Law, Religion, and Education
Kathleen A. Brady

The following is an adapted excerpt from the chapter “Law, Religion, and Education” from the book, Faith in Law, Law in Faith: Reflecting and Building on the Work of John Witte, Jr. (2024). Reprinted under Creative Commons Attribution Non-Commercial License (CC-BY-NC). This is part of a series of Literature Highlights dedicated to celebrating John Witte Jr.’s work. Read more here.

Education has many functions, all would agree. It prepares children to live with others in society, succeed in the economy, and govern together in a shared polity, as today’s scholars frequently emphasize. It also enables children to develop into independent adults capable of making their own decisions and taking responsibility for their own lives, others highlight. Its content has inherent value, increasing human understanding, developing human excellences, and driving human progress, others observe. From a religious perspective, however, the purposes of education go deeper and require more. Human flourishing has moral and spiritual components, and to teach a child well requires a broader perspective that embraces the full range of human goods. Education is, moreover, formative. It initiates each new generation into traditions of thought and practice that carry insights about right living, truths about human nature and ends, and the promise of connection to the divine source of all of these. Indeed, life itself, in all of its dimensions, depends upon these insights and connections, and parents bear the primary responsibility to ensure the transmission of this wisdom.

For a century American constitutional law has recognized robust parental rights to direct the education and upbringing of their children, especially their religious education, but this framework has come under deepening attack. Scholars have argued that the requirements of civic education in a democracy place significant restrictions on these rights when parents make educational choices that limit the exposure of their children to alternative points of view or consideration of different value systems. Others have argued that exposure and engagement with ideological diversity is essential for children to develop and express their own views and that children should play a greater role in making decisions about the type and scope of their education even when parents disagree. Scholars advocating child-centered perspectives have frequently called for the dramatic curtailment, reconceptualization, and even abandonment of parental rights in favor of approaches that prioritize children’s rights and interests. Much of this scholarship has been critical of the educational practices of conservative religious believers, including homeschooling, separatist religious schools, and demands for exemptions from curriculum requirements in public schools. These practices have been condemned as harmful to both children and society alike.

In this chapter, I engage some of these critiques in light of John Witte’s important historical work on the family in Western thought. The family, Witte has argued, can be conceived of as a multidimensional sphere with natural goods and functions at one pole; social, economic, communicative, and contractual dimensions in the middle; and spiritual aspirations and ideals at the other pole, binding the rest together. Children’s interests and rights have had an important place in Western constructions of the family sphere, as have civic concerns, but these have also been integrated with other important concepts. These include parental duties that complement parental rights, and reciprocal rights and duties of children. Likewise, the health of human society depends upon the protection of the family and its mutually supportive relationships from state encroachment, even as families also depend upon the aid of other institutions, including both church and state.

Critics of America’s constitutional framework frequently argue that expansive parental rights subsume children, hiding their needs and interests in a mythical private family unit and turning them into instruments of parental desires and objectives. They view their work as recovering the child and their rights. Witte’s scholarship affirms the importance of children’s rights, but it uncovers much more nuance from the Western tradition. Parents and children share interlocking rights and duties, and they form parts of multiple communities that must respect human autonomy while also making room for the capacity and desire of human persons to seek the truth, live rightly, and reach for the source of these human goods. There must be limits on parental rights where they compromise essential needs of children and vital interests of the larger society, and Witte’s work helps us to see where these limits might be drawn. However, he also points us to the promise of greater cooperation among parents, religious communities, and the state. Notwithstanding America’s diversity, conservative religious believers share with others many of the same values, concerns and goals for children, and true partnerships between parents and government actors will go much further toward meeting the needs and interests of children than will competitive relationships or isolated efforts.

The Multi-Dimensional Family

In his scholarship on the family, Witte develops a model of the family as a multidimensional sphere or globe with natural, social, economic, communicative, contractual, and spiritual dimensions (14-15, 186). The relationship between parents and children spans these dimensions, and like other aspects of the family, it interacts with the religious, political, and civic institutions that make the family not only multidimensional but also multi-institutional (9, 198-200, 226). The interests of children have always had a central place in Western constructions of the family, and the Western tradition has recognized children’s rights since the Middle Ages (256-66). Civic concerns also weave in and out of Western constructions of the family. However, much is missing from modern critiques that Witte’s wide-ranging exploration of Western philosophical, religious, and legal thought on the family uncovers. Witte’s work offers a deeper understanding of the content and roots of our constitutional tradition and a fuller picture of the many values and considerations at stake when states, families, and religious communities clash—and cooperate—over the education of children.

