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Why Suffer the Children? Overcoming Christian Opposition to Children’s Rights
by John Witte, Jr.
John Witte, Jr. is Robert W. Woodruff of Law, McDonald Distinguished Professor of Religion, and Director of the Center for the Study of Law and Religion at Emory University. This article is excerpted from his volume “Church, State, and Family: Reconciling Traditional Teachings and Modern Liberties” (Cambridge University Press 2019).
The United Nations Convention on the Rights of the Child (the “CRC”) is a landmark in the modern international protection of children’s rights. Adopted by the United Nations General Assembly in 1989, its fifty-four articles and two optional protocols set out a lengthy catalogue of rights for children. The CRC bans all discrimination against children, including on grounds of their birth status. It affirms children’s rights to life; to a name and a social identity; to care and nurture by their parents; to education, health care, recreation, rest, and play; to freedom of association, expression, thought, conscience, and religion; to freedom from neglect or negligent treatment, from physical and sexual abuse, and from cruel and inhumane treatment, and from compulsory military service. The CRC adds special protections for children who are refugeed, displaced, orphaned, kidnapped, or enslaved; involuntarily separated from their parents, families, or home communities; disabled or addicted; or juveniles afoul of the law.
Reconciling Traditional Teachings and Modern Liberties (Cambridge University Press 2019).
The CRC is not the first modern international statement on children’s rights, though it is the most comprehensive. It builds in part on provisions in the 1924 Geneva Declaration of the Rights of the Child and the 1959 Declaration of the Rights of the Child. The CRC incorporates and imputes directly to children a number of the rights set out in the 1948 Universal Declaration of Human Rights and elaborated in the twin 1966 covenants on civil, political, economic, social, and cultural rights. The CRC also reflects and confirms a series of other international laws and treaties that facilitate international adoption, immigration, and education for children, and that prohibit use of children for labor, pornography, prostitution, trafficking, soldiering, and more.
While not legally binding or self-executing, the CRC highlights the growing global awareness that children deserve “special care and assistance” as the preamble puts it. Over the past century and a half, the world has become increasingly aware and dismayed by the savagery visited on children — first by the Industrial Revolution, the Great Depression, and World Wars I and II, and then by successive waves of civil warfare, crushing poverty, malnutrition, inadequate schools, untreated disease, sex trafficking, slavery, child soldiering, and horrible cruelty and crime. Many modern nations thus established firm new constitutional and statutory safeguards to protect and support children — and instituted ambitious new education, health care, and social welfare programs for children. In that light, it is no surprise that almost every nation has ratified the CRC, including Somalia and South Sudan most recently.
What is a surprise is that the United States remains the only nation in the world not to ratify the CRC. American opposition to CRC ratification has long puzzled observers. After all, American human rights lawyers and NGOs were among the principal architects of this document and have been among the most forceful advocates for children’s rights at home and abroad. Presidents Ronald Reagan and George H.W. Bush and their Republican administrations were instrumental in marshaling reluctant countries to participate in the CRC drafting process and to ratify the convention after its promulgation in 1989. Yet the United States to date has not ratified the CRC, and concerted attempts by Democratic Presidents Bill Clinton and Barack Obama to seek ratification have been repeatedly rebuffed, even ridiculed.
The principal source of opposition to American ratification of the CRC comes from sectors of the “religious right” — in particular, a number of politically conservative Evangelicals, but also a few Catholic and Orthodox Christians. To be sure, many Christian groups do support the rights of children and ratification of the CRC, including the leadership of the Roman Catholic Church, the Baptist Peace Fellowship of North America, the Anglican and Episcopal Churches, the Lutheran World Federation, the Council of Bishops of the United Methodist Church, the World Alliance of Reformed Churches, the World Council of Churches, and others. But a number of Christian organizations and scholars within and beyond these denominations are opposed either to children’s rights altogether or to ratification of the CRC. These organizations include several serious public-policy groups and think tanks with respected scholars, among them the Heritage Foundation, the Family Research Council, the John Birch Society, the Eagle Forum, Concerned Women for America, Focus on the Family, the Rutherford Institute, and the National Center for Home Education.
