Religious Healing Exemptions and the Jurisprudential Gap Between Substantive Due Process and Free Exercise Rights

8 U.C. Irvine L. Rev. 633 (2018)

38 Pages Posted: 15 Oct 2019

See all articles by Shaakirrah Sanders

Shaakirrah Sanders

University of Idaho - College of Law

Date Written: November 2, 2018

Abstract

Religious healing parents have vexed state courts for almost a century. Religious healing is the belief that “prayer” or “spiritual means,” rather than modern medicine, can cure individuals. Adults and emancipated minors have the right to refuse medical treatment. Some states go further and grant religious healing parents a statutory exemption against criminal and civil actions for child endangerment, neglect, negligence, manslaughter, and even homicide. This Article identifies these types of exemptions as an issue of religious childrearing.

Religious healing exemptions demonstrate the difficulty delineating the line between childrearing rights of parents and the state's duty to protect children. Professor James Dwyer argues that exemptions undermine a state's legitimate interest in the wellbeing of its most vulnerable citizens--minor children. Those who, like Dwyer, find exemptions untenable also have difficulty understanding why a state would allow a parent or guardian to refuse lifesaving medical treatment for a child in need. Proponents of religious healing argue that exemptions do nothing more than accommodate free exercise and substantive due process rights to the care, custody, and control of minor children and dependents. Those who support this view of exemptions may also have difficulty understanding how or why a state could have authority to intrude on the privacy rights of parents or guardians.

This Article uniquely contributes to the religious healing debate by bringing together substantive due process and the Free Exercise Clause jurisprudence. Part I of this Article discusses the nature and scope of statutory exemptions in U.S. States. Parts II and III of this Article explore exemptions from the perspective of substantive due process and the Free Exercise Clause, respectively. Parts II and III also examine the impact of exemptions on those left in the gap: children, nonconsenting parents, and the state itself. Regardless of intent, exemptions can trump both a nonconsenting parent's right to childrearing and a child's independent right to life. Exemptions may also expose inconsistencies in the exercise of government intrusion on constitutionally recognized fundamental rights.

Keywords: Religion, Faith Healing, Religious Healing, First Amendment, Free Exercise Clause, Substantive Due Process, Religious Childrearing

Suggested Citation

Sanders, Shaakirrah, Religious Healing Exemptions and the Jurisprudential Gap Between Substantive Due Process and Free Exercise Rights (November 2, 2018). 8 U.C. Irvine L. Rev. 633 (2018). Available at SSRN: https://ssrn.com/abstract=3277651

Shaakirrah Sanders (Contact Author)

University of Idaho - College of Law ( email )

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