Christians view government support of a growing rights movement for children as a threat to religious freedom.
In an ideal world, children would be born only to caring and responsible parents who provide for them physically, mentally, and emotionally.
But this is not an ideal world. Traditionally, the courts have presumed that parents know what is best for their children.
As Carl Esbeck, an evangelical and professor of law at the University of Missouri-Columbia, observes, “Because of the increased incidence in our society of child abuse and neglect, this presumption is being overcome, and courts are deciding against parents, with greater frequency.”
In fact, stories of children being mistreated by their parents have become standard fare on nightly newscasts nationwide, giving political momentum to advocates of “children’s rights.” Among the latest incidents to attract national headlines was the case of 19 children who in January were discovered in a roach-infested Chicago apartment. As a result of such incidents, some are calling for government agencies to accelerate their efforts to crack down on irresponsible parents and, where necessary, to step in on behalf of children.
Parental authority questioned
All agree that these distressing reports point toward deep-seated problems in society. A growing number of Christians, however, are voicing concern about proposed solutions that, in principle, tend toward weakening biblical concepts of parental authority.
“We are not against children’s rights,” says David Wagner, director of legal policy for the Family Research Council (FRC) in Washington, D.C. “But barring the finding of abuse and neglect, parents are the custodians of those rights.”
The battleground has extended far beyond incidents of clear, documented abuse. Conflicting rights of parents and governments have given rise to many difficult questions:
• Do authorities have the right to require an appendectomy on a child whose parents shun medical care for religious reasons?
• Should states punish parents who choose not to send their children to public schools even after standardized tests indicate the children are not learning at home?
• Does a minor have a right to an abortion without receiving permission from—or even notifying—her parents?
• Should a child have the right to “divorce” his parents based simply on irreconcilable differences?
A new push
These issues are not new. During this country’s Industrial Revolution, in fact, Christians led the crusade for child labor laws, which, in effect, established that parental authority is not absolute. Parents’ rights to decide how their children should be educated have also been challenged through the years.
“As the bureaucratic welfare state reaches out to do more and more good, it inevitably bumps into zones that used to be occupied by families and churches,” says Ed Gaffney, dean at Valparaiso (Ind.) University’s law school. “This is no minor trend; it’s the major story of America since the New Deal, and it spans both major political parties.”
The atmosphere in which these issues are being developed is cutting a wide swath across American culture. In December, for instance, the New York City Commission on Human Rights banned age discrimination in public places, such as museums, shops, and restaurants that had kept children from entering.
In articles published prior to becoming First Lady, Hillary Rodham Clinton advocated that children be given “a presumption of competence” in the courts so that they may have legal standing to pursue independent actions, such as seeking an abortion or obtaining plastic surgery.
Another example of what the FRC’s Wagner considers a disturbing trend was the much-publicized case of 12-year-old Gregory Kingsley of Orlando, Florida, who sued his natural mother for “divorce.” Wagner said he agreed that the boy should live with his foster parents, but said the case set a dangerous precedent because the child, not the foster parents, was listed as plaintiff.
Global view
On the international level, the United Nations’ 1989 Convention of the Child treaty highlights the rights of children. More than 140 nations have signed on with the UN treaty, and the United States is among two-dozen that have not. Among the 54 points of the charter are provisions to protect children from “all forms of discrimination or punishment on the basis of the status, activities, expressed opinions or beliefs of the child’s parents.” The charter proclaims that children have rights to “freedom of thought, conscience, and religion.” If ratified, the document would carry the weight of international law.
Its opponents, including such organizations as the FRC, Eagle Forum, and the Rutherford Institute, believe the statement grants government too much power in what have traditionally been considered family matters.
“There are parents who say things to their children that scar them emotionally,” says Steve McFarland, director of the Center for Law and Religious Freedom in Annandale, Virginia. “But there are also some tyrannical bureaucrats who think they know what is best for the emotional and physical development of children.” If the culture continues to chip away at what he considers parents’ inherent rights, McFarland asks, “What’s to prevent the government at some point from deciding that evangelical Christianity is unhealthy for a liberated mind?”
Noting that Associated Press religion editors deemed the 1993 Branch Davidian tragedy last year’s top story, McFarland says he fears a backlash, in which authorities might be too quick to take children away from parents whose religious beliefs appear to put their children at risk.
The good news for those who fear the erosion of parents’ rights, according to Esbeck, is that such erosion has not occurred at the level of federal law.
“The Supreme Court has taken a middle view,” he says. “It has protected parental rights while recognizing that there are cases where children need to be taken out of the home. With the federal court system, the presumption has always been on the side of the parents. I don’t see that changing in the near future.”