No serious American Christian critic that I know of objects to the starting premises of the CRC — that every child has the “right to life,” “the right from birth to a name,” and “the right to know and be cared for by his or her parents.” No one objects to a child receiving food, shelter, bodily protection, education, health care, social welfare, or protection from torture, rape, exploitation, or abuse, all of which the CRC addresses with strong provisions. Few American Christian critics today defend traditional illegitimacy or bastardy laws — still maintained in parts of the Muslim world—that visit the sins of fathers and mothers on their children born out of wedlock. Few Christian critics defend traditional patriarchal family laws — still maintained in parts of the developing world — that render children the exclusive property and prerogative of the paterfamilias and leave states with little recourse in the event of parental neglect, abuse, or worse.
The main Christian arguments instead focus on three primary questions: (1) whether children, as such, have rights; (2) whether children’s rights, even if they exist, are best enforced through international law; and (3) whether children’s rights as currently defined inevitably threaten parental rights and religious liberty. Animating some of these arguments are broader concerns about whether modern human-rights talk altogether, not just children’s rights, improperly subordinates Christian moral norms and communal narratives to secular ideals of individualism, personal autonomy, and self-determination.
No Children’s Rights
Some critics of the CRC oppose the idea of children’s rights altogether. The strongest version of this argument holds that rights are exclusively reserved for adults, and that children have no rights until they become adults. The child does not have independent agency, the argument goes, the reason and capacity to operate on his or her own. Just as responsibilities to the state (like paying taxes or serving in the military) or responsibilities to other private parties (like making contracts or paying tort damages) do not begin until adulthood, so rights against the state or any other party cannot be claimed until emancipation from the care of parents or guardians. A child, as such, has public and private rights claims only vicariously through parents or guardians.
This argument fails to recognize that many of the CRC’s provisions are simply affirmations of what were traditionally called natural rights (those rooted in human nature) and are now often called dignity rights (based on human needs). These basic natural or dignity rights do not depend on a person’s age or the acts or agency of another. Basic rights to life, legal identity, nurture, care, and humanitarian aid, and basic freedoms from neglect, starvation, abuse, rape, exploitation, and cruelty all support claims that any person (including any child) must be able to make (or have made for them) — even, if necessary, against abusive or neglectful parents. In cases of parental abuse or cruelty, the notion that children have these rights only through their parents gets it exactly backwards.
This argument further fails to recognize that a number of the CRC’s provisions strongly affirm children’s rights to relate to their parents and to their natural or adopted family. The CRC affirms, for example, “that a child shall not be separated from his or her parents”; that a child has a “right to maintain … personal relations and direct contacts with both parents”; and that, in the event of separation from family, a child has the right to “family reunification” or to placement into a new family (Arts. 9.1; 10.1-2; 21). These children’s rights, too, do not depend on or derive from the rights of parents or guardians but are based on parents’ duties toward their children.
A more moderate version of this argument against children’s rights is that the CRC does not take adequate account of different stages of child development and capacities or the needs and interests attaching to each stage. Too many of the rights outlined in the CRC, this argument goes, project the rights of mature adults indiscriminately onto all children, even if they have little or no ability or capacity to discharge them. It makes no sense, critics contend, to give a toddler the same rights as a teenager, or a first grader the same rights as a high schooler. Yet the CRC does not adequately differentiate rights claims based on children’s developmental stage. It simply defines the child as anyone under the age of eighteen.
Children, however, are born utterly fragile and helpless, and they remain vulnerable and dependent on others for their well-being and safety for a long time. It is this reality that the welfare-rights provisions of the CRC highlight.
This argument has some merit. It must be said that the CRC does include provisions that take explicit account of “the age and maturity of the child,” the “evolving capacities of the child,” and stages in “the child’s physical, mental, spiritual, moral and social development” (12.1; 14.2; 27.1). For example, the right to health care is understood to be both prenatal and postnatal. The right to education should be administered to ensure “[t]he development of the child’s personality, talents and mental and physical abilities to their fullest potential.” Children’s rights “to rest and leisure, [and] to engage in play and recreational activities” must be protected in ways “appropriate to the age of the child.” Children are protected from work or economic exploitation that harms or endangers their development. They also have the right to a separate system of juvenile justice (24.2; 28.1; 29.1; 31.1; 32; 37(c); 40). Overall, Article 5 of the CRC emphasizes that “States Parties shall respect the responsibilities, rights and duties of parents or … other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.”
