Parents' Religion and Children's Welfare: Debunking the Doctrine of Parents' Rights

78 Pages Posted: 30 Oct 2012  

James G. Dwyer

William & Mary Law School

Date Written: December 1, 1994

Abstract

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 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 on 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 parenting rights, the Article challenges the soundness of the commonly advanced justifications of parental rights. The author concludes that all of 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 a 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, satisfies parents' legitimate interests in child-rearing while providing children with a more appropriate level of protection than they receive under the current legal approach.

Keywords: parents' rights, child rearing, religion, free exercise, First Amendment, private schools, medical neglect, school regulation, education

Suggested Citation

Dwyer, James Gerard, Parents' Religion and Children's Welfare: Debunking the Doctrine of Parents' Rights (December 1, 1994). California Law Review, Vol. 82, No. 6, 1994; William & Mary Law School Research Paper No. 09-228. Available at SSRN: https://ssrn.com/abstract=2168903

James Gerard Dwyer (Contact Author)

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

HOME PAGE: http://law2.wm.edu/faculty/bios/fulltime/dwyer-648.php

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