1. The First Amendment of the U.S. Constitution provides: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” (U.S.C.A. Const. Amends).

2. I borrow this terminology from James G. Dwyer, “Parents’ Religion and Children’s Welfare: Debunking the Doctrine of Parents’ Rights” (1994) 82 Cal. L. Rev. 1371, to which my own argument is much indebted. Dwyer writes: “The term ‘self-determining behavior’ will hereinafter be used to distinguish actions and decisions concerning solely or primarily one’s own person, property, and life-course, from “other-determining behavior,” or decisions and actions directed primarily at others, including efforts to control the person or life-course of another. Self-determining behavior includes, for example, wearing religiously symbolic clothing, abstaining from eating meat on certain holy days, going to temple, and smoking peyote.” Dwyer, ibid, at 1383.

3. In order to help the reader understand the positions advocated here, it is necessary to clarify the use of a few terms. An “interest” refers to a general notion of well-being which can be determined “objectively”—i.e. outside of the presence of any desire an individual may currently possess in reference to that interest, and regardless of whether the individual is aware of that interest. For example, it is within my interest to exercise regularly, regardless of whether I have a desire to exercise or whether I am aware of the benefits. A “preference,” on the other hand, signifies a present desire or wish of which one is fully aware. One may thus have a preference which conflicts with an interest. For example, it may be within one’s interest to brush one’s teeth daily even though one may not possess any such preference and may in fact prefer not to do so. One sign of maturity is thus becoming more aware of what one’s interests are and attuning one’s preferences toward those interests. Finally, phrases such as “through the child’s eyes” or “from the child’s point of view” are synonymous with “the interests of the child” but add the rhetorical force of perceiving the child as a unique individual. Some of a child’s current desires, values, or inclinations might need to be taken into consideration when determining her interests. It is thus important to understand that while an interest is present regardless of whether one desires that specific interest, or whether one is aware of the interest, it is not necessarily independent of the desires and dreams of the person in general. For example, if one of my desires is to be a world-class sprinter, then it is within my interest to train extensively, regardless of whether I desire to train or whether I know the necessity of training.

4. See Sherbert v. Verner, 374 U.S. 398 (1963). Since this case, free exercise questions have been governed by a balancing test between the burdens placed on an individual’s free exercise of religion and the State’s interest in imposing those burdens. See also Employment Div. v. Smith, 494 U.S. 872, 884–84 (1990), where the scrutiny of the State’s interests was relaxed from a “compelling” interest that could not be accomplished by less restrictive means to a generally applicable interests that only “incidentally” interferes with free exercise rights.

5. Wisconsin v. Yoder, 406 U.S. 205 (1972) at 214 [hereinafter Yoder].

6. Ibid. This belief was partly based on the view that “high school tends to emphasize intellectual and scientific accomplishments, self-distinction, competitiveness, worldly success, and social life with other students,” values the Amish find contrary to the simple religious tenets of their faith. Ibid, at 211–12.

7. Ibid. at 214–15.

8. Mozert v. Hawkins County, 827 F.2d 1058 (6th Cir. 1987).

9. The parents objected to the text for numerous reasons: they alleged that it contained witchcraft and other forms of magic, taught that values are relative and situational, and implied that one need not believe in God in any specific way but that any type of faith in the supernatural was acceptable. Further, they claimed that the textbook was false, offensive, evil, polluted, and heathen, and that it led Christian children to such pernicious world views as feminism, humanism, and pacifism. See ibid, at 1052.

10. For example, Justice Burger, who delivered the opinion of the Court in Yoder (supra note 5), claims that “a free exercise claim may be subject to limitation … if it appears that parental decisions will jeopardize the health or safety of the child …;” and, “the Amish have introduced persuasive evidence that… accommodating the religious objections … by foregoing one, or at most two, additional years of compulsory education will not impair the physical or mental health of the child …” Ibid, at 234. Some commentators have utilized this method of addressing the issue as well. Stephen Macedo, in support of the Court’s decision, states that the Amish “are not in important respects good liberal citizens, but they do not wholly tyrannize over their children and they keep to themselves.” Stephen Macedo, “Liberal Civic Education and Religious Fundamentalism: The Case of God v. John Rawls?” (1995) 105 Ethics 468 at 489.

11. This lack of concern for the interests of the child does not go unnoticed by Justice Douglas in his dissent. Douglas asserts that “[o]ur opinions are full of talk about the power of the parents over the child’s education. And we have in the past analyzed similar conflicts between parent and State with little regard for the views of the child” (Yoder, supra note 5 at 243–44). Unfortunately, his dissent was not, and has not been, heard.

12. Supra note 2 at 1386.

13. Ever since Sherbert v. Verner (374 U.S. 398 [1963]), the compulsion to breach a religious duty has been the doctrinally-defined burden on religious rights.