That said, however, some of the rights listed in the CRC are stated categorically, with no attention to the child’s age, capacity, or stage of development. In some cases, this is because the rights are absolute and perennial, such as the rights to life; to freedom from neglect, abuse, exploitation, and cruelty; and to humanitarian aid and relief in cases of real need (2; 6.1; 7–10; 12–15; 19–20; 23–24; 31; 33–34; 38). These rights claims are available to all children from birth. Other CRC provisions, however, would benefit from a more nuanced consideration of children’s age, capacity, and stage of development — for example, provisions for children’s rights of expression or privacy, or the right to maintain direct contact with both parents (13; 16; 21; 10.2). Some countries have listed such caveats in their official statements and documents ratifying the CRC. These interpretive moves — which lawyers call the “reservations, understandings, and declarations” a nation attaches as a condition to ratification of a given international document — offer a relatively easy fix that would allow the United States to ratify the CRC despite these defects.
No International Children’s Rights
Some American Christian critics of the CRC oppose the idea of international children’s rights — rather than children’s rights per se. Particularly in America, with its federalist system of government, the laws of families and children have always been primarily state rather than federal and have been based primarily on statutes, not constitutional cases. More particularly, American local public and private schools have long been touted as a model and medium of direct democracy in action. Some American critics already oppose federal laws about children and families as encroachments on the powers guaranteed to the fifty individual states by the Tenth Amendment to the U.S. Constitution. For these critics, the involvement of an international body presents an even graver threat to local jurisdiction over family law. Some critics portend apocalyptic scenarios of parents being summoned before a world court for spanking or grounding unruly children or for teaching them Christian values that depart from the liberal cultural mainstream. Others, who know how international human-rights instruments operate in America, worry that Congress will use CRC ratification to justify more federal laws on children’s rights that will further challenge or preempt existing state family laws, even though the CRC’s provisions have often not helped when applied in other countries.
This argument for “American exceptionalism” and exemption from the CRC and other international human rights norms is hard to sustain today. For better or worse, human rights norms are now a major currency of international relations. Not only were Americans among the principal architects of the international instruments articulating these norms in the aftermath of World War II, but American political leaders now use these norms to judge the performance of, and to calibrate America’s relations with, other nation-states. It strains credibility for America to refuse to submit to the same universal standards of human rights to which it holds others accountable. It further strains credulity for America to refuse to ratify this relatively modest children’s-rights convention, especially when the Senate can stipulate “reservations, understandings, and declarations” that would allow the CRC to sit comfortably with existing state and federal laws.
A milder version of this argument criticizes the international social, economic, and cultural rights guaranteed by the CRC. Modern instruments of international human rights, starting with the 1948 Universal Declaration of Human Rights, protect both “freedom rights” (of speech, press, religion, and the like) and “welfare rights” (to education, poor relief, health care, and more). Some critics claim that freedom rights are the only real human rights that states must respect and enforce. Welfare rights are mere aspirational goods that states may choose to fulfil to the degree they can and in the way they prefer (and not at the insistence of a needy claimant or a public-interest litigant). Children have no freedom rights because they do not have moral agency, the argument goes. They have no welfare rights because such rights are mere fictions. Animating this criticism is the Cold War logic of the twentieth century that juxtaposed the “real” freedom rights of the West with the “false” welfare rights of the Soviet bloc.
This logic is less persuasive now that the Cold War is over. Moreover, a hallmark of the international human rights movement is the interdependence of freedom rights and welfare rights. President Roosevelt already highlighted this in his famous “four freedoms” speech in 1940, when he combined “freedom of religion and speech” with “freedom from fear and want.” He was underscoring that rights to worship, speech, or assembly mean little to a person who is starving in the street, dying from a treatable disease, or deprived of basic security and safety. In turn, welfare rights to, say, education or work mean little if the state dictates what you learn, where you work, what you say, and with whom you associate. To be sure, some autonomous, able-bodied, well-connected, and independently wealthy adults might thrive in a regime with freedom rights alone. Children, however, are born utterly fragile and helpless, and they remain vulnerable and dependent on others for their well-being and safety for a long time. It is this reality that the welfare-rights provisions of the CRC highlight.
Affirming these children’s welfare rights does not necessarily mean that state or federal governments, let alone international government agencies, must be the institutions that vindicate them. Families, religious communities, neighborhoods, clubs, private schools, private charities, and many other institutions play indispensable roles as well. Indeed, these institutions are usually in a better position to protect and support children in their communities and to meet the distinct needs of each child — as modern theories of “subsidiarity,” “sphere sovereignty,” and “mediating institutions” all underscore.
Animating some of these arguments are broader concerns about whether modern human-rights talk altogether, not just children’s rights, improperly subordinates Christian moral norms and communal narratives to secular ideals of individualism, personal autonomy, and self-determination.
