molding a new life in accordance with their ideals; and 3) society's interests in pluralism and in the family as an essential building block of democratic culture.6

This article takes a step back from debates over the scope, balancing, and attribution of parental rights to ask at a fundamental level what it means to say that individuals have rights as parents, and whether it is legitimate to do so. As as starting point, I closely examine judicial treatment of parental child-rearing rights and contrast this with judicial treatment of other legal rights. Through this analysis, it becomes apparent that the claim that parents should have child-rearing rights--rather than simply being permitted to perform parental duties and to make certain decisions on a child's behalf in accordance with the child's rights--is inconsistent with principles deeply embedded in our law and morality. Specificaly, there is in our legal culture an inherent limitation on the permissible scope of individual rights, confining them to protection of a right-holder's personal autonomy and self-determination. This limitation on legal rights embodies the moral precept that no individual is entitled to control the life of another person, free from outside interference, no matter how intimate the relationship between them, and particularly not in ways inimical to the other person's temporal interests.

The incongruity between parents' rights and established principles regarding the nature and inherent limitations of individual rights compels us to seek other moral and/or legal principles to support and legitimize this anomalous set of rights. Absent such justification, we might be forced to conclude that parents' rights, like the plenary rights of husbands over their wives in an earlier age, ultimately rest on nothing more than the ability of the politically more powerful class of persons to enshrine in the law their domination of a politically less powerful class, and on an outmoded view that members of the subordinated group are not persons in their own right. Thus, after demonstrating the theoretical difficulties associated with the notion of parent's rights, this article challenges the empirical and normative premises underlying the justifications typically offered in support of parental rights, and the reasoning that proceeds from these premises.

Concluding from this analysis that all of the proffered justifications for parent's rights are in fact unsound, I recommend a substantial revision of the law pertaining to child-rearing. I propose that children's rights, rather than parent's rights, be the legal basis for protecting the interests of children.7 I propose further that the law confer on parents simply a child-rearing privilege, limited in its scope to actions and decisions not inconsistent with the child's temporal interests. Such a privilege, coupled with a broader set of chidren's rights, is sufficient to satisfy parent's legitimate interests in child-rearing.8

As this proposal suggests in making the case against parental rights, I draw importantly on the distinction between a right and a privilege. In doing so, I follow Wesley Hohfeld's seminal work on the description of legal relations.9 Hohfeld urged the legal community to confine the use the term "right" to what he called "claims," which entail corresponding duties in other persons of non-interference (a negative claim) or assistance (a positive claim). Thus a parent has a "negative claim-right" against the State with respect to a given action when the State is under a duty owed to the parent not to interfere with the parents performance of that action. A parent has a "positive claim-right" against the State when the State is under a duty owed to the parent not to interfere with the parent's performance of that action. A parent has a "positive claim-right" against the State when the State is under a duty owed to the parentto provide some form of assistance to the parent. The parental rights of primary concern in this Article are parents' negative claim-rights against state interference in their child-rearing practices and decision making.10

Hohfeld rejected the use of the term "right" to refer to what he called a "privilege," which is simply the absence of any duty to refrain from a given activity. If, for example, I allow my neighhbor to borrow my shovel, she then enjoys a privilege to take and use it; she is no longer under a duty to me not to take and use my shovel. This privilege does not entail any claim against me should I interfere in her use of the shovel or take it away from her.11

Similarly, a parental privilege, unaccompanied by any parental rights, would merely legally permit parents to engage in the types of behavior normally associated with child-rearing, e.g., housing, feeding, clothing, teaching, or disciplining a child. It would thus exempt parents from certain duties with respect to children generally.12 The privilege would not give parents themselves any legal claims agaist state efforts to restrict their behavior or decision making authority. Under the legal regime I propose, such claims would repose only in the child. Parents would be authorized to act as agents for the child and to assert the child's rights against inappropriate state interference with child rearing practices. From a moral perspective, a parental privilege would not convey or reflect a sense of entitlement to direct a child's life, but instead would represent a benefit contingent upon the fulfillment of attendant responsibilities.13

It is important to recognize that this alternative approach would not entail doing away with the institution of the family in favor of colectivized child-rearing.14 Nor would it transfer to the State vastly greater control over child-rearing or enable the state to intervene whenever social workers think a parent is performing less than optimally.15 Finally, the elimination of parental rights would not entail the "liberation" of children from all parental governance and discipline. If it is true, as virtually everyone believes, that children require some governance and discipline for healthy development, it would be senseless and improper to attribute to children rights against all forms of parental control, or to exclude appropriate discipline from the scope of duties parents owe to their children.