At the bottom of the family sphere, Witte explains, is the natural pole that anchors the family in the natural goods of family life as well as the natural inclinations, instincts, and affections that underlie the family form (14, 186). These natural inclinations include the strong natural attachments and affections of parents for their children that the U.S Supreme Court has cited as a basis for recognizing the primary role of parents in the upbringing of their children. The natural pole also includes the natural law reasoning that Western theorists have long used to develop ideals and rules for the family based on human nature, conscience, experience, rational reflection, custom, and tradition (189, 196). Children are born fragile and dependent, and the parents who have given them life and have a natural affection for them have duties to care for them, assist their growth and development over time, and prepare them for independent lives as adults (4–7). These parental duties give rise to parental rights, the Western tradition has long taught, (44, 64–69, 220, 259–61) and beginning in the Middle Ages, the church also recognized children’s rights corresponding to the duties held by parents and, in their absence, by church and state authorities in their place (220, 259-61).

This interlocking matrix of natural rights and duties between parents and children endured as a staple of the Western tradition through the early modern period in both Protestant and Catholic thought, (6-7) and it was carried through the Enlightenment by many theorists, including those strongly critical of traditional Christianity (7, 261–65, and chap. 6). It also became part of both the civil and common law traditions, including the Anglo-American legal tradition that shaped the Court’s approach to parental rights (261–66). Parents have duties to care for, nurture, and educate their children, and corresponding rights to direct their upbringing (220–21, 265–66). Children have rights to the care that parents are obligated to provide as well as duties to care for parents when they become aged and unable to care for themselves (220–21, 265–66). Parental rights and duties are exercised in the context of supportive institutions, including both church and state, and religious and governmental authorities also step in to protect children when necessary (9, 14, 198–99, 220, 260–61, 354–55, 356–57). The Supreme Court has drawn on this tradition when it has connected parental rights and duties and grounded these on the natural affection of parents for their children and the assumption that parents best know the needs and interests of their children.

Critics of the Court’s protections for parental rights generally envision these rights as autonomy rights held by parents and serving their own interests and often only incidentally the interests of their children. Religious education, in particular, becomes an exercise or expression of the parents’ faith and, as such, something that can come at the expense of children who may have different views or no opportunities to develop their own. For many critics, natural attachments also become suspect. The intuition that our children belong to us or are, in some way, an extension of ourselves is fundamentally egotistical. Children are treated like property and instrumentalized for their parents’ own purposes. However, these arguments oversimplify the tradition of parental rights. The intuition that our children belong to us is part of what gives rise to parental affections, and these affections can be deeply sacrificial. Parents naturally strive to give their children a better future and more possibilities than they have had. This is not an expression of egotism or exploitation, as some critics have argued, but a powerful other-regarding instinct. To be sure, this instinct comes with risks that parents may confuse their own desires with those of their children, and all parents must learn, sometimes painfully, to adjust their dreams for their children to their children’s own dreams for their future. However, parental failures and imperfections do not fundamentally change the nature of the parental attachments that provide an important basis for recognizing parental rights.

A property-based view of parental rights also misses the context of these rights in a larger constellation of parental duties and children’s rights. The Court has never envisioned parental rights in isolation apart from the responsibilities that ground them and inform their exercise. Parents have duties that match their natural affections, and their love and care for their children lead them to understand their children and their needs best. Parents are not perfect and will often fall short of their best intentions, and multiple supportive institutions have long played an assisting role in child-rearing. However, it is too simplistic to see parental rights as ownership rights, and foolish to minimize the value of parents’ strong interests in their children. It is also too simplistic to see parental rights as a form of coverture that silences the voices of children and subsumes them into the mythical private family unit. Parental rights correspond to parental duties to help children develop their own voices over time and to grow into independent and responsible adults. Very few parents want slavish children or stunted adults. Indeed, parents are usually best positioned to defend their child’s voice when others, including well-meaning bureaucracies, cannot hear it. The privacy that the law affords families is designed to strengthen the ability of parents to care for their children and to defend against encroachments that may be well-intentioned but lack the unique perspective and concern that parents have. The best interests of the child will always be specific to the child, and in general no one knows their children better than parents.

Critics of strong parental rights also often reject the idea of natural law and natural rights. The claim that parental rights have a basis in natural rights is just a naked assertion, a form of fiat without justification, some have suggested. The concept does not correspond to anything essential about the world or human relationships, others have argued. However, these dismissals are too facile. The Court’s embrace of parental rights and the related natural rights tradition draws upon centuries of reasoning about human nature and experience and extends this reasoning. Critics are correct that Western history also includes the concepts of patriarchy and coverture, but Witte argues convincingly that these concepts “obscured the ideals” of Western teaching rather than represented them (371). Reciprocal rights and duties between parents and children is a very different concept than paternal ownership and dominion. Authority is for the benefit of the child, not at their expense.

