Who Owns the Soul of the Child?: An Essay on Religious Parenting Rights and the Enfranchisement of the Child

At common law, and (for most of the nation\u27s history) under state statutory regimes, the authority of the parent to direct the child\u27s upbringing was a matter of duty, not right, and chief among parental obligations was the duty to provide the child with a suitable education. It has long been a legal commonplace that at common law the parent had a sacred right to the custody of his or her child, that the parent\u27s right to control the upbringing of the child was almost absolute. But this reading of the law is sorely anachronistic, less history than advocacy on behalf of parental rights. What is deeply rooted in our nation\u27s history—and the custody case law of the nineteenth century and early twentieth century makes this abundantly clear—is the notion that the state only entrusts the parent with educational custody of the child, and does so only as long as the parent meets his or her duty to serve the best interests of the child. Indeed, it was the child who had an absolute right: the right to proper parental care, including the right to an education that would prepare the child for eventual enfranchisement from what Blackstone called the empire of the father. If by fundamental we designate rights with a deep historical pedigree, the right to parent free of state interference cannot be numbered among them. The Supreme Court\u27s seminal cases establishing a parent\u27s right to educate. Meyer and Pierce have been made to state broad claims about the fundamental nature of parental rights, but, in fact, they stand for a much more modest proposition: that the state does not have exclusive authority over the child\u27s education; and, more particularly, that the state cannot prohibit parents from teaching their children subject matter outside the scope of the state-mandated curriculum. Rhetoric aside, Meyer and Pierce are hardly a charter of fundamental parental rights. But that is what the Supreme Court made of these cases in Wisconsin v. Yoder. The idiosyncratic facts of Yoder encouraged the Supreme Court to abandon well established law governing the right of religious parenting and to formulate a harm standard ill-adapted to the existential intricacies of family disputes. Courts should look with skepticism at any authority that, by restricting the spectrum of available knowledge, fails to prepare the child for obligations beyond those of familial obedience. While a full treatment of these cases lies outside the scope of the article, this part suggests that courts should look with skepticism at any educational program—whether the program is imposed by the parent or by the state—that, by restricting the spectrum of available knowledge, fails to prepare the child for obligations beyond those of familial obedience. If the courts were to apply the principle that children may not be denied exposure to the full measure of intellectual incitement that should be the heart (and soul) of every young person\u27s education, they would more consistently, and correctly, sort out the competing claims of parents and public school officials to make educational choices on behalf of the child. The work of preparing the child to make free and independent choices is entrusted to the parent, and it is a challenging and somber task, for it means allowing children (in fact, it means helping children) to leave their homes and leave behind the ways of their parents. Or, at least, it means giving children the choice to do so. It is little wonder, then, that we would want to transform this sacred trust into a sacred right, a right that effectively allows parents to shield their children from choice and its attendant responsibilities. But the law of parent-child relations protects children from this sort of protection, ensuring that children receive a truly public education. Physically and intellectually transporting the child across the boundaries of home and community, a public education can bring its students a much needed respite from the ideological solipsism of the enclosed family. Of course, public education comes at a cost. It disrupts the intramural transmission of values from parent to child. It threatens to dismantle a familiar world by introducing the child to multiple sources of authority—and to the possibility that a choice must be made among them. Indeed, the open world of the public school should challenge the transmission of any closed set of values. Unless children are to live under a perpetual childhood of prescription, they must be exposed to the dust and heat of the race—intellectually, morally, spiritually. A public education is the engine by which children are exposed to the great sphere that is their world and legacy. It is their means of escape from, or free commitment to, the social group in which they were born. It is their best guarantee of an open future. The Yoder standard fails to protect the child from harms routinely addressed in cases involving only secular matters. Judicial non-intervention amounts to little more than a way of not dealing with such cases—or, at least, of not dealing with such cases until it is too late for the child. To honor its fiduciary obligation to the child, the court must be able to consider any practice that could affect the general welfare of the child and to insist upon an appropriate form of civil discourse when religious views diverge. Where exposure to intolerance is not in the best interests of the child, the welfare of the child requires that those responsible for their upbringing observe, or be made to observe, the boundaries of socially appropriate behavior. The duty to respect those with whom one disagrees is a civic obligation for which parents must prepare their children. It is the necessary concomitant of the parenting right. Religious belief should not absolve parents of this obligation, and disparagement born of religious conviction should not get a constitutional pass from judicial scrutiny

The univalence axiom for elegant Reedy presheaves

We show that Voevodsky's univalence axiom for intensional type theory is valid in categories of simplicial presheaves on elegant Reedy categories. In addition to diagrams on inverse categories, as considered in previous work of the author, this includes bisimplicial sets and $\Theta_n$-spaces. This has potential applications to the study of homotopical models for higher categories.Comment: 25 pages; v2: final version, to appear in HH

Lifting of nilpotent contractions

It is proved that that every nilpotent contraction in a quotient C*-algebra can be lifted to a nilpotent contraction. As a consequence we get that the universal C*-algebra generated by a nilpotent contraction is projective. This answers the question posed by T. Loring

Making Sense of the Establishment Clause

While the jurisprudence of the Establishment Clause may not make much sense (common or otherwise) as a substantive legal matter, it does make sense as a series of jurisprudential maneuvers by which the Court has sought to make more room for religion in civic life. In fact, there is a method to the “massive jumble... of doctrines and rules” that forms the law of church-state relations. It is the method of a somewhat disorderly retreat from the Constitution’s foundational principle of disestablishment. The accommodations made by the Court to religious belief and conduct have allowed for discrimination against non-religion, edging the Court ever closer toward a non-preferentialist perspective..

The Siren Song of History: Originalism and the Religion Clauses

It is hard to foresee much happiness in the lot of those seeking the original meaning of the Religion Clauses. We may acknowledge the opacity of the historical record, the variety of viewpoints held by founders forgotten and non-forgotten, the humanness of the founders who did not always practice what they preached, even the basic indeterminancy of language; still, we are seduced by the siren song of interpretive certainty. But the search for greater clarity is not without its payoff. As the three books under review here illustrate, the more we look for answers in the historical record, the more we are likely to find ambiguity--and with each step we take away from the promised land of historical clarity, we move a step closer to the richer, if less certain, terrain of historical truth. This essay reviews the following works: The Forgotten Founders on Religion and Public Life. Edited by Daniel L. Dreisbach, Mark David Hall and Jeffrey H. Morrison. Foreword by Mark A. Noll. University of Notre Dame Press 2009. Pp. 316. ISBN: 0-268-02602-5; Church, State, and Original Intent. By Donald L. Drakeman. Cambridge University Press 2010. Pp. 371. ISBN: 0-521-11918-9; God and the Founders: Madison, Washington, and Jefferson. By Vincent Phillip Muñoz. Cambridge University Press 2009. Pp. 242. ISBN: 0-521-51515-7

Univalence for inverse EI diagrams

We construct a new model category presenting the homotopy theory of presheaves on "inverse EI $(\infty,1)$-categories", which contains universe objects that satisfy Voevodsky's univalence axiom. In addition to diagrams on ordinary inverse categories, as considered in previous work of the author, this includes a new model for equivariant algebraic topology with a compact Lie group of equivariance. Thus, it offers the potential for applications of homotopy type theory to equivariant homotopy theory.Comment: 30 pages. v2: updated references to Boavida, small fixes. v3: condensed, reorganized, and clarified exposition; final version to appear in HH