WHO OWNS THE SOUL OF THE CHILD?: AN ESSAY ON RELIGIOUS PARENTING RIGHTS AND THE ENFRANCHISEMENT OF THE CHILD
Charleston Law Review and the author of the article granted permission to reprint the work. The article first appeared in the Charleston Law Review (6 Charleston L. Rev. 385 (2012)).
Abstract
Betty Simmons was nine years old when she accompanied Sarah Prince, her aunt and guardian, to distribute religious literature on the streets of Brockton, Massachusetts.Mrs. Prince did not ordinarily permit Betty to engage in preaching activity on the streets at night, but on the evening of December 18, 1941, she reluctantly yielded to Betty‘s entreaties and (perhaps more difficult to resist) her tears. Both Mrs. Prince and Betty were Jehovah‘s Witnesses, for whom street preaching is a religious duty. For Betty, street preaching was work commanded by the Lord, but it was work that she loved to do. It was a way of worshipping God.For the legislators of Massachusetts, however, Betty‘s religious work was something else entirely: a violation of the state‘s child labor laws. These statutes prohibited children from selling or offering to sell ― any newspapers, magazines, periodicals or any other articles of merchandise of any description . . . in any street or public place.
Criminal sanctions were imposed on parents and guardians ― who compel or permit minors in their control to engage in the prohibited transactions. Sarah Prince was convicted on several counts, and, for the most part, the judgment of the trial court was affirmed by the Supreme Court of Massachusetts. Mrs. Prince appealed to the United States Supreme Court.
The case of Prince v. Massachusetts is well known for its conclusion that ― the family itself is not beyond regulation in the public interest, as against a claim of religious liberty. In Prince, the Court stressed that the state, acting as parens patriae — acting, that is, in its capacity as protector of those unable to protect themselves — is responsible for the general welfare of young people. As parens patriae (literally, as parent of the country), the state may protect children against the misconduct of their own parents and guardians. The state‘s parens patriae authority, according to the Prince Court, is ―not nullified merely because the parent grounds his claim to control the child‘s course of conduct on religion or conscience. Pointing to a number of state regulations (such as child labor and compulsory schooling laws) that interfered with religious parenting rights, the Court rejected Mrs. Prince‘s contention that such regulations can be justified only by a clear and present danger to the child. While a regulation of adult religious activity might require the state to show that it had a truly compelling justification, no such showing was necessary where children are involved. ― The state‘s authority over children‘s activities,‖ the Court insisted, ― is broader than over like actions of adults. Thus, the Court concluded that the state was required to show only that it had a legitimate (not a compelling) interest to promote the public‘s health, welfare, or safety, and that it had used a means—here, a restriction on commercial activity by children — reasonably related to its purpose (not the least restrictive means possible). Child labor laws served ―the interest of youth itself, and of the whole community, that children be both safeguarded from abuses and given opportunities for growth into free and independent well- developed men and citizens. For the Court, it was simply too late to doubt that legislation designed to protect children is within the state‘s police power, ―whether against the parent‘s claim to control of the child or one that religious scruples dictate contrary action. Mrs. Prince was not entitled to an exemption from the general law of the state regulating child labor.
Its focus on the welfare of the child notwithstanding, the Prince Court managed to ignore the real child whose welfare was the central issue of this landmark case. For one thing, no one on the Court suggested that Betty may have been too young to choose such a strong religious commitment. Writing for the Court, Justice Rutledge noted that ―Betty believed it was her religious duty to perform this work and failure would bring condemnation ̳to everlasting destruction at Armageddon.‘ On this point, the Court‘s four dissenting justices agreed with the majority: Betty wanted to accompany her aunt, motivated to engage in missionary evangelism by her love of the Lord. Mrs. Prince‘s brief to the Court also stressed that Betty ―desired to serve Almighty God. Her service was freely given to the Lord. In Mrs. Prince‘s words:
[Betty] was serving Jehovah God and not her guardian, not any man, not the society or any earthly institution. The girl desired to pay her vows unto her God. Since she was thus serving Jehovah it cannot be said that she was working for any creature on earth. No man or government has authority to punish a child or another creature because the child is permitted to serve Jehovah God.
From this point of view, Betty‘s street preaching was not child labor at all. No constitutional truism is more universally accepted than Justice Jackson‘s famous assertion, in West Virginia State Board of Education v. Barnette, that ―no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. In Barnette, the Supreme Court protected school children against the action of local authorities, who, by compelling the flag salute and pledge, had ― transcend[ed] constitutional limitations‖ on the authority of the state. The injury caused by such a compelled statement of belief was a grievous one, a blow to the intellectual and moral personhood of the young children. The compulsory flag salute and pledge―require[d] affirmation of a belief and an attitude of mind. By forcing the children to utter what was not in their minds, the state had invaded ―the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.
In the catalogue of opinions not subject to official prescription, religion occupies a privileged place. The Constitution‘s commitment to religious freedom arises from the assumption that religious principles are uniquely the dictates of conscience. Because religion is, as James Madison put it, ―the duty which we owe to our Creator . . . it can be directed only by reason and conviction, not by force or violence. Not, that is, by the state. Even a benign expression of religious views by the state ―may end in a policy to indoctrinate and coerce,‖ calling into question the voluntariness, and thus the genuineness, of belief.
―A state-created orthodoxy,‖ the Court has said, ―puts at grave risk that freedom of belief and conscience which are the sole assurance that religious faith is real, not imposed.
But, for children, the threat to freedom of belief and conscience is no less grave when it comes from private orthodoxies, and the injury to the child caused by private coercion is no less grievous. The realm of intellect and spirit is invaded when children are forced to believe what other people believe, or kept from believing what other people do not believe, even if—and, perhaps, especially when—those ―others‖ are their parents or religious mentors. Yet children are left legally unprotected from most forms of private religious coercion. Indeed, where the religious upbringing of children is involved, freedom of belief can lose its customary meaning. Somehow, Betty‘s fear of ―everlasting destruction‖ showed that her evangelical desires were the product of free choice. The Court did not pause to consider whether Betty‘s religious training had left her unable to choose—freely to choose, or freely to reject—the religious commitments of her guardian. Theologically, we might wonder how free a young child can be to make religious choices when the consequences of choosing wrongly are so stark. More relevant to the Court‘s work, we should wonder what it means for the psychological welfare of a child to believe that her own conduct—or, in Betty‘s view, misconduct—could bring about her everlasting destruction.
The Supreme Court did not stop to think about such things. It held against Mrs. Prince on the dubious basis that street preaching was dangerous work for children.34 But the Court chose to overlook a real risk of harm to Betty: the threat posed by a religious regime that makes genuine choice and real faith difficult, if not impossible. Or perhaps it should be said not that the Court ignored this harm, but that it could not see it. The Court could not see the possibility that Betty‘s obedience was the product not of choice, but of the loss of choice, of childlike surrender to a familial authoritarianism. The danger of emotional maltreatment was hidden in plain sight, but the Court could not challenge the cultural norm that parents have the right to form the religious beliefs of their children. The Court was incapable of asking, What does Armageddon have to do with Betty Simmons?
