College of William & Mary Law School William & Mary Law School Scholarship Repository Faculty Publications Faculty and Deans 1996 The Children We Abandon: Religious Exemptions to Child Welfare and Education Law as Denials of Equal Protection to Children of Religious Objectors James G. Dwyer William & Mary Law School, [email protected] Repository Citation Dwyer, James G., "The Children We Abandon: Religious Exemptions to Child Welfare and Education Law as Denials of Equal Protection to Children of Religious Objectors" (1996).Faculty Publications. 170. https://scholarship.law.wm.edu/facpubs/170 Copyright c 1996 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/facpubs THE CHILDREN WE ABANDON: RELIGIOUS EXEMPTIONS TO CHILD WELFARE AND EDUCATION LAWS AS DENIALS OF EQUAL PROTECTION TO CHILDREN OF RELIGIOUS OBJECTORS JAMES G. DWYER* The story of children who die because theirp arents, in obser- vance of their own religious principles, withhold conventional medical treatment from them is a familiar one. In this Article, James G. Dwyer shows that the phenomenon of parents denying secular benefits to their children for religious reasons goes far beyond these few highly publicized cases, extending into the realm of education as well as medical care. Moreover,D r.D wyer shows that the federal and state governments endorse this practice by statutorily exempting 'religious objector' parents from otherwise generally applicable compulsory child care and education laws. He argues that courts addressings uch exemptions, in emphasizing the parents' free exercise rights, have failed to observe that they infringe upon the children's equal protection rights. These children, solely because of theirp arents' beliefs, do not receive the same legal protectionsf rom harm (for instance, inferiorh ealth care and an inferior education) that other groups of children receive. After describing in detail the types of discriminationt hat religious exemptions to child welfare laws inflict upon these children, Dr. Dwyer considersh ow each element of an equalp rotection analysis would apply to these exemptions. He concludes ultimately that very few, if any, of the exemptions should survive an equal protection challenge-a conclusion with radical practical implications,p articularlyw ith regardt o the educational system in this country. Finally, the author discusses the practical impediments to bringinge qualp rotectionc laims, especially the fact that neither the parents nor the children themselves are likely to raise or support them, and proposes methods by which courts might nevertheless hear these claims. * B.A. 1984, Boston College; J.D. 1987, Yale.Law School; Ph.D. 1995, Stanford University. 1322 NORTH CAROLINA LAW REVIEW [Vol. 74 I. CHILD WELFARE AND EDUCATION LAWS THAT DISCRIMINATE AMONG CLASSES OF CHILDREN .................... 1329 A. School Regulations ........................... 1329 B. Medical Care Requirements ..................... 1353 II. RELIGIOUS EXEMPTIONS AS VIOLATIONS OF CHILDREN'S EQUAL PROTECTION RIGHTS ....................... 1365 A. State Action ................................. 1366 1. Discriminatory Laws ....................... 1367 2. State Encouragement of Discriminatory Private Conduct .......................... 1375 B. Intentional Discrimination ...................... 1384 C. Level of Scrutiny ............................. 1390 1. Suspect or Quasi-suspect Class ............... 1393 a. Likelihood of Relevance ................ 1396 b. History of Discrimination ................ 1399 c. Political Power ........................ 1404 d. Control Over Defining Characteristic ....... 1408 2. Fundamental Right or Important Interest ....... 1412 D. Applying Intermediate Scrutiny to Religious Exemptions 1423 1. Legitimacy of State Purposes ................ 1423 a. Parents' Constitutional Rights ............ 1427 b. Parents' Religious Preferences ............ 1429 c. Alternative State Purposes ............... 1433 i. Promoting Family Relationships ........ 1434 ii. Promoting Children's Religious Interests .. 1439 iii. Promoting Cultural Diversity .......... 1446 2. Importance of Interests ..................... 1448 3. Substantial Relation to Interests .............. 1454 4. Conclusion .............................. 1463 III. PRACTICAL OBSTACLES TO CHALLENGING RELIGIOUS EXEMPTIONS ................................... 1465 A. Finding a Plaintiff ............................ 1465 B. What Relief? ................................ 1474 IV. CONCLUSION ................................... 