The Religious Rights of Children

The law protects children outside the family much as it protects adults. In addition, children, have special rights appropriate to their age: the state forbids their neglect and guarantees them education, medical care, and the like. The crucial right that society denies to children is that of autonomy—the right to decide for oneself. The exceptions to this are few.

Normally, the adult is sovereign and, absent abuse or neglect, that adult is usually the parent. Society makes the parent into legislature, court, and sheriff for the child. Parents set the rules and may use reasonable coercion to enforce them. The case of religious behavior is no exception. As Justice Douglas complained in the Amish education cases, the religious freedoms recognized by the Supreme Court have been those of adults. No child has yet invoked the free exercise clause to challenge a parental decision to require or forbid specific religious activity.

Nonetheless, this autocratic rule can properly be understood as a regime of children’s rights, including religious liberty. Indeed, this adult regime constitutes an entitlement unique to children—the right to a parental sovereign. It is aggressively paradoxical in nature; for it is a “right” to be dominated by another.

This assertion, however, implies no contradiction, because adult dominion is inevitable. Children are not born with the capacity for authentic autonomy. In their early teens some acquire a maturity that might allow self-determination. Even for the precocious, however, the requirements of the adult world—physical, intellectual, economic—make autonomy an unrealistic ideal.

The practical question is which adult should define the good life—the bureaucrat, the teacher, or the parent? Someone big will decide whether tiny Alice goes to work, to bed, or to Sunday School.

Radical liberationists reject this premise, insisting that children could be self-determining; it is precisely for want of autonomy that they are vulnerable. Yet what use can a nine-year-old make of a freedom to quit school, to take a job, to “divorce” her parents and live an independent life? I will go this far with the kiddie libbers: the liberty of children is worth protecting. But this protection will not come by allowing the child to dump the parents. Just how to secure optimal self-determination—and just how this might affect religious liberty—are difficult questions.

The child has an interest in exercising personal judgment and control in particular matters, and these multiply over time. The specific opportunities come to the child in the form of licenses granted by some adult. Parents or the state select those matters about which the child may decide. Today a girl is given the option to play, read, or watch television; she may take the car, but only to the game; and, if she goes, she must be home by 10:30 p.m. These “petty liberties” are limited and revocable.

This tempered but authentic self-determination is a thoroughly Christian notion. Children become moral beings from the age of reason. And, no matter which adult sovereign may dominate daily life, in the crucial matter of conscience the rational child remains a truly free agent. Though from inexperience, or adult misinformation, the child may mistake the objective good in a given situation, he remains responsible to look for correct answers and to pursue them. This obligation is identical to that of the adult, for all of us are wholly capable of seeking the authentic good. It is by this diligent quest that moral self-perfection is achieved.

Every rational agent, of every age, is a full-fledged participant in the economy of salvation. Christians express this idea in different ways, but recognition of the adult-like responsibility of the child is at least as old as St. Augustine. Any theory of childhood that would diminish moral responsibility would be problematic to most Christians.

This premise of practical accountability justifies widening the zones of petty liberty as the child becomes more competent. To be sure, limited self-determination regarding sports, hours, diet, and the like may not directly raise issues of conscience, the exercise of personal freedom, even in trivial matters, inevitably raises a moral challenge. But to inject a child into moral conflict beyond his grasp will seldom advance his general capacity for the social exercise of liberty. The key is to subordinate the child to that adult who will select and ration petty liberties in a manner that best nourishes the capacity of this child for moral autonomy. What sort of person is best equipped to regulate this mix of freedom and dominion?

Three general criteria help to identify the adult who decides for the child—knowledge, caring, and accountability. Adult responsibility for children requires both personal knowledge of this child and professional knowledge of children as a class. Ordinarily these two forms of insight are held by different adults. In general, the parental form of knowledge best equips the adults to choose the appropriate course of action. Professional opinion is important, but it is the adult with direct empathic insight who—by uniting both forms of knowledge in himself—becomes the best person to choose. Parents assimilate the opinions of others and best select among the possibilities they identify; drawing upon professional wisdom for their own purposes. Parental insight by contrast, is not easily transferable to the professional. The parent, like the client of the lawyer or architect, may be in a weaker position originally to identify the options—but in a superior position to decide among those given. Professionals are more helpful as servants than as masters.