Abrogating parents' rights would, however subtantially alter the way that courts analyze conflicts between parents and the larger community over child-rearing. Rather than balancing parents' rights against state interests in the care and education of children, as presently occurs, judges would decide these conflicts solely on the basis of children's welfare interests. Doing so would be likely, in turn to alter the precise limits of parental freedom and authority and to shift the boundary between permissible and impermissible state interventions.

Under this approach, a community seeking to restrict parents' child-rearing freedom or authority would not need to argue that the interests of the child and of the rest of society outweigh the rights of the parents in a given case. Rather the State would only need to argue that the harm to the child that non-intervention would allow is greater than the harm to the child that intervention would cause. The latter approach is likely to be more successful in protecting the interests of the child than the current approach.16

This Article focuses in the first instance on parental rights in religious contexts--that is, in situations where parents' religious beliefs shape their child-rearing preferences. It is in this context that the principal aspects of parent-state conflicts over child-rearing take on their most extreme form. Many people, including judges, find parents' claims to exclusive child-rearing authority to be motivated by religious belief. State child welfare laws accord particular deference to parents' religiously motivated child-rearing decisions.17 Moreover, the societal values of pluralism and state neutrality toward differing belief systems are most clearly at issue in the free exercise context. Focusing on situations that put these considerations into sharpest relief helps to draw out the moral implications of the notion of parent's rights.

Part I of this Article therefore concerns "parental free exercise rights"--rights predicated on religious belief enjoyed only by parents in the context of child-rearing. Parents may calim these rights when state child welfare laws or schooling policies conflict with their religiously grounded preferences regarding the care and education of their children. The courts have interpreted parental rights under the Free Exercise Clause of the First Amendment to extend the child rearing authority and independence of parents beyond what which they enjoy under the Due Process Clause of the Fourteenth Amendment. This means that in most cases courts have been unwilling to allow either the States' determination or their own judgment of a child's best interests to supplant parental free exercise rights. Indeed, only when accorded decisive weight to parental free exercise rights would threaten the child with death or grievious bodily injury or would result in the child receiving a grossly inadequate education will the State prevail under the current legal regime.

Part II explains why ascribing special rights to persons as parents is anomalous within our legal system. Providing for such rights implicitly endorses the proposition that one person may be entitled to the control, use, or direct the life-course of another, non-consenting person, and may assert on his own behalf a valid legal claim against any third party interference in the exercise of that control. Judicial interpretation of constitutional rights in the parenting context is unique in this regard, and fundamentally at odds with other, well-established constitutional and common-law principles.

Even if they accept the conclusions of Part II, defenders of parental rights might contend that there are very good reasons for treating children differently from adults, and for creating an exception in the parenting context to general principles regarding rights.18 In Part III, therefore, I consider a number of potential justifications for parental rights. Ultimately, each is deficicent, particularly in regard to parental rights under the Free exercise Clause. Justifications based on the necessity of protecting children's interests are logically flawed, because a more appropriaet approach is available--namely ascribing to children any rights necessary to protect their important interests. Justifications based on parents' interests or on societal interests, such as pluralism and the preservation of traditional communities, are morally flawed because, they implicitly adopt an instrumental view of children, treating them as mere means to the furtherance of other persons' ends.

Two final points about methodology deserve mention. First, in discussing interests and rights, I treat them as attaching to individuals, rather than attaching to relationships as unitary entitities. This is consistent with the way the courts generally interpret rights and construe interests in the context of parent-state conflicts over child-rearing, as well as in other contexts involving intimate relationships, such as marriage. It is also the most sensible approach, given the undeniable fact that a parent and a child are two non-identical persons whose interests at any point in their relationship may differ and even conflict. This individual-oriented approach to discussing interests and rights in no way denies, however, that the interests of parent and child are ordinarily consistent with one another and are, in fact, largely interdependent. Nor is it inconsistent with an understanding that familial relationships constitute a large part of the self-conception of young children.

Second, the most objectionable aspect of the court's construction of parents' rights is the extension of those rights in some cases to entitle parents to treat children in ways contrary to the children's temporal interests. The solution offered in this Article is to dispense with the notion of parental rights altogether. an alternative way to counter this phenomenon would be simply to argue that courts should narrow the scope of parental rights. However, merely narrowing the scope of parental rights would not cure two problems: first, inherent in the very notion of parental child-rearing rights is a morally dubious notion of parental entitlement; and second, becaues the rhetorical power of parental claims to child-rearing rights, judges would be unlikely in practice to contain those rights without carefully defined limits. Continuing to focus on parental claims would in all likelihood continue to distract judges from the interests of children, which should be the primary focus in any dispute concerning child-rearing.

