Tuesday, June 19, 2007

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 student, as well.

Daniel Gordon
Professor of History
University of Massachusetts Amherst