The trains are back on track—the same one

Over the past several months a new responsibility has garnered a great deal of my attention and daily efforts. However, I have done my best to remain alert to trends in society and the law that have some bearing on Catholic Legal Theory. Other contributors to MOJ have, needless to say, done well in pointing out various developments in law and society that bear in relevant ways on the core project of Mirror of Justice. I have let several opportunities to comment on some of these trends pass because my attention and energies had to be focused on other matters.

But, the time has come once again to offer some reflections on evolving conflicts between members of society and the state that emerge as a result of different understandings of human nature involving religious liberty and freedom of conscience. While I have offered my own commentary on these issues in past MOJ postings, I took the occasion last May to analogize these conflicts as trains traveling on the same track in opposite directions [HERE]. The trains are back on the same track and once again racing toward one another, this time in Lexington, Massachusetts. Yes, the place in which the shot heard round the world was fired.

The controversy, for the time being, is between the several families of Lexington and the public school system of that town. The families have objected to the school system’s mandate to teach, in a positive manner, about homosexuality and to the school system’s declaration that parents have no right to object and ask that their children be exempt from this instruction. If I recall correctly, back some decades ago when prayer at school events was the issue, the suggestion was previously made that objecting families could simply not attend the particular event. However, this eventually led to the Supreme Court’s decision in Lee v. Weisman (1992) in which prayer at a school event was a crucial issue. In the case involving the Lexington families, representatives of the school system have stated that the teaching in question is obligatory and that the only option is for the parents to withdraw their children from the public school system. Again, this theme of withdrawal from obligatory events was a theme briefly addressed in Lee v. Weisman. Unlike that case, however, where attendance at the graduation exercise where the non-sectarian prayer was to be offered was not obligatory to receive an education and graduate (daily prayers in school having been abolished earlier), attendance at school to receive an education and to graduate is obligatory.

It appears that much of the Lexington controversy emerged from the mandatory “diversity training” in which first and second graders read and listened to the story “King and King” and “Who’s in a Family”—two publications with very strong same-sex love stories. Representatives of the school system have argued that this diversity training is essential to a “legitimate state interest” that combats discrimination “on the basis of sexual orientation” and eliminates the perpetuation of stereotypes. These officials have also insisted that parents have no right to control the ideas that schools expose to their children once the children enroll in these public institutions.

Through their counsel, the parents involved in this case, Parker, et al. v. Town of Lexington, et al., No. 06-CV-10751-MLV, USDC, District of Massachusetts, have argued that they “have the right to direct the moral upbringing of their children.” Surely their claim can be substantiated on the relevant international legal right of parents to which the United States is obliged to follow since it is a party to the International Covenant on Civil and Political Rights. Article 18.4 of the Covenant specifies that, “The States Parties to the present Covenant undertake to have respect for the liberty of parents… to ensure the religious and moral education of their children in conformity with their own convictions.” The Covenant is based on the Universal Declaration of Human Rights which, in Article 26.3, specifies that parents “have a prior right to choose the kind of education that shall be given to their children.” As the travaux prèparatoires of the UDHR indicate, this provision came about to avoid and eliminate the attempt of the National Socialists in Germany to poison children’s minds through the unqualified state control of education. It would appear that the Lexington school system, by the position it has taken, is trying to do that which the Universal Declaration and the International Covenant on Civil and Political Rights forbid.

In the context of Catholic Legal Theory, we need to take stock of the fact that Pius XI in two of his encyclicals, Non Abbiamo Bisongno (1931) and Mit Brenneder Sorge (1937), expressed his concern about the totalitarian efforts of the state to control the educational process of children in Italy and Germany. For those of us interested in Catholic Legal Theory, we must be conscious of the concerns raised by Papa Ratti over seventy years ago. We might think that the day of the totalitarian state in which Pius XI lived is over. But, is it? The evidence from the Parker case might suggest otherwise.

In the coming weeks, I will be addressing some of these issues in more detail. On March 15, I shall be delivering a lecture at Boston College Law School entitled Regensburg and Beyond: Pope Benedict and Religious Liberty. I will also be delivering a paper, Conscience, Religious Liberty, and Totalitarian State at the conference on The American Experiment: Religious Freedom convened by the University of Portland from April 12-14.

In the meantime, the Parker case merits close attention as the trains once again head toward collision. And for those of us concerned about Catholic Legal Theory, religious liberty and the protection of conscience and parental rights, the work of our minds and the efforts of our prayers will surely be in order.    RJA sj