14. Or put another way, “even if I know that my way of life is best, I cannot translate this claim into the claim that I have a right to impose my way of life on anyone else, even on my own child, at the cost of depriving her of the capacity to choose a good life.” Amy Gutmann, Democratic Education (Princeton, NJ: Princeton University Press, 1987) at 40.

15. As shown below, an ideal legal system might not even recognize the parents’ conditional right against interference, but rather locate it within the child’s set of rights.

16. One may object that this concept of parental rights is not one that any serious thinker actually defends. No serious thinker insists that parents should have a right to control the upbringing of their children regardless of whether their actions are consistent with their children’s interests. In other words, when serious thinkers talk about parental rights they simply mean the conditional right against interference and not any sort of right over one’s children. Regardless of whether any serious thinker actually has endorsed the concept of parental rights as I have defined them, the manner in which the courts have decided cases of conflict between parents and the State results in granting parents ipso facto such rights. By not considering what the interests of the child are beyond mere bodily harm, the institutions themselves recognize parental rights as I have defined them. Further, even if no serious thinker endorses the concept of parental rights as I have defined them, such a concept is certainly prevalent within the common culture. No longer recognizing a parental right to control the upbringing of one’s children would thus require a major change in the way many people perceive the parent-child relationship, including many parents.

17. Supra note 2 at 1373. Dwyer utilizes the phrase ‘temporal interests’ as a contrast to concerns with ‘spiritual interests’.

18. Ibid, at 1415. John Stuart Mill maintained that children are practically treated in this fashion: “It is in the case of children that misapplied notions of liberty are a real obstacle to the fulfillment by the State of its duties. One would almost think that a man’s children were supposed to be literally, and not metaphorically, a part of himself, so jealous is opinion of the smallest interference of law with his absolute and exclusive control over them.” John Stuart Mill, On Liberty in Mary Warnock, ed., Utilitarianism, On Liberty, Essay on Bentham (New York: New American Library, 1962) at 126.

19. Supra note 2 at 1405.

20. By arguing that children are treated as mere means to the interests of others I am not claiming that parents treat their children as mere means. I argue that the system treats children in this way. For the most part, parents do have their child’s best interests at heart. The courts treat the child as a mere means by not considering what the child’s best interests actually are and by giving weight to the parent’s interests without finding whether these are consistent with the child’s best interests.

21. Many adults are also incompetent in this sense. Thus, the difference may not be as poignant as first appears. The consequences of this recognition are discussed below.

22. John Locke, Second Treatise of Government (Indianapolis, IN: Hackett Publishing Company, 1980) at 37.

23. Giving the State the power to override what the parents see as being in their child’s best interests should not be misinterpreted as implying that parents must consult with the courts to determine what is within their child’s interests. The withholding of such rights only entails that the actual cases that do come before a court should not be decided solely on the viewpoint of the parents without determining whether that viewpoint is consistent with the interests of the children involved—the interests of the children should be primary. Not acknowledging the concept of parental rights simply restricts what is to count as evidence in cases of conflict between the parents and the State and does not require parents to consult with the courts for everyday decision-making.

24. Dwyer, supra note 2 at 1386.

25. Or as Amy Gutmann asserts: “children are no more the property of their parents than they are the property of the state.” Supra note 14 at 33.

26. Yoder, supra note 5 at 212.

27. For communitarian criticisms of this individualism, see Michael Sandel, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982); “The Procedural Republic and the Unencumbered Self’(1984) 12 Political Theory 81; Alasdair Maclntyre, After Virtue: A Study in Moral Theory (London: Duckworth, 1981).

28. Of course, communitarians and liberals tend to continue to disagree about the nature of this dependence on one’s cultural community. Communitarians argue that the values provided for us by our cultural community are “constitutive” of our personal identity and are thus immune to a process of critical reflection and revisal (See Liberalism and the Limits of Justice ibid, at 150–65). Liberals contend that we can stand apart from some of our ends and thus possibly revise (or even reject) them. While “no one can put everything about himself in question all at once,” it “hardly follows that for each person there is some one connection or association so fundamental that it cannot be detached for inspection while holding others in place.” Ronald Dworkin, “Liberal Community” (1989) 77 Cal. L. Rev. 479 at 489.

29. Nomi Maya Stolzenberg, “He Drew a Circle That Shut Me Out: Assimilation, Indoctrination, and the Paradox of a Liberal Education” (1993) 106 Harv. L. Rev. 581 at 585.

30. Ironically, it is often communitarians who decry the undermining of traditional ways of life and argue that these traditional ways of life can justifiably be protected by internally restricting the individual rights of some members, while at the same time denying the possibility that persons can stand apart from their ends and therefore possibly revise them. But if persons are incapable of standing apart from their ends and revising them, it seems odd to argue that these very ends need protection at all.

