Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, October 27, 2016

Dwyer on religious schools' "incursions on religious liberty" of children

For many years, Prof. James Dwyer has been forceful, harsh critic of parents' rights and religious schooling.  (See, for example, his book, Religious Schools v. Children's Rights, here, and Vouchers Within Reason, the latter of which was, in my view, powerfully criticized by our own Michael Scaperlanda, here.  I also engaged, and rejected, some of Dwyer's claims in this paper.)  In this new paper, "Religious Schooling and Homeschooling Before and After Hobby Lobby" (here), Dwyer contends that:

The most serious incursions on religious liberty in America today are being inflicted on children by parents and private school operators through power the State has given them. . . .

Even with RFRA's version of strict scrutiny post-Hobby Lobby, states could nonetheless regulate private and home schooling. The Article concludes that state inaction will continue as a result of a troubling pervasive indifference—stemming from societal attitudes and fundamental misconceptions about childrearing—toward children subject to these types of schooling.

Certainly, I hope Dwyer is right in his prediction that "state inaction" -- that is, what I would call "state respect for religious freedom and the fundamental moral and legal right of parents to, generally speaking, direct and control the education and upbringing of their children -- will continue.  The notion that children's religious liberty is being violated by "parents and private school operators through power that the State has given them" is, to me, entirely unappealing and, indeed, repugnant.  (Although I should underscore that, in my experience, Prof. Dwyer's commitment to the well-being of children as he understands it is deep and sincere.)  I highlight the piece here, though, because I think its publication is another "data point", among an increasing number, that provides worrisome support for the concern that, in the coming years, attacks on religious education, parents' rights, and Pierce will continue and escalate.  (Recently, prominent academic and commentator Erwin Chemerinsky called for Pierce to be overruled.)  One way this will happen is through the application of wide-reaching antidiscrimination regulations and curricular requirements that are at odds with the religious mission of many religious schools (and with the religious-education and formation aims of many parents).  These regulations and requirements will be framed by their supporters as important for the socialization and development of children, and parents' disagreement with them will be characterized as a kind of neglect.  Stay tuned, and wary.  


Garnett, Rick | Permalink