[CIRP note: The main body of this valuble, but lengthy article will not be transcribed into electronic form. CIRP refers those who care to examine it to the printed version which may be found in a law library. CIRP presents Dr. Dwyer's conclusion below.]


Consideration of judicial interpretations of rights in numerous contexts has revealed that the notion of parental rights is inconsistent with well-established legal principles. Rights protect only a right-holder's own person and property. No one should possess a right to control the life of another person no matter what reasons, religious or otherwise, he might have for wanting to do so. Children are persons, intimately bound up with but nevertheless distinct from their parents. Supposed justification for parents' rights based on the interest of children, on the interests of parents, or on the interests of society simply do not withstand scrutiny.

These findings compel the conclusion that parental child-rearing rights are illegitimate. A better regime would simply grant parents a legal privilege to care for and make decisions on behalf of their children in ways that are not contrary to the children's temporal interests. Children themselves should possess whatever rights are necessary to protect their fundamental interest in an intimate, continuous relationship with their parents. This includes the right to be insulated from any state interference that is not in the children's interests.

Courts should acknowledge the illegitimacy of the parents' rights doctrine and decline to recognize claims of parental rights in the future. The evolution of our social attitudes toward, and legal treatment of, children in recent decades would afford the Supreme Court an adequate rationale for departing from the rule of stare decisis302 and for overruling Yoder and Pierce to abolish parental child-rearing rights. Subsequently, courts would decide cases involving disputes between parents and the State over child-rearing practices based on the interests and rights of the children involved. This approach would encourage a more appropriate social and legal understanding of parenthood as a privilege conditioned on a parent's willingness to operate within limits defined by temporal well-being of her children. It would also foster recognition that children are distinct persons deserving of respect equal to that accorded adults, and not merely means to the fulfillment of parents' life-purposes.

