Parental Despotism in America: A French Perspective
Parental Despotism in America: A French Perspective - Daniel Gordon
Art Goldhammer is in Greece until June 21, and he asked me to be a
"guest blogger." Art also suggested that I write something comparing
French and American law.
The front page of the New York Times on June 14, 2007, caught my
attention with a picture of Nashala Hearn, an eleven-year-old girl
wearing a hijab, or Muslim headscarf. The Times was reporting on how
the Justice Department under the Bush administration is rushing to
defend religious rights and giving low priority to racial equality.
The Hearn case, which goes back to 2003-2004, happens to be one I have
studied in great depth. It was a relatively rare incident of an
American school telling a girl she should not wear a headscarf. The
school quickly changed its policy when it was sued by two parties: the
Rutherford Institute (a Christian civil rights organization) and the
Justice Department.
The Times is correct to observe that the Bush government is highly
protective of what the First Amendment refers to as the "free exercise
of religion." However, the trend actually goes back further. Consider
the 1997 Guidelines on Religious Freedom in the Federal Workplace
issued by President Clinton. These state explicitly that civil
servants are permitted to wear religious symbols on the job; they even
permit federal employees to proselytize in the workplace.
Another feature of the Hearn case that the Times overlooked is the
parent-child relationship. Among my research materials on the Hearn
case are documents showing that Nashala's parents refused to let her
communicate with school administrators, who wished to ask her if she
regarded herself as a Muslim and if she wanted to wear the scarf. The
school unsuccessfully tried to interpose itself between the parents
and the child. It's rare that schools try to do this when religion is
at issue. And American law doesn't give the state much of a legal
foundation for defending the rights of children against their parents.
Cases in which parents withhold medical treatment from their children
for religion reasons are an even more poignant illustration. In the
late 1990s, authorities in Oregon discovered the remains of dozens of
children in a cemetery where the Followers of Christ Church had buried
infants and youths who had been treated by "faith healing." Experts
determined that many of the children would have lived if they had
received simple medical treatments. An Oregon law stated: "It is an
affirmative defense to a charge of [criminal homicide by neglect or
maltreatment] that the child or dependent person was under care or
treatment solely by spiritual means pursuant to the religious beliefs
or practices of the child or person or the parent or guardian of the
child or person."
The language of this law suggests that the right belongs to both the
child and the parent. But what about a child who wants medical
treatment (to make it more interesting, suppose the child wants
medical treatment for specifically religious reasons, e.g., so he/she
can live to convert others to the faith) while the parents want no
treatment. The parents' wishes will still trump the child's--it only
takes a religious motive to exempt the parent from prosecution.
American law in general is designed to protect the right of parents to
make decisions about their children--it is not designed to protect the
children themselves.
In the famous Supreme Court case of Yoder v. Wisconsin (1972), the
Court ruled that the Amish do not have to send their children to
school. The case appeared to vindicate the religious freedom of a
minority faith against state control, but as the dissenting voice of
Justice Douglas proclaimed: "I think the children should be entitled
to be heard...the education of the child is a matter on which the
child will often have decided views. He may want to be a pianist or an
astronaut or an oceanographer...It is the student's judgment, not his
parents', that is essential if we are to give full meaning to what we
have said about the Bill of Rights and of the right of students to be
masters of their own destiny...The child, therefore, should be given
an opportunity to be heard before the State gives the exemption which
we honor today."
The history of Americans' legal right to control their children's
religion and education deserves fuller treatment than I can give here.
I'll just note that a crucial period in the evolution of our law was
the "Lochner" era--roughly 1890-1930. In this period the Supreme Court
not only defended the rights of factory owners against legislative
regulation; it also defended the rights of parents to control their
children. By way of analogy, one could say that the tendency was to
see children as "property" of their parents in this era of capitalist
legal ideology.
The situation in France is different, of course. The Stasi Commission,
which advocated a ban on the Muslim headscarf and other religious
symbols in public schools, proclaimed that the state had a duty to
protect its "children." The Civil Code states that governmental
officials may veto the names that parents choose for their children,
when the name would harm the child's "welfare." (Article 57)
One thing I wonder is how the French state came to interpose itself
between child and parents, when France inherited the Roman law
principle that the parents, particularly the father, is a sovereign
patriarch. I would speculate that the French state's authority to
defend children is based on a theory of it being a surrogate parent
that can intervene when biological parents do not perform their role
properly. In this way, the patriarchal power is transferred entirely
to the state, where it becomes very difficult to argue against in
legal or sociological terms.
I'm greatly in debt to the following article which discusses some of
the issues I have raised above: Steven G. Gey, "Free Will, Religious
Liberty, and a Partial Defense of the French Approach to Religious
Expression in Public Schools," 42 HOUS. L. REV. 1 (2005). Also of
great interest is James Q. Whitman, "The Two Western Cultures of
Privacy: Dignity versus Liberty," Yale Law Journal, Vol. 113, April
2004. I owe a few of the above speculations to Barbara Fox, a former
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