Religion & Law

Free Exercise v. Parental Rights

By Rob Vischer

Howard Friedman comments on a recent Oregon Supreme Court case dealing with a dispute between divorced parents over whether their 12 year-old son should be circumcised.  The court ended up remanding the case for further fact findings (which is probably what I would want to do as an appellate judge in a case like this) and thus did not take the opportunity to address whether a 12 year-old has free exercise rights. 

I'm not sure we've ever discussed this question on MoJ.  Courts have spoken of children as religious believers and actors -- e.g., in the Gobitis dissent (the case in which the Supreme Court upheld a compelled flag salute statute as applied to 10 and 12 year-olds), Justice Stone asserted that it would deny the children's "faith as well as the teachings of most religions to say that children of their age could not have religious convictions."  In such cases, the children are on the same side of the dispute as the parents, and thus there is no need to navigate the tension between religious liberty and parental rights.

How would Catholic legal theory address this tension?  I presume that neither value (the children's religious liberty nor parental authority) would serve as an absolute trump, but that there would have to be some sort of context-driven sliding scale.  I'm not exactly sure what the sliding scale would look like, though.  I also presume that the Church would not support free exercise rights for a child based on the same criteria by which courts would defer to a child's articulated preferences in custody disputes, and that there would need to be a much greater level of maturity shown.  For older children, would it matter what the child aims to preserve or attain through the invocation of free exercise rights?  If a 16 year-old child wants to attend church, but her atheist parents have forbidden her from having any exposure to religious teachings, does Catholic legal theory side with the parents or the child?  Does anything change if the 16 year-old wants to stay home, but her parents compel her to attend church?

Full post as published by Mirror of Justice on January 28, 2008 (boomark / email).