        1. This Article deals exclusively with child-rearing rights--rights to direct the life of a child in one's custody--which are distinct from child-bearing rights--rights to conceive and give birth to a child. The latter raise discrete issues in addition to some of those discussed below in relation to child-rearing rights. See e.g. Onora O'Neill, Begetting, Bearing, and Rearing, in HAVING CHILDREN: PHILOSOPHICAL AND LEGAL REFLECTIONS ON PARENTHOOD 25 (Onora O'Neill & William Ruddick eds., 1979 [hereinafter HAVING CHILDREN]. Custody rights also differ somewhat from child-rearing rights. Custody rights concern entitlement to engage in particulary practices or to make particular decisions regarding a child's upbringing. Custody rights are often at issue in divorces and in abuse or neglect proceedings. They are also at issue when biological parents seek to reclaim children from adoptive parents, as happened recently in highly publicized cases in Iowa, Illinois, and Florida. See infra note 20. The arguments of this Article apply equally against claims of parental custody rights.
         2. See e.g., Susan B. Apel, Custodial Parents, Child Sexual Abuse, and the Legal System: Beyond Contempt, 38 AM. U. L. Rev. 491, 526-29 (1989); Paul Schwartz, Note , Parental Rights and the Habilitation Decision for Mentally Retarded Children, 94 YALE L.J. 1715 (1985).
       3. See e.g., Elizabeth J. Sher, Note, Choosing For Children: Adjudicating Medical Care Disputes Between Parents and the State, 58 N.Y.U. L. REV. 157 (1983); Ronald A. White, Note, Divorce: Restricting Religious Activity During Visitation, 38 OKLA. L. REV 284 (1985).
         4. See e.g., John L. Hill, What Does It Mean To Be a "Parent"?: The Claims of Biology as the Basis for Parental Rights, 66 N.Y.U. L. REV. 353 (1991); Kathryn D. Katz, Majoritarian Morality and Parental Rights, 53 ALB. L. REV. 405 (1988); Lucy S. McGough & Lawrence M. Shindell, Coming of Age: The Best Interests of the Child in Parent-Third Party Custody Disputes, 27 EMORY L.J. 209 (1978); Irma S. Russell, Within the Best Interests of the Child: The Factor of Parental Status in Custody Disputes Arising From Surrogacy Contracts, 27 FAM. L. 585 (1988-89).
         5. See e.g., Marsha Garrison, Why Terminate Parental Rights?, 35 STAN. L. REV. 423 (1983); David L. Herring, Inclusion of the Reasonable Efforts Requirement in Termination of Parental Rights Statutes: Punishing the Child for the Failures of the State Child Welfare System, 54 U. PITT. L. REV. 139 (1992); Nancy B. Shernow, Comment, Recognizing Constitutional Rights of Custodial Parents: The Primacy of the Post-Divorce Family in Child Custody Modification Proceedings, 35 UCLA R. REV. 677 (1988).
         6. See Francis B. McCarthy, The Confused Constitutional Status and Meaning of Parental Rights, 22 GA. L. REV. 975, 1017 (1988). Commentators have also advanced arguments from natural law, see e.g., Mary V. Dobson, The Juvenile Court and Parental Rights, 4 FAM. L. Q. 393 (1970), but these are becoming increasingly less common and are "not very well received today," McCarthy, supra at 984. I do not directly address natural law arguments in this Article, but I do consider whether states should give deference to parents' religious views of their parental role. Nor do I directly address the view that children are the property of their parents. Almost no one seriously maintains this position today, although the language of some court decisions may still reflect such a view. William Ruddick, Parents and Life Prospects, in HAVING CHILDREN, supra note 1, at 123, 127.
         7. Among the most important of these interests is a child's interest in enjoying an intimate relationship with her parents, free from any state intervention that would entail greater costs than benefits for the child. It is widely believed that state intrusion into the family in and of itself takes as significant psychological and emotional toll on the child. Goldstein, Freud, and Solnit emphasized this consideration in their influential work on legal advocacy on behalf of children. Joseph Goldstein et al., Before the Best Interests of the Child (1979). Other scholars have contended that these writers overstated and failed to support adequately their concern about state intervention. See, e.g., Marsha Garrison, Child Welfare Decisionmaking: In Search of the Least Drastic Alternative, 75 GEO. L. J. 1745, 1762-66 (1987); Michael S. Wald, Thinking About Public Policy Toward Abuse and Neglect of Children: A Review of Before The Best Interests of the Child, 78 MICH. L. REV. 645, 666-71 (1980); See also Juditth G. McMuller, Privacy, Family Autonomy, and the Maltreated Child, 75 MARQ. L. REV. 569, 589-92 (1992) (citing evidence of correlation between family isolation from the community and child abuse). In addition, little if any consideration or study has been given to the possibly benificial effects of state intervention on the parent child relationship--for example, greater respect by parents for the children in their care and a greater appreciation by both parents and children that parents are not entitled to do whatever they want to their children. This Article assumes that state intervention in the family is potentially costly for children, and this too must be considered in deciding whether the State should intervene to protect a child from harmful parental practices and decisions.
         8. Part III suggests a principled means for distinguishing between legitimate parental interests and morally illegitimate parental desires. In brief, the former are consistent with the child's temporal interests, while the latter entail the sacrifice of the child's temporoal interests in order to satisfy the parent's wishes. Parts II and III demonstrate that even legitimate parental interests cannot properly give rise to parental child-rearing rights.
         9. Wesley N. Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 YALE L.J. 16, 30-36 (1913).
       10. Judges and to a much greater extent, the general public sometimes use the term "right" very loosely to refer to anything that a person is not prohibited from doing (i.e., privileges) as well as to refer to Hohfeldian claim-rights. As the analysis below reveals, the "rights" that the courts have accorded parents clearly include claim-rights and not merely privileges to carry out parenting responsibilities, there would be less reason to object to the concept. However, insofar as the term "right" conveys a sense of entitlement, its use would remain morally problematic in connection with child-rearing authority. See discussion infra Part II.
