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Wisconsin v. Yoder: Respecting Children’s Rights and Why Yoder Would Soon Be Overturned

46 Pages Posted: 11 Jul 2010 Last revised: 16 Jun 2011

David Gan-wing Cheng

Walter F. George School of Law

Date Written: July 7, 2010


Parents want what is best for their child. The preceding statement is practically a truism, subject to rare exceptions. Parents almost always strive to act in the child’s best interest as they interpret it to be. At times society and the parents have differing interpretations as to what is in the child’s best interests. However, an absolute answer to the question what is best for the child or what is in the child’s best interests does not exist. The answer is always qualified by the baseline one uses to evaluate the question. The baseline may for example be spiritual salvation, intellectual growth, social development, fitness to compete for economic rewards in the future, or the child’s current gratification. Even after agreeing on a particular baseline, whether a particular mean is the best or even proper for attaining the desired end is debatable. However society usually defers to the judgment of parents on these matters because it is the parents’ natural duty to raise the child.

Indeed everyone generally recognizes that parents have a fundamental right to direct the upbringing of their children. Although society defers to parents on many aspects when it comes to the upbringing of their children, it will not do so if the parents’ means in achieving the ends of a particular baseline conflicts with the ends of another baseline deemed to be compelling by society. For example, if the parents’ religion requires them to mutilate the child in order for the child to achieve spiritual salvation, this would harm the child and would be seen as unacceptable by society. The parents who see spiritual salvation as being more important than worldly harm are genuinely acting in the child’s best interests as they see it. However this view is in tension with that of society which sees the child’s physical well-being as being more compelling. According to the US Supreme Court, although parents may have a fundamental right to direct the upbringing of their children and an additional Free Exercise of Religion right (hereinafter "Free Exercise right"), these rights must give way to the child’s right to be free from harm where they conflict.

In this article, I put two traditional rights: the Free Exercise right and the right to direct the upbringing of one’s child, up against a potential right which the Court has never considered: the child’s "right to an open future," first proposed by the philosopher Joel Feinberg. Generally, the child’s right to an open future is violated if the parent acts in any manner, including the exercise of their own fundamental rights, which irreversibly closes off certain key options for the child when he is an adult. This battle of rights will be discussed by examining Wisconsin v. Yoder, and the Old Order Amish whose religious tenets forbid Amish children from attending high school.

Keywords: David Gan-wing Cheng, Children's rights, Wisconsin v. Yoder, Joel Feinberg, Freedom of Religion

Suggested Citation

Cheng, David Gan-wing, Wisconsin v. Yoder: Respecting Children’s Rights and Why Yoder Would Soon Be Overturned (July 7, 2010). Available at SSRN: or

David Gan-wing Cheng (Contact Author)

Walter F. George School of Law ( email )

1021 Georgia Ave
Macon, GA 31207-0001
United States
334-451-4346 (Phone)

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