1476 We commonly excuse parents, legally and morally, for inflicting upon their children what most people would regard as harm, when the parents act on the basis of religious belief. While states have prosecuted some parents for causing their children to die by failing to 1996] CHILDREN OF RELIGIOUS OBJECTORS 1323 obtain necessary medical care, even though the parents had sincere religious objections to medical care,' these few cases represent only the most extreme situations and mask a quite widespread but generally overlooked phenomenon. In numerous areas of the law relating to children's care and education, certain parents enjoy an exemption from normal parental legal responsibilities solely because they have religious beliefs in opposition to the conduct that those responsibilities would entail. These exemptions and the cultural ethos that supports them reflect a pervasive social indifference to the interests of particular groups of children. These children cannot speak for themselves and have no one to speak for them except the very parents who want to deny them the benefits and protections that the law guarantees other children. This Article challenges the legal comniunity to recognize and address squarely the law's denial of equal protection to some children simply because of their parents' religious beliefs. Numerous instances of discrimination among children based upon the religious beliefs of their parents appear in the laws relating to child-rearing. This Article focuses on the areas of medical care and school regulation.2 In these areas, the harms to children arising from the law's discriminatory treatment are readily discernable, and the children are unlikely to have any advocate for their independent interests. In these areas, myriad state and federal laws impose on parents and educators responsibilities to undertake or to refrain from certain actions, reflecting a legislative judgment that imposing these responsibilities is necessary to protect and promote the well-being of children. As a general rule, for example, parents by law must ensure that their children receive vaccinations, physical examinations, ade- quate nutrition, and medical treatment for disease or injury.3 States also legally mandate that parents send their children to schools that comply with regulations regarding teachers' qualifications, content and methodology of instruction, and several other aspects of school opera- tion.4 1. See Jennifer L. Rosato, Putting Square Pegs in a Round Hole: ProceduralD ue Process and the Effect of Faith Healing Exemptions on the Prosecution of Faith Healing Parents,2 9 U.S.F. L. REv. 43, 48 n.28 (1994) (noting that 42 such prosecutions have been documented). 2. Other areas in which such discrimination exists include adoption and foster care. See infra note 161 and accompanying text. 3. See infra notes 126, 140-42, 156-58 and accompanying text. 4. See infra notes 22-52 and accompanying text. 1324 NORTH CAROLINA LAW REVIEW [Vol. 74 At the same time, however, these laws typically restrict their application to avoid conflict with the beliefs and practices of minority religious groups.' Significantly, legislatures have included religious exemptions in child welfare and education laws even in many areas in which the courts have found that religious accommodation is not constitutionally required. As a result of these exemptions, the children of members of some religious groups do not receive the benefits and protections that the laws afford children generally. Substantial litigation and legal commentary has surrounded reli- gious objections to a few sorts of state child welfare and education laws. Most relates to objections to vaccinations or to blood transfusions or other medical care for children at risk of dying, and objections by church school officials or home schooling parents to teacher certification requirements.6 These are cases in which a state has refused to accommodate the religiously grounded desires of parents regarding the care and education of their children, and the parents have sued the state claiming a violation of their constitutional rights. No one has ever advanced in court, however, a claim that when the state does accommodate "religious objector" parents it thereby violates a fundamental right of their children-namely, the children's Fourteenth Amendment right to equal protection of the laws.7 That no one has ever asserted such a claim is unsurprising, since neither state officials nor parents would have an interest in advancing such a claim, and whether anyone else could advance such a claim is unclear. Legal commentators, too, have failed to perceive the problem of equal protection for children that such exemptions create.8 Instead, both courts and commentators have analyzed religious exemptions principally in terms of the religious free exercise rights of the parents who receive the exemptions, and in terms of the equal protection rights of otherp arents-those who object to a particular child welfare 5. See infra notes 60-75, 110-19, 127-39, 146-49, 159-60 and accompanying text. 6. See infra notes 86-87, 113-14, 133-39 and accompanying text. 7. One state court has commented that a spiritual treatment exemption to neglect laws violates the equal protection rights of children who fail to receive medical care as a result. State v. Miskimens, 490 N.E.2d 931, 935 (Ohio 1984). 8. The only recognition of this problem the author has encountered in the scholarly literature are very brief discussions of spiritual treatment exemptions to neglect laws in equal protection terms in Ann M. Massie, The Religion Clauses and ParentalH ealth Care Decisionmakingf or Children: Suggestionsf or a New Approach, 21 HASTINGS CONST. L.Q. 725, 771-73 (1994), and in Paula A. Monopoli, Allocating the Costs of Parental Free Exercise: Striking a New Balance Between Sincere Religious Belief and a Child's Right to Medical Treatment, 18 PEPP. L. REv. 319, 348-50 (1991). 