Of course, the law must not ignore the imperfections of parents and their more serious failures, and it never has. As Witte explains, the social dimension of the family includes the many institutions that have long supported the family and stepped in where parents abandon, neglect, or abuse their children (9, 14, 198–99, 220, 260–61, 354–55, 356–57). The family is both multidimensional and multi-institutional (9, 198–200, 226). Religious communities have long played this supportive role, including through the operation of religious schools and other programs designed to benefit children and the family more broadly (354–55). So have other voluntary associations and charities, neighborhoods and informal social networks, and professions of many kinds (9, 14–15, 197–200, 356–57). The state also has a vital role, but Witte cautions that its role must be to aid parents and other institutions, not supplant them (356–57, 369). The state cannot replace parental love and the unique perspectives that parents have about children’s needs, and it must respect the different religious beliefs and value systems that are nourished by a free society (358, 365).

The strongest critics of expansive parental rights tend to pit the interests of parents and children against one another and assume that the state will often be the better judge of what is best for the child. The state becomes the guarantor of the child’s future autonomy and the protector of the child’s present agency, voice, and diverse interests and values. Disputes between parents and children become battles where parents naturally, but problematically, seek to align their children’s views with their own, while children seek to define their own lives. But this is a caricature. Parents are not so inclined to stifle their children’s individuality that they cannot be trusted with broad authority over their children’s education and upbringing. Most parents listen to their children’s developing voices and perspectives, although they also generally bring additional experience and maturity.

Critics are particularly troubled by the decisions of conservative religious parents to seek educational environments that limit their children’s exposure to conflicting value systems in order to ensure that they remain within the parents’ faith communities. Of course, these parents do not necessarily seek to control other aspects of their children’s lives or developing interests, but there is also little risk that they will be able to fully seal their children’s religious world off from the larger culture, unless they also imprison them within the home (and take away their electronics). Children will see and meet others in a variety of contexts, including in the marketplace and on the playground. There is also no danger that parents can prevent adolescents from questioning their beliefs and values, or from leaving the community when they become adults. On the other hand, if parents are prevented from educating their children in tight-knit, cohesive religious settings, the thick normative worlds that open up to children in these contexts may no longer be an option for them, or others, to consider. Moreover, deep grounding in a particular belief system may enhance the depth of later engagement with other ideas and open up lines of thought one might not otherwise develop.

Today’s critics also tend to overlook the communicative dimension of the family that strong protections for parental rights recognize and safeguard. This dimension includes the vital role that parents play in transmitting values and beliefs to new generations and the mutually supportive bonds and relationships between family members. (214–15) “[P]rivate daily communications” fall within this dimension, Witte explains, referencing the intimacy of the parent-child relationship and other relationships among family members (14, 186). Most scholars recognize that this intimate relationship benefits the child, but they downplay the risks to this relationship where governments intervene in disputes between parents and children over divergent beliefs and values or second-guess parental decision-making more generally. They also downplay the risks that this intervention will disrupt the vital role that families play in transmitting values to future generations.

These scholars also miss the connection between strong family relationships of trust and mutual support and the civic interests that they value. The family benefits from state support, but stable, flourishing families are also essential to the health of societies. The family is “the foundation of society,” “a kind of school of deeper humanity,” the Catholic Church has taught, as Witte has observed (sec. 52). For early modern Protestants, Enlightenment theorists, and common law jurists alike, Witte explains, the family was “the first school of love and justice, nurture and education, charity and citizenship, discipline and production” (368). Protecting the privacy of the family and minimizing intrusions into its relationships is designed, in part, to strengthen the bonds of care and trust that nourish not only the child but also the society more broadly. Scholars who argue that parental rights must yield to hefty demands of civic education often fail to consider the ways in which these demands might erode as well as advance civic interests. Indeed, significant intrusion into the educational choices of parents, especially when religious interests are impinged, is likely to generate civic distrust and undermine civic stability rather than strengthen tolerance and mutual respect.

It is, however, the spiritual dimension of the family that critics of expansive parental rights both miss and misunderstand the most. Descriptions of parental rights as liberty interests that pose potential risks to the state and to children who may want to make different choices leave out the most vital information about what is at stake for religious parents. Parents do not view the religious education of their children as an egotistical endeavor to replicate their own religious choices and preferences, creating “puppets of [their] wishes.” Rather, they view it as the fulfillment of their highest duty to their children.