The current status of parents’ rights, however, is not so secure with state and local authorities and is inconsistently applied across the country. “In some states, a minor can’t get her ears pierced without her parents’ permission,” McFarland says, “but she can terminate the life of her parents’ grandchild without even having to give them notice.”
Medical concerns
Even the staunchest advocates of parents’ rights acknowledge that the state has a right to intervene in obvious cases of physical abuse. But the clash over medical care and religious rights is not always so clear.
In December, Chicagoan Tabita Bricci, based on her Pentecostal beliefs, refused to submit to a cesarean section, even though some doctors deemed it necessary to save the life of her unborn child. At four judicial levels up to the U.S. Supreme Court, judges sided with the rights of the 22-year-old mother over the fetus. (Bricci delivered a healthy boy without complications.)
Christian Scientists have been battling states over child rights for years. (See CT, Oct. 4, 1993, p. 53.) There is a growing movement among various state legislatures to remove religious exemptions for denying medical care to children.
“If there is clear and compelling evidence from the medical community that the life of the child is at risk, I believe that constitutes a compelling government interest to intervene,” Esbeck says. On issues such as home schooling, the consensus is less than unanimous. Some Christians are contending that, even where children are falling behind their peers, government should adopt a “hands off” policy.
Esbeck, author of Missouri’s home-schooling statute, believes that government has the right to hold home-schooling parents accountable for their children’s mental progress, based mainly on standardized testing, and to intervene, if necessary. But that intervention, he adds, should take the form of trying to work with parents, rather than punishing them. The Rutherford Institute recently defended a home-schooling mother who was hauled off by Michigan police officers in the middle of the night, without warning, while her children looked on in terror.
Abusive situations
Perhaps the thorniest area in the effort to draw clear boundaries around parents’ rights is the question of abuse. Among the concerns of some conservatives is that any corporal punishment will come to be considered child abuse.
Elizabeth Stellas, program specialist for the Seattle-based Center for the Prevention of Sexual and Domestic Violence, believes such fears are unrealistic, in part because authorities’ plates are so full with cases of undisputed abuse.
“The likelihood of a false or unjustified accusation is almost negligible compared to the possibility that a child will be hurt,” she says. “We need to ask, ‘Who is the most vulnerable? Who is at the greatest risk for harm?’ If someone noticed a bruise on my six-year-old child, I would much rather they get me investigated than ignore it.”
Questions of abuse are complicated with the introduction of the highly subjective area of emotional abuse. In a recent column criticizing Hillary Rodham Clinton and the Children’s Defense Fund’s support for the right of children to sue their parents, Rutherford Institute founder John Whitehead wrote that “ ‘Nintendo deprivation’ lawsuits are just the beginning.”
The FRE’s Wagner acknowledges that the current threat of such suits is not widespread. “I wouldn’t want parents to be paranoid,” he says, “but neither would I want them to be falsely confident. What John Whitehead is talking about is not ridiculous.”
Esbeck stressed that the burden of proof in cases of alleged abuse should lie with authorities. “We should not be too quick to question the presumption that the best place for a child—physically, mentally, and emotionally—is with the parents,” he says, “sometimes even when those parents are far from perfect.”
It is not just self-described conservatives who are sounding the alarm regarding the growing social and legal challenges to parents’ rights. Arthur Dyck, an ethicist who teaches at Harvard Divinity School, believes the concern among Christians is justified, given the growing “aggressiveness of the state,” which he says represents the coming of age of secular philosophies that run counter to biblical values.
According to Dyck, the influence of such past philosophers as John Locke, John Stuart Mill, Thomas Hobbes, and Jeremy Bentham runs rampant in the country’s educational system from kindergarten through divinity school. “These thinkers defined rights individually, not relationally, as the Bible does,” says Dyck. “This conflict is cast in terms of children versus parents. [Children] are not taught about their responsibilities to their parents or to families and communities.”
Attitude problem?
According to McFarland, the recent passage of the Religious Freedom Restoration Act (RFRA) will go a long way toward preserving parents’ rights.
“Parents can now invoke RFRA to opt out of objectionable public-school curriculum,” he says. But reversing the trend will require action on several fronts, including reforming laws and even legal philosophies. In her book Rights Talk, Harvard University law professor Mary Ann Glendon proposes that it is not just individuals who have rights, but institutions such as families and communities.
“We have this notion about the best interest of the child,” Dyck says. “What about what is best for all parties? The problem is the society no longer sees them as being connected.”
All the analyses point to an issue more fundamental than children’s rights versus parents’ rights. The ultimate question, one that most likely will be answered in many different venues for a long time to come, is whether traditional concepts of the institution of family and the role of parents will be able to withstand government’s increasing sense of its own responsibilities.
“This is not a dispute between parents and children with the government as referee,” Wagner says. “It’s a dispute between parents and government over who is going to be the custodian of children’s rights.”
By Randy Frame.