1996] CHILDREN OF RELIGIOUS OBJECTORS 1325 law but do not fall within the law's exemption because they do not have the right sort of beliefs or religious affiliation.9 Occasionally legal commentators, troubled by the consequences of religious exemp- tions for the welfare of children, assert on the children's behalf moral claims to state protection of their welfare. They typically balance such claims against parents' constitutional rights in order to argue that courts should limit or eliminate the religious exemptions.'° They fail to perceive, however, that a fundamental problem of inequality 9. See, eg., Dalli v. Board of Educ., 267 N.E.2d 219,223 (Mass. 1971) (holding that religious exemption to immunization law violates Establishment Clause and equal protection rights of parents not covered); Brown v. Stone, 378 So. 2d 218,223 (Miss. 1979), cert. denied, 449 U.S. 887 (1980) (holding that religious exemption to compulsory immunization law violates equal protection rights of parents not covered by the exemption); Miskimens, 490 N.E.2d at 933-35 (holding that spiritual treatment exemption to child neglect law violates the Establishment Clause and the equal protection rights of parents not covered by the exemption); Massie, supra note 8, at 736-46 (arguing that Free Exercise Clause does not require spiritual treatment exemption); Shelli Dawn Robinson, Commentary, Commonwealth v. Twitchell: Who Owns the Child?,7 J. CONTEMP. HEALTH L. & PoL'Y 413, 425-31 (1991); Judith Inglis Scheiderer, Note, When Children Die as a Result of Religious Practices, 51 OHio ST. L.J. 1429, 1439-41 (1990); Edward E. Smith, Note, The Criminalization of Belief- When Free Exercise Isn't, 42 HASTINGS L.J. 1491, 1494-1509 (1991) (discussing free exercise rights of religious objectors). Commentators and courts have also viewed religious objection exemptions to child welfare laws as violations of the Establishment Clause. E.g., Dalli, 267 N.E.2d at 223; Massie, supra note 8, at 747-71. In addition, many scholars have discussed the due process problems that arise when states include spiritual treatment exemptions in their child neglect laws while at the same time imposing criminal liability on any parent who causes a child to die by failing to secure appropriate medical care, regardless of the reason. See, e.g., Christine A. Clark, Religious Accommodation and Criminal Liability, 17 FLA. ST. U. L. REV. 559, 584-88 (1990); Rosato, supra note 1; Scheiderer, supra, at 1441-43. Notably, all of the works cited, which are typical of the scholarly work that has been done on religious parenting, discuss only instances in which children die because their parents rely exclusively on spiritual treatment. The more common and widespread practice of denying children immunization and periodic physical examinations apparently has not captured the attention of legal writers. Similarly, in the area of education, much has been written about battles between religious conservatives and states over state certification of church schools and home schools, while day-to-day practices of these schools that might be harmful to the secular interests of their pupils, such as sexist teaching, receive almost no attention. See, eg., Neal Devins, Fundamentalist Christian Educators v. State: An Inevitable Compromise, 60 GEO. WASH. L. REv. 818 (1992); Mark Murphy, Note, A ConstitutionalA nalysis of Compulsory School Attendance Laws in the Southeast: Do They Unlawfully Interfere with Alternatives to Public Education?, 8 GA. ST. U. L. REV. 457 (1992); Daniel J. Rose, Note, Compulsory Education and Parent Rights: A Judicial Framework of Analysis, 30 B.C. L. REv. 861 (1989). 10. See, e.g., John T. Gathings, Jr., Comment, When Rights Clash: The Conflict Between a Parent's Right to Free Exercise of Religion Versus His Child's Right to Life, 19 CUMB. L. REv. 585, 604-08, 615-16 (1989); Wayne F. Malecha, Note, Faith Healing Exemptions to Child ProtectionL aws: Keeping the Faith Versus Medical Caref or Children, 12 J. LEGIS. 243, 259-63 (1985). 1326 NORTH CAROLINA LAW REVIEW [Vol. 74 among groups of children inheres in these situations, a problem that rises to constitutional dimensions and throws into question in its entirety this very common practice of according some parents a right to deny their children important secular benefits. Indeed, even the fact that some children must have their interests balanced against the religious preferences of other persons, before a court can determine whether they are to receive the legal protections guaranteed other children, is a form of unequal treatment that requires justification. Courts would never consider the religious views of other persons as a justification for the state denying benefits to a particular group of adults. This Article demonstrates that a compelling legal argument against religious exemptions to child welfare and education laws