For the believer, their faith tradition discloses essential truths about human nature, purposes, and ends, and these truths make full human flourishing possible. Religious traditions connect human persons to the divine source of all that exists and support life in all its dimensions. Teach your children God’s law, Moses says, so that they “will be in the right” and live (Deuteronomy 6:24–25). Witte offers this gloss on the prophet Malachi: the procreation, care, and education of children are “a sharing with God in the creation and nurture of a new image-bearer and a new covenant-follower of God on earth” (231). They participate in God’s creative love and care for humanity (258–59). For the religious believer, then, religious education is the deepest and most significant act of parental love, the supreme reflection of the affection parents naturally have for their children.

Thus, the religious beliefs of parents and children alike are more than simply personal preferences or choices. They reflect the capacity and desire of humans to seek the truth, live rightly, and reach for the divine source of all human goods. It is natural for parents to want to pass on what they understand about these matters to their children and to view this education as among the most important of their children’s present and future interests. Critics of expansive parental rights seek to highlight and elevate the interests of children, but this spiritual interest is often missing and, with it, the value of religious education. Of course, not everyone has religious beliefs or assigns value to religious education, but the First Amendment protects the views and practices of those who do and the many different paths they choose.

But if religious beliefs cannot be reduced to mere choice or human agency, they also inescapably involve choice. No one can be forced to believe, and effective education can never be the “indoctrination” that many of the scholars discussed here fear. Religious education begins as formation within a tradition, but the child must eventually choose to remain within that tradition or reject it. If they stay within it, they will become part of a continuing process of renewal and revitalization. Religious traditions are never static. They cannot survive without the formation of new generations in the beliefs and practices of the past, but they will not thrive if these new generations do not embrace the tradition as their own and continually develop it in light of new challenges and circumstances, including new ideas in the surrounding culture.

Conservative Christian parents who homeschool or choose other forms of separatist education for their children may appear from the outside to be rigid and resistant to change, but many of them are trying something new. While they may wish otherwise, they cannot keep their children from eventually doing the same. It is, however, another caricature to view conservative religious believers as puppeteers of passive children. The religious parent who wants for their children what they have “missed, lost, [or] failed of” naturally wants most earnestly for their child a deeper faith, more profound insights, and a straighter path¹. None of this can be forced, and the way forward is not always clear. Parents understand this, and they know that while they can influence, they can never control.

The Multi-Institutional Family

As with all rights, there must be limits on parental rights. Parents should be given the primary responsibility for the care and education of their children, but their authority cannot be absolute. These limits, however, must be narrow, and they must reflect the traditional assumption that parents love and know their children best. They must also respect the position of parents who consider a religious education to be among their children’s most important interests and their own highest duties.

Certainly parents must not be allowed to abuse or neglect their children. Some critics of homeschooling have argued that homeschooling has been used as a haven for parents who neglect or abuse their children, and there is evidence that this occurs. However, the extensive restrictions or prohibitions that some have advocated are not necessary to address this problem. More narrowly tailored rules directed at known or suspected abusers can protect children’s interests while respecting the desire of many parents to homeschool. Where homeschooling is a religious choice as it often is, sweeping restrictions also do not respect the free-exercise concerns at stake. Protecting children from abuse and neglect is surely a compelling state interest, but under the Court’s current free exercise jurisprudence where religious education is involved, the government must show a tight connection between this objective and its rules. A ban or extensive restrictions would not even pass a much lower standard of review.

The Court has also recognized that governments can act to ensure that the educational choices of parents provide children with basic knowledge and skills and sufficient training to prepare them to function as independent, self-sufficient adults capable of engaging effectively in democratic self-government. These requirements might include, for example, studies on U.S. history and government. However, the hefty requirements for civic education that many scholars propose go beyond what is necessary to meet these basic goals. Exposure to and consideration of alternative belief systems in a school setting is not necessary to cultivate tolerance and mutual respect for one’s fellow citizens or to exercise political judgment in a democratic polity. America’s successful experience with self-government before the advent of compulsory education belies claims to the contrary.

Nor does the give and take necessary for democratic self-government require citizens to conduct public affairs in terms that all can be expected to understand and accept. Consensus can be found among those who approach problems from very different perspectives and value systems, and exposure to opposing views in public debate and decision-making can shift one’s perspectives over time. Indeed, adopting educational requirements that ignore the concerns of religious traditionalists is probably more likely to undermine civic trust and cooperation than to advance them.