Crucially, the CRC teaches that children’s rights need delineation, affirmation, and protection in a community. While the CRC calls on “States Parties” to provide the final safety net to ensure that children’s rights are vindicated, it also makes clear that many other nonstate institutions, beginning with parents and families, have principal responsibility for children and their rights, with the assistance of the state as needed. As Article 27 puts it: “The parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child’s development. States Parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing, and housing … adequate for the child’s physical, mental, spiritual, moral, and social development.”
Endangering Parental and Religious Rights
Even if it is true, however, that the concept of international children’s rights has some validity, some American Christian critics argue, the CRC endangers the rights of parents to raise their children in accordance with their own (religious) values and beliefs. Most of these critics focus on the CRC’s list of freedom rights of the child in Articles 12–17: the right to “form[] his or her own views” and “the right to express those views freely”; the “right … to seek, receive and impart information … of all kinds”; the “right … to freedom of thought, conscience and religion”; the “rights … to freedom of association and to freedom of peaceful assembly”; the right to “his or her privacy, … or correspondence”; and the right to “mass media” and “access to information and material … aimed at the promotion of his or her social, spiritual and moral well-being.” While Article 14’s provisions on the child’s rights to form religious and other views are conditioned by “the evolving capacities of the child,” all the other freedom rights listed in Articles 12–17 are stated categorically.
Critics of these provisions worry that these categorically stated children’s rights will restrict parents’ ability to shape the conscience, religious observance, and opinions of their children; to guide their children in establishing friends, relations, and associations; and to monitor their children’s use of privacy, media, and information. What if a child wants to go his or her own way, resists parental limits and instruction, and calls in these freedom rights against parents? What if a government official presumes to know better what exercise of rights is in the “best interest of the child” and intervenes in parental or family decisions that run counter to this state judgment?
These are hard questions. In resolving them, it is important to remember the strong presumption of the CRC, stated in Articles 5 and 27, that the state must respect the rights and duties of parents to provide direction to their children in exercising all of their rights, including freedom rights. Thus, in most cases of routine conflict between a child’s freedom right and a parent’s rights to control the exercise of that right, the parent’s wishes will prevail. “To overcome the parents’ wishes, the state would have to show that the parents’ decision was not consistent with the child’s evolving capacities and/or was harmful to the child,” writes leading children’s rights expert Barbara Woodhouse. “Examples include parents’ objections to a life-saving blood transfusion,” an essential medical procedure or surgery, or vaccination against a serious and contagious disease. Such cases occasionally confront American and other nations’ family law courts and child welfare officials. Courts usually hold for a child over the parents’ objections when the child’s life or limb is in danger. This strikes me as correct: a child’s right to life (the most fundamental right) has to trump a parent’s rights if there is a direct conflict, and in cases of emergency the state should have the power to step in to save that child’s life.
Conflicts are harder to resolve when the stakes are lower and involve non-life-threatening tensions between a parent and an older child who is sufficiently mature to make a decision and opposes the parent’s wishes. What happens, say, when parents convert from Judaism to Christianity, or from Catholicism to Buddhism, and their fourteen-year-old child wants to remain in the faith of his or her upbringing? What happens when a state school or agency wants to give a ninth grader access to a contraceptive and a parent refuses out of religious objections to contraception or out of fear of encouraging the child’s promiscuity? What happens when a child does not identify with his or her birth gender and wants gender-suppressing drugs, sexual therapy, or surgical modification despite the parent’s objections? Here again, the CRC simply restates legal conflicts already existing in state law.
Such cases require a prudent balancing of rights, with attention to longer-term consequences of the decision. These cases are often highly fact specific, and American and other courts have split on these questions. Protecting a child’s desire to continue on the peaceable religious path of his or her youth does not strike me as a violation of parental rights, given the child’s fully protected right to convert to another faith later on, including perhaps the new faith of the parents. Honoring parents’ refusal to allow sexual therapy or modification until their child is an adult and can make his or her own decisions does not strike me as a violation of the child’s rights, especially given that many such procedures are irreversible. The case involving a new high school child’s access to contraceptives is harder. In my view, parents’ religiously-grounded objections to contraceptives weigh more heavily than worries that contraceptives will encourage their child’s promiscuity. But if school or government officials are handing out contraceptives because their pupils are in a school with rampant STDs, or are caught in an irresistible culture or context of promiscuity both at school and beyond, the school’s duty to satisfy the child’s right to access contraceptives becomes stronger. Furthermore, for the child to have the contraceptive as a precaution is not necessarily to use it. On these hard questions, too, American and other courts have split decisions.