31. Dwyer writes: “The emotional bond between parents and their children naturally engenders in children some inclination to adopt their parents’ faith.” Supra note 2 at 1444.

32. It is also quite plausible that the existence of cultural communities benefits individuals lying outside of these cultures. I discuss this possible benefit when addressing the State’s interest in maintaining diversity.

33. Will Kymlicka, Multicultural Citizenship (Oxford: Clarendon Press, 1995) at 83.

34. See Will Kymlicka, Liberalism, Community and Culture (Oxford: Clarendon Press, 1989).

35. Ibid, at 173.

36. As an example of this distinction between the context of choice and the character of a community, Kymlicka argues that “liberalizing the homosexuality laws in England changed the character of the cultural structure, without jeopardizing its existence” as a viable context of choice (supra note 34 at 169). Kymlicka is correct in pointing out that a culture can undergo some degree of change without jeopardizing its existence, but he appears to draw too wide a demarcation between the character of a community and the context it provides, since the character of a community at any given moment is at least partly responsible for providing the context. Some changes to the character of a community may undermine its ability to serve as a unique context of choice for its members and thus may jeopardize its existence as a distinct community.

37. In making this argument it is important to point out that I am using cultural communities to refer to what Kymlicka distinguishes as “ethnic (or religious) minorities,” and not to “national minorities”—“where nation means a historical community, more or less institutionally complete, occupying a given territory or homeland, sharing a distinct language and culture.” Supra note 33 at 11. National minorities, such as American Indians and Puerto Ricans, may have been granted certain self-government rights that preclude some sorts of intervention. While I maintain that the justice of the issue is the same—national minorities should not adopt and enforce policies that preserve their community at the expense of the children within that community—the manner in which this justice can be implemented may be limited.

38. Yoder, supra note 5, hints at this perspective in claiming that: “We must not forget that in the Middle Ages important values of the civilization of the Western World were preserved by members of religious orders who isolated themselves from all worldly influences ….” Ibid, at 223–24.

39. While arguments for the positive value of diversity often support parents who wish to receive exemptions, they are typically presented from a different perspective. Whereas parents typically seek to restrict state interference in the upbringing of their children because they wish to instill in their children aspects of their culture they consider to be true, the arguments for diversity are typically presented by liberals who recognize social diversity as a positive value and thus wish to restrict state interference in the parent-child relationship because such restrictions are needed to protect groups and thereby promote diversity. One difficulty with the liberal position is that it does not “really defend the right to maintain one’s culture,” but “instead imposefs] a duty to maintain one’s culture,” by making it an obligation for cultures to persist for the greater good. (Kymlicka, supra note 33 at 217). Some liberals even point out that the positive value of diversity works against parents who wish to receive exemptions: “Pluralism is an important political value insofar as social diversity enriches our lives by expanding our understanding of differing ways of life.” Therefore, in order “[t]o reap the benefits of social diversity, children must be exposed to ways of life different from their parents.” Gutmann, supra note 14 at 33.

40. “It is not clear that the diffuse benefits of diversity for society as a whole justify imposing these sorts of sacrifices on particular people.” Supra note 33 at 122.

41. As shown above, however, the notion that enforced educational standards will undermine the existence of cultural groups is most likely overstated. The still formidable power of parents and other role models within a culture, coupled with the high degree of diversity present in our society despite the historical existence of educational standards, makes this worry suspect. As Dwyer contends, “there does not appear to be any want of diversity in our society today, despite the fact that for many decades now the vast majority of children in this country have attended public schools.” Supra note 2 at 1444.

42. Thomas Jefferson is cited in Yoder {supra note 5) as advocating the view” that some degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system if we are able to preserve freedom and independence. Further, education prepares individuals to be self-reliant and self-sufficient participants in society,” thereby keeping them from becoming wards of the State. Ibid, at 221.

43. Supra note 29 at 584.

44. The Ottoman millet system is an example of a form of religious toleration that is not liberal. This system was, in effect, “a federation of theocracies,” where “Muslims, Christians, and Jews were all recognized as self-governing units (or millets), and allowed to impose restrictive religious laws on their own members.” What distinguishes liberal tolerance “is precisely its commitment to autonomy—that is that individuals should be free to assess and potentially revise their existing ends.” Kymlicka, supra note 33 at 156–58. For this reason, Kymlicka suggests adopting a policy of protecting cultural groups which only recognizes external protections that “give people the right to maintain their way of life if they so choose,” and not internal restrictions that “impose a duty on people to maintain their way of life, even if they would not voluntarily choose to do so.” Ibid, at 204.