Limits would also be appropriate where the educational choices of parents truly risk stunting their children’s intellectual or emotional development so that their ability to make their own independent decisions as adults is compromised. However, critics overstate the risks associated with the separatist choices of America’s religious conservatives. Homeschooled children are not generally sealed off from the larger world. They go to churches and stores, and they encounter other children on playgrounds, sports teams, and other clubs and extracurricular activities. It is possible to imagine forms of education that would stunt the normal development of children, but broad prohibitions or restrictions based on sweeping assumptions without specific substantiation are not justified.

While some limits on parental rights are essential, for most children the greater promise will come from cooperative relationships between parents and the state. In earlier periods of Western history, religious and state authorities often worked closely together to support families, (9, 198) but in pluralistic societies that embrace religious freedom, this type of close integration between church and state is no longer possible or desirable. Cooperative relationships between parents and governments must also make space for the many different belief systems that parents may hold. However, true partnerships that recognize both the principal responsibility of parents for their children and the resources that the state may be able to offer hold great promise for improving the lives of children, much greater promise than adversarial relationships or isolated efforts.

While critics of strong parental rights often highlight what they believe to be the most egregious forms of parental misconduct, they also describe many lesser shortcomings, including a number that most parents will recognize in themselves. Parents want what is best for their children, but they act with imperfect information. They are tempted to assume that their desires match their children’s needs even if they do not, and while they usually listen to their children’s voices, they may have trouble fully understanding what they have to say. They also face challenges that confound us all, even experts they may go to for help and guidance. None of this means that courts should abandon the presumption that parents act in the best interests of their children or that governments should substitute their own judgments for those of parents. Nor does this mean that governments should intervene to give effect to the child’s voice when children disagree with parents who are well-intentioned and doing their best to act in their children’s interests. State actors are imperfect too, and generally they do not love and know the child as well.

However, the imperfections of both parents and state authorities alike do mean that there is great benefit from cooperative relationships that combine the unique concern and perspectives of parents with the resources and expertise that governmental officials can offer. As Witte observes, parents already benefit from the support of many different types of formal and informal associations and relationships, including religious communities, neighborhoods, civic groups, and professionals of all sorts. Governments, in particular, play a substantial role in supporting the educational responsibilities of parents, including through the operation of public schools and the provision of resources to private schools, including increasingly religious schools. However, in these relationships, governments often assume a directive role, setting curriculum standards and other requirements with little direct involvement from the families they serve. They also miss opportunities to partner with parents in meeting the challenges that students face.

Efforts should also be made to accommodate parents who object to specific aspects of public-school curricula on religious grounds. Families are moral and religious communities that play an essential role in transmitting values to the next generation. Schools are moral communities as well, even public schools, and they also play a vital role in passing down social and civic values to future generations. In public schools, these values should be broadly shared principles that most families can agree upon, and parents should have an important role in determining what these values are. However, not all families will agree on the values that are chosen, and America’s most conservative religious parents may find themselves outside of whatever consensus is reached. Critics of expansive parental rights have frequently opposed accommodations that would allow parents to opt children out of material such as sex education and deliberation about different belief systems. However, making accommodations that are feasible and do not compromise basic educational goals is the better course. Accommodations respect religious liberty and preserve the pluralism that enriches America’s moral and religious landscape. They also build civic trust and promote the willingness of all parties to work together to address the many common concerns they do share.

Conclusion

Critics of robust constitutional protections for parental rights often pit these rights against the interests and rights of children and the demands of liberal democracy. Parental rights certainly have limits, but critics tend to overlook the many ways that they complement and vindicate the rights of children and strengthen the larger civic community. Both parental rights and children’s rights have been essential features of Western constructions of the family, Witte has argued, and they are related. So have mutually supportive relationships between families and the communities and institutions around them. The greatest promise for improving the lives and education of children involves the cooperation of all these entities in ways that recognize the primary role of parents in raising their children, the inherent pluralism of free societies, and the expertise that state officials and other professionals can offer. ♦

Kathleen A. Brady is a Senior Fellow and McDonald Distinguished Fellow with the Center for the Study of Law and Religion at Emory University, and she is currently a participating scholar with the Religious Freedom Institute’s project on the Freedom of Religious Institutions in Society. Her scholarship focuses on the intersection of law and religion, including the First Amendment religion clauses, religion in public life, law and theology, and Catholic social thought.

Recommended Citation

Brady, Kathleen. “Law, Religion, and Education.” Canopy Forum, October 17, 2024. https://canopyforum.org/2024/10/19/law-religion-and-education/.

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