Religious Rights of Children: A Gallery of Judicial Visions


What do a child’s religious rights “look like”? A review of the Supreme Court’s opinions on the subject discloses not a clear or consistent picture, but shifting and various conceptions of children’s rights under the religion clauses of the first amendment. This article will examine the reasons for – and the results of – this variety of visions of the shape of a child’s religious rights.

In general, the Supreme Court has crafted constitutional rights for children that bear little resemblance to those styled for adults from the same constitutional provisions. While an adult’s abortion right may be circumscribed only by health regulations and her own financial resources, the state may impose additional restrictions, such as a requirement of parental consent or judicial approval, on a minor seeking to exercise the identical right. In the field of criminal law, separate justice systems have been established for juvenile and adult offenders. And compulsory education laws uniquely and sharply limit the liberty of minors to an extent unparalleled by any government restriction on adults.

The Court has drawn a set of constitutional rights for children to match its own perceptions of their unique needs. In delineating special constitutional rights for children, the Court has noted, for example, that the “peculiar vulnerability” of children justifies special judicial consideration; because of their dearth of strength and maturity, children are protectively excluded from manytraditional forms of power such as legal and commercial action. Similarly, the Court has cited children’s “lack of experience, perspective, and judgment” as reasons for limiting their “freedom to choose for themselves” in important matters.

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