PARENTS’
RELIGIOUS
vs. RIGHTS
Where Faith Meets the Law: Child Welfare Laws and the First Amendment
Ann M. Haralambie, J.D.
© 2013 Ann M. Haralambie
Parental Rights
• We start with the assumption that parents love their children and want to do what is the best for them
• For people of faith, children are a gift from God
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Parental Rights
• We assume that parents know best how to rear their children
• We assume that parents’ love is child‐focused and benign
Children and God
• God may be seen as a parent
• Children’s view of God is often derived from their relationship with their own parents
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Parental Rights
• Parents want their children to accept their values
• For people of faith, parents have a God‐given responsibility to raise their children in the faith
Parens Patriae
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Parental Rights
• For people of faith, raising their children in the faith is not only pleasing to God, but is seen as being in the child’s best interests
• It is also how the faith is passed on from one generation to the next generation, a sacred duty
Parental Rights
• We are a heterogeneous society, and parents have different beliefs and practices concerning what is proper child‐rearing
• Courts recognize the parents’ fundamental liberty interest in rearing their children without undue state interference
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Supreme Court Cases
• Meyer v. Nebraska, 262 U.S. 390 (1923)
• Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510 (1925)
• Prince v. Massachusetts, 321 U.S. 158 (1944)
• Wisconsin v. Yoder, 406 U.S. 205 (1972)
• Santosky v. Kramer, 455 U.S. 745 (1982)
• Troxel v. Granville, 530 U.S. 57 (2000)
First Amendment
“Congress shall make no law respecting the establishment of particular religion or prohibiting the free exercise thereof”
(applies to the states through the Fourteenth Amendment)
Parens Patriae Right
The right and duty of the state as sovereign to protect the welfare of its citizens
This right has been invoked to protect children from mistreatment by their parents
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Supreme Court Cases
• Prince v. Massachusetts, 321 U.S. 158 (1944)
• Santosky v. Kramer, 455 U.S. 745 (1982)
• Bowen v. American Hospital Ass'n, 476 U.S. 610 (1986)
Religious Maltreatment Cases Must Balance:
• Parent’s autonomy based on:
– Fundamental parental rights
– First Amendment right to free exercise of religion
• State’s parens patriae right and duty inherent in its sovereignty
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Child’s Rights?
• Does the child have an independent right to be weighed in the balance?
– Child agrees with parents
– Child disagrees with parents
• Mature minor
• Emancipated minor
Child Welfare Cases May Involve
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Physical Abuse
Sexual Abuse
Emotional Abuse
Failure to Protect
Medical Neglect
Educational Neglect
Physical Neglect
Abusive Environment
Interventions May Include
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Ordering medical treatment
Ordering school attendance
Enjoining certain practices
Monitoring the child in the home
Removal of the child from home
Termination of parental rights 7
Some Barriers to Return
• “Rehabilitation” generally requires acknowledgement of wrongdoing
• It may be difficult for parents to conform their behavior to legal requirements which violate their spiritual beliefs and values
“Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.”
Prince v. Massachusetts, 321 U.S. 158, 170 (1944)
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There is a line
parents may not cross, even in service of their religious beliefs
The law must act to protect children from religiously‐based maltreatment
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