Other critics point to Article 29 of the CRC, which says, “the education of the child shall be directed to … [t]he development of respect for human rights and fundamental freedoms”; “[t]he development of respect for the natural environment”; and the development of a “spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin.” While plenty of Christians applaud such values, myself included, others argue that no political body has power to dictate such liberal values in education. What if a parent or a religious school teaches that Christianity is superior to other faiths; that husbands must have “headship” over their wives, as the Bible says; that humans are called to “subdue” the earth and have “dominion” over natural resources in accordance with the creation order; that certain cultural traditions must be avoided rather than befriended; or that human rights altogether are simply liberal “nonsense upon stilts,” in Jeremy Bentham’s pungent words? Would such teachings violate Article 29? This worry has become more urgent for American critics after the Canadian province of Quebec recently imposed the teaching of secular liberal values on private religious schools, and the European Court of Human Rights banned Christian home-schooling in Germany while upholding the secular education programs of France, Turkey, and other countries against parental wishes.
All these provisions make clear that states must protect the family itself, as well as the respective rights of children and parents.
Article 29 is indeed a bit too sweeping, especially when combined with the categorical statements of freedom rights in Articles 12–17. Many countries have thus entered “reservations, understandings, and declarations” to those provisions and have called for more prudential protection of these rights, commensurate with each child’s capacities and abilities and consistent with strong presumptions of primary parental responsibility for children. Moreover, most constitutional democracies have jealously protected the rights of parents to raise and educate children in their own peaceable faith traditions, even if the parents depart radically from the cultural mainstream, so long as the children are not imperiled in life and limb and acquire the basic education and capacity to participate as citizens when they come of age.
Finally, critics point to Articles 19 and 37, which prohibit “physical … violence,” “degrading treatment,” and “arbitrary deprivation” of liberty of children. The Committee on the Rights of the Child, the international body charged with interpreting and overseeing the CRC, has defined such violence to include: female genital mutilation; amputation, binding, scarring, burning, and branding; violent and degrading initiation rites; force-feeding of girls; fattening; virginity testing by inspecting girls’ genitalia; forced marriage and early marriage; violent punishment of “honour” crimes by children; “retribution” acts of violence (where disputes between different groups are taken out on children of the parties involved); dowry-related death and violence; accusations of witchcraft and related practices such as exorcism; uvulectomy and unnecessary teeth extraction.
No serious American Christian critic of the CRC whom I have read wants to protect such violence against children. What concerns some critics, however, is that the same Committee on the Rights of the Child lumps such extreme forms of violence with more conventional forms of corporal discipline of children by their parents, guardians, or teachers. The Committee calls on States Parties to prohibit any punishment in which physical force is used and intended to cause some degree of pain or discomfort, however light. Most involves hitting (“smacking”, “slapping”, “spanking”) children, with the hand or with an implement — a whip, stick, belt, shoe, wooden spoon, etc. But it can also involve, for example, kicking, shaking or throwing children, scratching, pinching, biting, pulling hair or boxing ears, caning, forcing children to stay in uncomfortable positions, burning, scalding, or forced ingestion. In the view of the Committee, corporal punishment is invariably degrading. Both the Committee on the Rights of the Child, and the CRC itself further encourage states to establish “social programmes to provide necessary support for the child” and grant children “the right to prompt access to legal … assistance … before a court” in the event of abuse (19.2; 37(d)).
Some Christian critics worry that such provisions might keep parents from spanking, grounding, and other conventional forms of parental discipline that they feel religiously compelled to administer in application of Proverbs 13:24 that he who “spares the rod spoils the child.” They worry that these provisions will encourage more legal clashes between children and parents and will further erode the freedom and capacity of parents to heed the biblical admonitions to “train up a child in the way he should go” and “teach them diligently” God’s laws for their lives (Prov. 22:6; Deut. 6:7; 11:19).
Affirming these children’s welfare rights does not necessarily mean that state or federal governments, let alone international government agencies, must be the institutions that vindicate them. Families, religious communities, neighborhoods, clubs, private schools, private charities, and many other institutions play indispensable roles as well.
