CALIFORNIA LAW REVIEW, VOL. 82 NO. 6 (December 1994): pages 1371-1447.



         Parents Religion and Children's Welfare:

         Debunking the Doctrine of Parents' Rights



                      James G. Dwyer



   The scope. weight, and assignment of parental rights have

been the focus of much debate among legal commentators.

These commentators generally have assumed that parents

should have some rights in connection with the raising of

their children.  Rarely have commentators offered

justifications for attributing rights to persons as parents,

and when they have done so they have failed to subject those

justifications to close scrutiny.  This article takes the

novel approach of challenging parental rights in their

entirety.  The author explores the fundamental questions of

what it means to say that individuals have rights as

parents, and whether it is legitimate to to do so.  In

defining existing parental rights, the Article focuses on

parental rights in religious contexts, because it is in this

arena that the notion of parental rights takes its strongest

form.  The author contrasts parental rights with other

individual rights that receive protection under our legal

system.  He concludes that the claim that parents should

have child-rearing rights is inconsistent with certain

principles underlying all other individual rights recognized

in our society.  After demonstrating this theoretical

shortcoming of the notion of parental rights, the Article

challenges the soundness of the commonly advanced

justifications of parenting rights.  The author concludes

that all the proffered justifications for parents' rights

are unsound and recommends a substantial revision of the law

governing child-rearing.  The author proposes that

children's rights rather than parents' rights serve as the

basis for protecting the legal interests of children.  The

law should confer on parents only a child-rearing privilege,

limited to actions that do not harm the child's interests.

Such a privilege, coupled with a broader set of children's

rights, satifies parents legitimate interests in

child-rearing while providing children with a more

appropriate level of protection than they receive under the

current legal approach.

-----------------------



[CIRP note.  This lengthy article will not be transcribed

into electronic form.  CIRP refers those who care to examine

it to the printed version.  CIRP presents Dr. Dwyer's

conclusion below.]





                        Conclusion



   Consideration of judicial interpretations of rights in

numerous contexts has revealed that the notion of parental

rights is inconsistent with well-established legal

principles.  Rights protect only a right-holder's own person

and property.  No one should possess a right to control the

life of another person no matter what reasons, religious or

otherwise, he might have for wanting to do so.  Children are

persons, intimately bound up with but nevertheless distinct

from their parents.  Supposed justification for parents'

rights based on the interest of children, on the interests

of parents, or on the interests of society simply do not

withstand scrutiny.



   These findings compel the conclusion that parental

child-rearing rights are illegitimate.  A better regime

would simply grant parents a legal privilege to care for and

make decisions on behalf of their children in ways that are

not contrary to the children's temporal interests.  Children

themselves should possess whatever rights are necessary to

protect their fundamental interest in an intimate,

continuous relationship with their parents.  This

includes the right to be insulated from any state

interference that is not in the children's interests.



   Courts should acknowledge the illegitimacy of the

parents' rights doctrine and decline to recognize claims of

parental rights in the future.  The evolution of our social

attitudes toward, and legal treatment of, children in recent

decades would afford the Supreme Court an adequate rationale

for departing from the rule of stare decisis [302] and for

overruling Yoder and Pierce to abolish parental

child-rearing rights.  Subsequently, courts would decide

cases involving disputes between parents and the State over

child-rearing practices based on the interests and rights of

the children involved.  This approach would encourage a more

appropriate social and legal understanding of parenthood as

a privilege conditioned on a parent's willingness to operate

within limits defined by temporal well-being of her

children.  It would also foster recognition that children

are distinct persons deserving of respect equal to that

accorded adults, and not merely means to the fulfillment of

parents' life-purposes.



________________________________________________________

 302.  See e. g. Planned Parenthood v. Casey 112 S. Ct.

       2791, 2809 (1992) (plurality opinion of O'Connor,

       Kennedy, Soter, JJ. (noting that one factor to be

       considered in departing from precedent is whether

       facts have "come to be seen so differently, as to

       have robbed the old rule of significant application

       of justification")



CALIFORNIA LAW REVIEW, VOL. 82 NO. 6 (December 1994): pages

1371-1447.

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