Professor James Dwyer (Wm & Mary) has a new book out, called "The Relationship Rights of Children." According to Cambridge Press, the book:
presents the first sustained theoretical analysis of what rights children should possess in connection with state decision making about their personal relationships, including legislative and judicial decisions in the areas of paternity, adoption, custody and visitation, termination of parental rights, and grandparent visitation. It examines the nature and normative foundation of adults’ rights in connection with relationships among themselves and then assesses the extent to which the moral principles underlying adults’ rights apply also to children. It concludes that the law should ascribe to children rights equivalent (though not identical) to those adults enjoy, and this would require substantial changes in the way the legal system treats children, including a reformation of the rules for establishing legal parent–child relationships at birth and of the rules for deciding whether to end a parent–child relationship.
From the sound of it, this book continues and develops arguments that Professor Dwyer has made elsewhere, including in an earlier book, "Religious Schools v. Children’s Rights," where he contended (among other things) that many religious schools damage, and violate the rights of, children by imposing upon them certain religious beliefs and religiously grounded constraints on their development and critically examined the idea (see, e.g., Pierce v. Society of Sisters) that, in a free society, parents have the right and duty to supervise and control the education and upbringing of their children.
I’ve tried elsewhere (for example, in "Taking Pierce Seriously: The Family, Religious Education, and Harm to Children") to engage, and indicate my disagreements with, Professor Dwyer’s approach and with some of his claims. It strikes me, though – and this touches on matters raised in Brooks' post from a few days ago, and perhaps also to Dan, Ethan, and Jennifer's "Family Ties" paper – that a parents’ relationships with their children are morally and otherwise prior to the obligations and powers of the state, and that we should not regard the state so much as assigning rights to parents or as constructing the parent-child and other family relationships, but instead as standing outside those relationships, authorized -- of course -- to intrude in order to prevent harm (properly understood) to vulnerable persons. (I recommend Steve Gilles' article, from a decade ago, "On Educating Children: A Parentalist Manifesto." And, of course, our own Michael Scaperlanda's review of Dwyer.). In any event, and notwithstanding my very strong disagreements, I have found Dwyer’s work challenging and instructive.
The New York Court of Appeals, the state's highest court, has rejected a state constitutional claim for same-sex marriage. I haven't read the whole decision yet, but it appears to be decided under rational-basis review, rejecting the arguments that the Massachusetts Supreme Judicial Court made in finding opposite-sex-only marriage irrational. As the New York Times reports:
The decision called the idea of same-sex marriage "a relatively new one" and said that for most of history, society has conceived of marriage exclusively as a bond between a man and a woman. "A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted," the decision stated.
"There are at least two grounds that rationally support the limitation on marriage that the legislature has enacted," the court said, "both of which are derived from the undisputed assumption that marriage is important to the welfare of children."
First, the court said, marriage could be preserved as an "inducement" to heterosexual couples to remain in stable, long-term, and child-bearing relationships. Second, lawmakers could rationally conclude that "it is better, other things being equal, for children to grow up with both a mother and the father."
Although there are arguments for same-sex marriage as a matter of policy, this decision looks like it reflects proper judicial humility and restraint in refusing to tar opposite-sex-only marriage with the labels of irrationality or bigotry.
Tom
Wednesday, July 5, 2006
I believe that legislators can appropriately
respond to the views of majorities and social movements (or not, I do not
believe legislators should be rubber stamps) whether or not those views are
religiously based. As I have said, however, I am opposed to religious whereas
clauses. I am also opposed to government trying to express what it considers to
be the religious sentiments of majorities.
“In God We Trust” is a good example
of the latter. In expressing the sentiments of the majority, it suggests that
Buddhists, Hindus, atheists, and agnostics are not part of the “We” in our
political community. Is it part of Christianity not to respect other citizens
because of beliefs with which we disagree? And just what has been gained for
religion? What is equally deplorable is that the motto on our currency would be
defended in Court on the ground that it is not religious, combining disrespect
with hypocrisy. (I am not, however, arguing that the motto is
unconstitutional).
In addition, to the problems I have
previously mentioned of creating opportunities for corrupt and cynical
politicians, religious whereas clauses would inevitably support some religions
over others. To be sure, legislation often does this. But there is a world of
difference in social meaning in making it explicit. Finally, I entirely agree
with Tom that a line between the religious and the secular can be drawn. The
religion clauses would be meaningless if no line were drawn.
Steve
Tuesday, July 4, 2006
In response to Rick and Steve ... I think that the requirement of "secular purpose" does serve a role in keeping government to its proper sphere of this-worldly matters -- an orientation that is important to both religious freedom (assigning religious matters largely to an autonomous religious sphere) and political freedom (reinforcing limited government). But if the requirement is too severe, it turns the useful concept of this-wordly-oriented government into the bad concept of a secularized government that must turn a blind eye to the religious insights that are relevant to this-worldly matters (and that, as Rick reminds us, the democratic majority believes are relevant). Such a government consigns religion to the private sphere alone, especially as the government grows in size and occupies more of public life. That's my worry about Steve's nearly absolute rule against government expression of religious propositions.
To me, the main distinction that's relevant here concerns not the rationale(s) for government action, but the nature of the action. If the government is acting within its ordinary sphere of authority -- making rules of justice and policy concerning this-worldly matters like economics, criminal law, health and social welfare, foreign affairs, etc. -- then it should be able to rely on religious rationales pretty much like other rationales. Even here, I think it helpful to demand that government articulate some secular rationale for its action; this helps keep government oriented toward the sphere of this-worldly matters. (And in response to Rick, I think that we can make a distinction between rationales that explicitly rest on ultimate or religious claims and those that stop short of doing so -- even if the latter might logically have to rest ultimately on premises about ultimate matters. Pretty much any distinction between the civil and religious spheres, from Augustine to Canossa to the First Amendment, rests on our ability to make some such distinction however imperfect.) But for the reasons I gave before, this is not and should not be much of a barrier; there is virtually always a secular rationale accompanying the religious ones. I think, for example, that the Court was off base in Epperson v. Arkansas when it claimed there was no rationale for opposition to evolution other than Biblical literalism.
By contrast, if the government is acting within the explicitly religious sphere -- prayers, religious ceremonies, religious displays -- then normatively I think it is stepping beyond, or to the edges of, its proper sphere and I would like to see it more constrained. Thus I have a lot more normative sympathy for the civil rights law that contains a "whereas" clause referring to God creating humans equal than I do for the official prayer or creche display.
Tom