The committee’s call to eliminate every form of corporal discipline of a child goes beyond what Article 19 and 37 literally prohibit. I happen to agree with this more expansive protection of children from bodily threat or harm. Since the law prohibits you from striking a fellow adult with impunity, even though that adult person is capable of self-defense and private redress, why should an adult be able to strike a child with impunity, especially when many children cannot defend themselves or turn to others for help? Moreover, mounting social-science data show that even light corporal discipline is largely ineffective for a child’s physical, mental, spiritual, moral, and social development. More aggressive forms of corporal discipline are deleterious to a child’s development and sometimes tempting to harried parents, guardians, and teachers struggling with unruly or unduly recalcitrant children. I read passages like “spare the rod, spoil the child” as prudential proverbs from the Hebrew Bible, not enduring commands of the Christian Gospel for the Christian life. Nowhere does the New Testament enjoin Christians to administer corporal discipline to their children, even though such actions were commonplace in the muscular patriarchal households of the first century, when the Gospels were compiled. I find it encouraging that a number of Christian churches and theologians now read these legal, sociological, and biblical teachings as urging Christian parents to offer firm and loving nurture and discipline of children, but without corporal punishment.
That said, moderate spanking or slaps on the wrist, or temporary deprivations of movement, goods, recreational activities, or non-essential treats from a child do not, in my view, constitute violations of the CRC. The committee’s characterization of these actions as forms of “violence, injury, and abuse” goes beyond what Articles 19 and 37 say explicitly. These articles are more properly directed against severe whipping, bruising, maiming, starvation, chaining, or long binding of a child, let alone more outrageous sexual violations, physical abuses, or military exploitation of children. All such actions are already viewed as forms of aggravated assault and battery and felony child abuse in most developed legal systems. The CRC reflects those legal commonplaces and encourages states without such criminal protections to enact them. It strains belief that Christian parents or teachers would insist on a unique religious right to harm their children severely but to be exempt from charges of aggravated assault and battery or felony child abuse.
Profamily Rights
More fundamentally, it must be said that the CRC seeks to balance the rights of children and parents and to preserve a strong profamily ethic. The CRC preamble states clearly that “the child … should grow up in a family environment.” Article 3 orders that “States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her.” Article 5 offers an even stronger statement of parental rights: “States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom.” Article 7 assures the child’s “right to know and be cared for by his or her parents,” and Article 8 assures “the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.” Article 9 provides that “States Parties shall ensure that a child shall not be separated from his or her parents against their will,” except, for example, where the parents prove guilty of chronic and persistent “abuse or neglect of the child.” And even in such cases, “States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.”
A child, as such, has public and private rights claims only vicariously through parents or guardians.
These profamily provisions in the CRC echo earlier international human rights instruments that link children’s rights with parents’ rights and focus on the corporate rights of the family more than on the rights of individual parties within the family. The 1948 Universal Declaration of Human Rights already establishes the priority of family rights and responsibilities in Article 16: “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.” This statement was repeated in several subsequent human-rights documents. Among them are the influential 1966 International Covenant on Civil and Political Rights (Art. 18.4) and the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (Art. 5.1), both of which add that states must “have respect for the liberty of parents … to ensure the religious and moral education of their children in conformity with their own convictions.” The 1966 International Covenant on Economic, Social and Cultural Rights provides further: “The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children.” The Covenant goes on to say that “[s]pecial protection should be accorded to mothers during a reasonable period before and after childbirth.” Further, the Covenant states: “Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions. Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law” (10; 18.1)
All these provisions make clear that states must protect the family itself, as well as the respective rights of children and parents. These provisions also affirm that the state does not create the family or the rights of parents and children; rather, the family has preexisting natural rights that are recognized and affirmed by state positive law. That emphasis of the CRC and its predecessors should, in my view, mollify Christian critics who regard the CRC as an assault on traditional religious beliefs about sex, marriage, and family life. And it should remind Christian critics of a two-millennium Christian tradition that commands respect for the rights and needs of all children, including notably the sojourning, impoverished, abused, orphaned, and fatherless children whom the Bible repeatedly singles out for special protection and whose affirmative rights the Western Christian tradition has long cherished and protected. As Jesus put it to his followers: “Suffer little children, and forbid them not to come unto Me, for of such is the Kingdom of Heaven” (Matthew 19:14 KJV). ♦
John Witte, Jr., JD (Harvard); Dr. Theol. h.c. (Heidelberg), is Robert W. Woodruff Professor of Law, McDonald Distinguished Professor of Religion, and director of the Center for the Study of Law and Religion at Emory University. A specialist in Legal History, Human Rights, Religious Freedom, Marriage and Family Law, Law and Religion, he has published 280 articles, 17 journal symposia, and 35 books.