45. Supra note 2 at 1429.

46. For example, in Cruzan v. Director, Missouri Department of Health (497 U.S. 261 [1990]), the Supreme Court ruled that parents had not presented convincing evidence that their daughter would choose to be removed from hydration and nutrition if she were competent. The Court contended that “there is no automatic assurance that the view of close family members will necessarily be the same as the patients would have been had she been confronted with the prospect of her situation while competent” (at 286). Nowhere did the Court suggest that if parents were opposed to life support systems on religious grounds would it be necessary to balance the parents’ free exercise rights against the daughters interests, as it had done in Yoder. As shown in Section I, there appears to be no good reason for this inconsistency.

47. In re Moe, 432 N.E.2d 712 (Mass. 1982).

48. Ibid. at 721.

49. Ibid, at 720.

50. It is unlikely that such a case would ever come before a court, since unless the child was rather severely beaten no one would notice or report the incident to authorities. This highlights die point that no longer recognizing parental rights only alters what is to count as evidence in cases that actually come before a court; it does not require parents to consult with courts for everyday decision-making. See supra note 23.

51. Carl E. Schneider, “Rights, Discourse, and Neonatal Euthanasia” (1988) 76 Cal. L. Rev. 151 at 159.

52. Kara T. Burgess, Comment, “The Constitutionality of Home Education Statutes” (1986) 55 UMKC L. Rev. 69 at 75.

53. Stale v. Whisner, 351 N.E.2d 750 (Ohio 1976).

54. Supra note 2 at 1435.

55. Rawls’ list includes, “basic rights and liberties …, freedom of movement, and free choice of occupation …, powers and prerogatives of offices and positions of responsibility in the political and economic institutions of the basic structure, income and wealth, and the social bases of self-respect.” John Rawls, Political Liberalism (New York: Columbia University Press, 1993) at 181.

56. John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971) at 92. See also Rawls, Political Liberalism, ibid, at 183–90.

57. A Theory of Justice, ibid, at 249.

58. Supra note 2 at 1428.

59. For example, in a case like Yoder it appears that the Court truly overlooked an opportunity to address the interests of the children involved by not even having them testify, as Justice Douglas acknowledged in his dissent. These children could have been asked questions about their dreams and aspirations that might have helped determine whether more education was necessary for the completion of those dreams. Perhaps the children would have expressed goals of being “an astronaut or oceanographer,” as Douglas contends in his dissent, or “nuclear physicists, ballet dancers, computer programmers, or historians,” as Justice Stewart and Justice Brennan assert in their concurrence. For such professions, more education would indeed be required. At the age of 15 it would appear that children are capable of articulating such dreams and aspirations, as well as capable of answering how or why discontinuing education might contribute to their well-being. At least the Court should have had the parents address why their proposal to remove the children from school was best from the child’s point of view, arguing how the children would choose if they were competent.

60. As Henly suggests: “Whether a certain sort of life would please a child often depends on how he has been socialized, and so we cannot decide to socialize him for that life by asking whether that kind of life would please him.” Kenneth Henly, “The Authority to Education” in Onora O’Neill & William Ruddick, eds., Having Children: Philosophical Reflections on Parenthood (New York: Oxford University Press, 1978) at 256.

61. Supra note 55.

62. Yoder, supra note 5 at 240.

63. Macedo, supra note 10 at 487.

64. Joel Feinberg, “A Child’s Right to an Open Future” in Freedom & Fulfillment (Princeton, NJ: Princeton University Press, 1992) at 84.

65. See supra note 33 at 81.

66. Supra note 2 at 1434.

67. Ibid.

68. Ibid, at 1434.

69. Yoder, supra note 5 at 232. Unfortunately, the Court’s response is far from satisfactory, committing a textbook example of the fallacy “tu quoque:” ‘The same argument could, of course, be made with respect to all church schools short of college. There is nothing in the record or in the ordinary course of human experience to suggest that non-Amish parents generally consult with children of ages 14–16 if they are placed in a church school of the parents’ faith.” (Ibid, at 232.). But whether other parents do consult with their children is irrelevant for considering whether they should consult with them, or whether the interests of the children should be determined in some other fashion, such as the substitute judgment method I advocate for just this type of case.

70. English-first type programs have actually been shown to be counter-productive in terms of teaching immigrants English. Immigrants learn English better when they view it as supplementing, rather than displacing, their mother tongue. Kymlicka, supra note 33 at 97.

71. Some awareness of the wider society also seems necessary to consider the child’s decision to stay within the community as truly a choice, and therefore people who argue for viewing one’s cultural attachments as at least partly chosen should not overlook the importance of education in viewing such a choice as meaningful. For arguments endorsing the position that cultural attachments are chosen, see Yael Tamir, Liberal Nationalism (Princeton, NJ: Princeton University Press, 1993), and Chandren Kukathas, “Are There Any Cultural Rights?” (1991) 20 Pol. Theory 105.