is that they discriminate among groups of children, in the conferral of important state benefits, on an arbitrary and improper basis-namely, the religious beliefs of other persons. Such a Fourteenth Amendment equal protection challenge on behalf of the adversely affected children would be stronger than other approaches to protecting their well- being because it would elevate the children's status in these situations from that of parental appendages or petitioners for state largesse to that of constitutional right-bearers." Asserting that an exemption violates some children's constitutional right would force the courts to focus more closely on the underlying purpose of child welfare laws-to provide children with forms of protection that a majority of citizens (not just liberal child advocates) deems important enough to mandate.2 It would induce judges to recognize the distinct person- hood of children and the ways in which children's welfare interests may conflict with the preferences of parents, facts that courts 11. Massie argues that spiritual treatment exemptions violate children's free exercise rights. Massie, supra note 8, at 769-71. This argument does attempt to raise children's status to that of right-bearers, but it is not a very strong argument. If a child himself does not have religious beliefs inconsistent with those of his parents, a supposed free exercise right of the child would have to depend on one of three claims: (1) that children have a right not to have any religious (or other?) views impressed upon them, which is implausible, (2) that present treatment of a child might be contrary to his future views concerning religion, which is highly speculative, or (3) that present treatment of a child might be contrary to the child's future interest in religious freedom (e.g., if it caused the child to die or stifled the growth of intellectual capacities), which is better characterized as the child's present interests in health and cognitive development. 12. This has been the result in equal protection suits that parents have brought on behalf of particular groups of children. See, e.g., Plyler v. Doe, 457 U.S. 202, 221-25 (1982) (holding that denial of free public education to undocumented alien school-age children violates Equal Protection Clause). 1996] CHILDREN OF RELIGIOUS OBJECTORS 1327 routinely overlook.3 It would also reveal the impropriety of balancing children's fundamental interests against parents' wishes, for whatever reason, to depart from societal standards of parental responsibility. Finally, an equal protection challenge on behalf of children would force states to do something they have never been called on to do-to articulate in court a legitimate reason for their practice of de jure discrimination among different groups of children in providing protection from parents' harmful practices and decisions. Thus, rather than requiring a showing that the state (that is, the rest of us) has a compelling interest in protecting the child of a religious objector, as is required when parents' free exercise rights are the only constitutional rights asserted, an equal protection claim on behalf of the child would impose on the state the burden of showing that it (and not just the parents) has a sufficiently strong interest in denying protection to the child. In searching for such a rationale, state officials and judges would have to confront some very difficult questions about the moral, politi- cal, and legal standing of children born into minority religious communities, about the state's responsibility for the welfare of these children, about the permissible bases for state decisionmaking in this realm, and about the coherence and legitimacy of a notion of parental authority and entitlement that precludes treating all children as equal human beings. The answers they arrive at may force state officials and judges not only to eliminate religious exemptions that are not, according to past judicial decisions, constitutionally compelled, but also to reconsider the prevailing judicial interpretation of the First and Fourteenth Amendments as conferring on parents a right to control the lives of their children.4 This Article analyzes the theoretical, doctrinal, and practical issues that an equal protection claim on behalf of religious objectors' children would raise. Part I describes several of the ways in which federal and state laws discriminate among groups of children based upon the religious preferences of their parents. It highlights two particular legal provisions-one in the area of education and one in the area of medical care-that child advocates might wish to challenge on equal protection grounds. The first is a religious exemption from prohibitions against sex discrimination and sex bias in elementary and 13. See James G. Dwyer, Parents' Religion and Children's Welfare: Debunking the Doctrine of Parents'R ights, 82 CAL. L. REV. 1371, 1394-96, 1399-1402 (1994). 14. For an argument on different grounds for eliminating parents' rights, see Dwyer, supra note 13. 