The Children We Abandon: Religious Exemptions to Child Welfare and Education Law as Denials of Equal Protection to Children of Religious Objectors
159 Pages Posted: 25 Jun 2012
Date Written: 1996
The story of children who die because their parents, in observance of their own religious principles, withhold conventional medical treatment from them is a familiar one. In this Article, James G. Dwyer shows that the phenomenon of parents denying secular benefits to their children for religious reasons goes far beyond these few highly publicized cases, extending into the realm of education as well as medical care. Moreover, Dr. Dwyer shows that the federal and state governments endorse this practice by statutorily exempting 'religious objector' parents from otherwise generally applicable compulsory child care and education laws. He argues that courts addressing such exemptions, in emphasizing the parents' free exercise rights, have failed to observe that they infringe upon the children's equal protection rights. These children, solely because of their parents' beliefs, do not receive the same legal protections from harm (for instance, inferior health care and an inferior education) that other groups of children receive. After describing in detail the types of discrimination that religious exemptions to child welfare laws inflict upon these children, Dr. Dwyer considers how each element of an equal protection analysis would apply to these exemptions. He concludes ultimately that very few, if any, of the exemptions should survive an equal protection challenge-a conclusion with radical practical implications, particularly with regard to the educational system in this country. Finally, the author discusses the practical impediments to bringing equal protection claims, especially the fact that neither the parents nor the children themselves are likely to raise or support them, and proposes methods by which courts might nevertheless hear these claims.
Keywords: Religious schools, school regulation, spiritual treatment, medical neglect, free exercise, equal protection
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