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Taking Pierce Seriously: The Family, Religious Education, and Harm to Children

By Richard W. Garnett

Abstract

Many States exempt religious parents from prosecution, or limit their exposure to criminal liability, when their failure to seek medical care for their sick or injured children is motivated by religious belief. This paper explores the question what, if anything, the debate about these exemptions says about the state\u27s authority to override parents\u27 decisions about education, particularly religious education. If we accept, for example, that the state may in some cases require medical treatment for a child, over her parents\u27 objections, to avoid serious injury or death, should it follow that it may regulate, or even forbid, a child\u27s religious training or religious-school education to prevent an analogous, though perhaps less tangible, harm? The Supreme Court famously proclaimed, in Pierce v. Society of Sisters, that parents enjoy a fundamental right to direct and control the education of their children, but do we really accept, or even understand, the premises, foundations, and implications of this pronouncement? Recent calls for a thicker liberalism and for the harnessing of education to create truly liberal citizens make it all the more important that we take Pierce seriously. And if we do, it is suggested that state functionaries, guided and restrained by a proper humility about their authority and competence, should override parents\u27 educational decisions only to prevent harm, carefully defined, to a child. The problem is, how do we define harm. This paper proposes that the content of religious instruction, traditions, or beliefs should not be viewed as harmful in the sense necessary to justify government second-guessing or supervention of parents\u27 decisions about such instruction. In a free society, one that values religious freedom, the state should not entertain, let alone enforce, a belief that children would be better off without religious faith

Topics: parents\u27 rights, religious education, Pierce, Family Law, Religion Law
Publisher: NDLScholarship
Year: 2000
OAI identifier: oai:scholarship.law.nd.edu:law_faculty_scholarship-1214
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