1328 NORTH CAROLINA LAW REVIEW [Vol. 74 secondary education.'" The second is a religious exemption from compulsory child immunization laws.'6 Focusing on the sexist practices of certain types of religious schools brings out particularly sharply the conflict that all of these situations pose between, on the one side, accommodation of minority religious practices and the political values supporting such accommodation and, on the other side, the commitment of a liberal democracy to the value of equality among persons. Part II of the Article sets forth the elements of an equal protection claim and analyzes with respect to each the arguments that advocates for children might advance against parental religious exemptions, as well as arguments that parents and the state might advance in response. Of particular importance are discussions concerning the level of scrutiny that courts should apply to these statutory provisions and discussions concerning the legitimacy of the legislative purposes that states might assert in defense of parental religious exemptions. Part II argues that child welfare and education laws containing parental religious exemptions should be subjected to heightened judicial scrutiny.7 Further, it explains why the actual legislative purpose underlying these exemptions (deference to or accommodation of the religiously-grounded wishes of parents) is not only insufficient to satisfy this standard, but is in fact an illegitimate state purpose that courts should not even consider."8 Part II also constructs a number of other potential rationales for parental religious exemptions, and shows that these too are inadequate. 9 It thus concludes that most, if not all, religious exemptions to child welfare and education laws violate the Fourteenth Amendment Equal Protection Clause. Accordingly, courts should invalidate them. However, a serious practical obstacle lies in the way of securing equal protection of the laws for religious objectors' children. An equal protection claim of the type that Part II articulates would not have the support of parents, state officials, or the general public, and would be unlikely to have the support of the children themselves. Part III addresses this dilemma and finds that, while the rules of federal procedure do not formally preclude a suit going forward despite the absence of support from any of the parties directly 15. See infra notes 43-59, 72-85 and accompanying text. 16. See infra notes 140-55 and accompanying text. 17. See infra notes 230-343 and accompanying text. 18. See infra notes 352-69 and accompanying text. 19. See infra notes 371-446 and accompanying text. 1996] CHILDREN OF RELIGIOUS OBJECTORS 1329 affected by the challenged state action, past judicial applications of the relevant rules suggest that it would in practice be quite difficult to bring a claim on behalf of religious objectors' children.2 Any judge would likely be reluctant to confer child-representation status on an outside advocate when none of the parties involved supports such representation. So applied, the federal rules may themselves present an equal protection problem, by precluding claims to enforce the constitutional rights of a certain class of persons. Thus, Jenny Doe, a young girl about to begin school for the first time, whose parents wish to send her to a fundamentalist Christian school that will teach her to assume a role subordinate to men for the rest of her life, suffers discrimination at three levels. (1) Her parents, her school, and her parents' religious community treat her as inferior by virtue of her gender. (2) Federal and state law-makers treat her as less deserving than children in secular schools of protection against sexist teaching. (3) Finally, the courts treat her as less deserving of enforceable constitutional rights than the rest of society. Part HI suggests a strategy for initiating an equal protection suit on behalf of such a child despite existing obstacles.2 It also con- siders possible compromise positions regarding various religious exemptions that would allow states to protect somewhat the develop- mental interests of the children involved while minimizing parents' inevitable resistance. As a matter of legal principle, avoiding such resistance is not a legitimate reason for legally discriminating against these children, but as a matter of political reality it is, of course, something courts and state officials will-and perhaps should -consider. I. CHILD WELFARE AND EDUCATION LAWS THAT DISCRIMINATE AMONG CLASSES OF CHILDREN A. School Regulations States regulate public schools extensively. All states require, for example, that public schools hire only teachers possessing state-award- ed credentials,' and all prescribe specific training and tests as 20. See infra notes 447-64 and accompanying text. 21. See infra notes 465-74 and accompanying text. 22. See EDMUND REUTI'ER, JR., THE LAW OF PUBLIC EDUCATION 437 (3d ed. 1985). This requirement is explicit in state education statutes. See, eg., ALA. CODE § 16-23-1 (1995); CAL. EDUC. CODE §§ 44065, 44261, 44830(a), 44866 (West 1993); id. § 44265.5 (West Supp. 1996); CONN. GEN. STAT. ANN. § 10-145 (West 1986 & Supp. 1995); ILL.