“Caring” is the concern of the adult for this child as distinguished from children as a class. Caring improves decisions by keeping the adult’s attention focused over a period of time. Caring flourishes in permanent and intimate relations, but professionals cannot afford such a continuing relation with each client, nor would it be appropriate.

Though professionals who serve children are marginally affected for good or for ill by the fates of their clients, making the right decision is most important to the person who must live with the child. Thus parents are also the most accountable.

The parent best satisfies these three criteria in the vast run of cases, at least with respect to the child’s liberty. The social, economic, and moral interests of parents require that the child grow toward autonomy; and most parents will strive to dispense liberty accordingly.

Parental sovereignty is the principal generator of civic virtue. Children best learn the importance of commutative and distributive justice in an environment in which adults whom they know and trust are in command. In a pluralistic society, there can be no collective vision of the good life, and hence no clear moral teaching function for government. Outside math and the physical sciences, the course of study in government schools will and must be confined to a narrow set of political ideas. The really interesting ideas about human happiness must be politically censored to avoid offense. The resulting message is that the good citizen can do whatever he or she pleases “so long as no one gets hurt”—the object of the good life is to invent one’s own self-satisfying morality.

This vacuous narcissism may be politically unavoidable, but it makes no contribution to the common good. At least in a pluralistic society, public values are best secured by a vigorous market in contrasting moral ideas taught in free institutions by adults who believe in them. Children who conclude that morality is a matter of private taste are the least likely to embrace civic responsibility. It is the child imbued with strong ideas who will best contribute to social dialogue about the common good.

The reverse side of this truth is that the adult authorities that produce specific commitments simultaneously nourish the individual child’s autonomy. For it is only the belief in a real order of value that can liberate us from moral impotence. And here we confirm the harmony of parental sovereignty with the Christian understanding of moral liberty. Western religion has for centuries accepted the rule of thumb that things run better when authority is lodged in the social unit nearest to the problem. The state needs competition and direction from labor unions, fraternal societies, trade associations, churches, and voluntary groups. But the quintessential locus of decision, the only one besides the state that is armed with legal dominion over the person, has been the family. Building upon Hebrew and Roman foundations, Christianity gradually came to prize and to nourish parental authority. It rejected categorically the systematically regimented childhood offered in Plato’s Republic. The family had become the paradigm of subsidiarity long before the word itself was coined.

In promoting parental sovereignty, Christianity acted from its own creedal imperatives, including a theology that harmonizes authentic liberty with objective morality. It was a theology in which personal decision contributes to our justification. Fifteen hundred years of debate have convinced most Christians that God made human consent a necessary, if insufficient, element of personal salvation. The new Catechism puts it that “Every man who . . . seeks the truth and does the will of God in accordance with his understanding of it, can be saved.”

In that case, it is not only the pagans who are moral peers of the believer. The child’s prospects too are identical; for anyone who reaches the threshold of rationality fully recognizes this personal responsibility to seek and attempt the authentic good. And, if self-perfection is achieved, in part, by this honest quest for the correct answers, here is a vocation for which children at the age of reason are as fully equipped as any moral philosopher. St. Augustine got that part right; when he stole his neighbor’s pears for the sake of evil, he freely rejected the divine invitation. The capacity to choose between self-perfection and self-corruption is democratically distributed. Children receive an adult share.

Personal salvation thus turns not upon getting the correct answers about that objective good but upon the effort to do so. Our actual choices can have different effects in the subjective and external realms. The recent papal encyclical Veritatis splendor allows this conclusion: Good intention and invincible ignorance cannot make an evil act good—but they can make the agent good.