       11. A few additional terms also warrant clanification. The term "liberty" frequently appears in consitutional interpretation. See, e.g., Thornburg v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 793 n.2 (1986) (White J., dissenting) ("[P]arents have fundamental liberty to make decisions with respect to the upbringing of their children.") overruled in nonrelevant part by Planned Parenthood v. Casey, 112 S. Ct. 2791 (1992); Estelle v. Williams, 425 U.S. 501, 503 (1976) (noting that the "right to a fair trial is a fundamental liberty"); Zemel v. Rusk, 381 US 1, 14 (1976) ("[T]he fact that a liberty cannot be inhibited without due process of law does not mean that it can under no circumstances be inhibited."). Judith Jarvis Thompson explains that what we commonly mean by a "liberty" is a combination of a privilege and a negative claim right. JUDITH JARVIS THOMSON, THE REALM OF RIGHTS 53-54 (1990). Thomson criticizes Hohfeld's characterization of a liberty as identical to a privilege, based on the implausibility of thinking that when we say someone possesses a liberty to do something, such as travel to another state, all we mean to say is that that person is under no duty to travel to the other state. We also mean, Thompson insists, that other persons are "under a duty toward him not to interfere with his doing of it in some appropriately chosen set of ways." Id. Thus, for example, if a parent has no legal duty to refrain from teaching his child creationism, and the State has a duty not to interfere with his doing so, then the parents possess a liberty to teach his child creationism.
       Hohfeld termed a "power" the legal authority to modify, waive or abolish a claim-right or privilege. One exercises a power by, for example releasing a party from a contractual obligation and thereby abolishing one's claim-right against that party. An "immunity," on the other hand, is a protection against someone else changing the nature of one's own claim-rights or privileges. The First Amendment, for example, accords individuals an immunity which prevents Congress from abolishing their liberty to practice their religion.
       Finally, packages of claim-rights, privileges, powers, and/or immunties will often attach to persons with respect to a given activity. For example, typically, when a person possesses a claim-right against others interfering in their duty to refrain from that act--and she may also enjoy the power to waive that claim-right and an immunity against others extinguishing the claim-right and privilege. For simplicity of exposition, the term "right" is sometimes used in this Article to refer generically to such packages that have a claim-right at their core.
       12. These duties are embodied in laws such as those prohibiting kidnapping. In the present legal environment, such duties also arise as the corollary to the exclusive right of parents to perform child-rearing functions free from interference by other adults. In the legal regime advocated here, these duties would instead be a corollary to the rights of children to be under the continuous care of a parent, free from interference by other adults.
       13. In this light, a parent's role would be analogous to that of a lawyer appointed to represent a child in legal proceedings, such as a custody dispute. The lawyer enjoys the privilege of directing a certain aspect of the child's life--namely, the child's participation as an interested party in the legal proceedings by virtue of representing the child, never her own. There are obvious and important differences between the parent-child relationship and an attorney-client relationship, but the distinctive features of the parent child relationship constitute no justification for attributing rights to parents. See discussion infra Part III.
       14. Analogously, the fact that lawyers appointed to represent children do not possess a right to represent those children does not render the practice of child advocacy impossible or unstable. We impute to the children a positive claim-right to legal representation and a negative claim-right against third party interference in that legal reprentation.
       15. For an argument that the threshold of state intervention should be quite high even from an exclusively child-centered perspective, see Michael Wald, State Intervention on Behalf of "Neglected" Children: A Seach for Realistic Standards, 27 STAN. L. REV. 985 (1975).
       16. Consider for example, a child in need of surgery to correct a non life-threatening physical deformity, but who parents object to the procedure on religious grounds. A court faced only with weighing the cost and benefits to the child might well conclude that the benefits of living a normal healthy life outweigh the costs to the child, if any, which might arise from her parent's frustration, resentment toward the rest of society, and anxiety about their own salvation or that of the child. On the other hand, when courts have in similar cases balanced the State's interests in the child's welfare against the constitutionally protected rights of her parents, they have often concluded that the parents' rights trump the State's interests. See discussion infra notes 108-14 and accompanying text.
       17. Judicial and legislative deference to parents' alleged rights is certainly not limited, however, to the context of religiously motivated child-rearing. See discussion infra notes 19-20.
       18. A few commentators have acknowledged the anomalous nature of parents' rights, but endorsed and them nonetheless. See e.g., Andrew J. Kleinfeld, The Balance of Power Among Infants, Their Parents and the State, Part II, 4 FAM. L. Q. 410, 411 (1970); Martha Minow, Pluralisms, 21 CONN. L. REV. 965, 969 (1989) ("[D]eference to parental decisions about their children stands as the universal exception from self-determination under the Constitution."); Developments in the Law--The Constitution and the Family, 93 HARV. L. REV. 1156, 1353 (1980) [hereinafter Developments] (declaring a parental right unique "in that it protects the ability to control another person").

* * * * * * *

      302. See e.g. Planned Parenthood v. Casey 112 S. Ct. 2791, 2809 (1992) (plurality opinion of O'Connor, Kennedy, Soter, JJ. (noting that one factor to be considered in departing from precedent is whether facts have "come to be seen so differently, as to have robbed the old rule of significant application or justification")

    Doctoral candidate, Stanford University, B.A. 1984 Boston College,; J.D. 1987 Yale Law School. The author gratefully acknowledges the benefit he received from discussing earlier drafts of this Article with Jonathon Axelrad, Michael Bratman, Tom Grey, Susan Okin, Debra Satz, Kathleen Sullivan, Judith Jarvis Thomson, and Michael Wald.

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