The capacity for moral self-perfection thus is invulnerable to circumstance, but this does not justify social indifference to the form of the adult regime. The child is entitled to systematic subordination to that personal sovereignty which in the long run is most likely to yield a true picture of the objective moral order. For to will such subjection is the condition of his own perfection; absent good reason, it would be unjust to deny the child this arrangement. Hence society must seek and secure it—whatever it is.

Not all families agree about the details of the authentic good, nor all children with their parents. Soon enough the child perceives that the parent is fallible. In due course some reject the parental code either in detail or altogether—temporarily or forever.

Still, this smorgasbord of opinion about right behavior is merely inevitable; what is contingent but worth guaranteeing is the child’s experience of a sovereign who insists that our choices have moral significance and are worth arguing about. And there is no parent however jaded, who tells her own child that he is entitled to invent the rules.

What no child can escape while remaining within the jurisdiction of the family is the direct and constant experience of an adult who believes that there is a good to be grasped and who demonstrates this belief even in the course of conflict with the child. Simply by insisting upon his own vision of the good, the parent furnishes the child with the day-to-day reminder of the basic human duty to look outside our own selves. It is in this inescapable encounter that the child constantly sees justice as an issue and experiences the personal imperative to seek its content. In accepting or rejecting that basic human vocation the child moves toward or away from perfection.

So, in the end, what qualifies as a child’s religious right? At least for Christians I think it would consist in the social guarantee of membership in a family or family-like environment including adults to whom the child is both close and subordinate. This very subordination is the child’s best hope of experiencing the real, if petty, liberties that come coupled with the affirmation of an authentic good. Both liberty and obligation will thus be presented to the child in personal decisions made by an adult sovereign who has a profound interest in this particular child’s ultimate moral autonomy.

Finally, I want to clarify the extent to which the adult sovereignty represents a practical risk of an unjust moral and religious subjugation of the child. Justice Douglas is still correct. Society has not yet recognized for the child any state- protected religious autonomy. Thus, the child who dissents from his family’s religious convictions is, indeed, at risk of having his conscience violated. I see no clean escape from this, but at least three imperfect responses make this outcome tolerable.

First, the child’s obligation to obey minimizes the range of moral and religious conflict. I concede that the duty is conditional. Plainly, as a free moral agent, a child is bound to apply his own reason to moral issues and to reach a personal decision; the duty to obey thus does not license servile assent to what the child perceives as wrongful acts ordered by adults. A parental command to despise your neighbor ought to be resisted by any child who recognizes this as evil. Hence, real conflict is possible. On the other hand, while embracing his primary obligation as a moral seeker, a child can be honestly unclear about the objective good in a given case. In that event he should give the parental command the benefit of a strong presumption. So long as there is bona fide doubt, the conscience of the obedient child is clear. Hence cases of authentic moral conflict are few.

The second imperfect justification for overriding the moral or religious dissent of children is the relative flexibility of the family, compared to the courts, in accommodating conflicting views. A child may feel a religious imperative to attend a racially integrated school; if the parent prefers the more convenient neighborhood school something has to give. But a clean-cut rejection of conscience may be avoidable. For example, some alternative experience of racial diversity may substantially satisfy the child’s concern. The family is not a civil court which must utter a simple yes or no. It can temporize, adjust, and compromise; children sometimes change their minds; so do parents. We learn from each other by joining together even when we feel momentarily and mutually oppressed.

This suggests a third and related justification. In a sys-tem of rights that makes the parent hostage to the religious preferences of children, the identity of the family is deeply compromised. It is one thing for the state to raise barriers against physical abuse and to protect the child when the family is already moribund. It would be quite another to strip ordinary parents of their authority to make the family into a representation of their own values. The family is for most of us the primary medium of moral expression. The parent experiences the child both as an audience and as a message to the world. In a faint echo of the divine, children are the most important Word most of us will utter. I am willing to preserve that medium for adults at the cost of an occasional and temporary injustice to a particular child. For most children the family—autocratic and even arbitrary—remains on balance the best hope of authentic religious liberty.

Author

  • John E. Coons

    John E. Coons is the Robert L. Bridges Professor of Law, Emeritus, at the University of California, Berkeley.

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