Families, Schools, and Religious Freedom

ABSTRACT:

Christian scriptures point to human beings’ ordinary romantic and familial relationships and experiences as likely irreplaceable pathways for glimpsing foundational beliefs about the identity of God, his love for humanity, and how human beings are to love him and one another. In other words, sex, marriage and parenting are an inextricable part of the language of Christian belief, and the very “architecture” of the faith.

Given this conviction about the role played by familial and romantic relations in the understanding and transmission of faith, Christian parents are alarmed to witness widespread repudiation of their familial norms. Sometimes this occurs in the confines of courses regularly denominated “sex-education” or “health” or “family life” education, but sometimes it occurs elsewhere in the program of education.

This paper will not address the material offered within sex-ed courses, given that these are regularly subject to parental opt-ins or opt-outs. It will also not evaluate age-appropriate communications touching upon sex, marriage or parenting that have as their object the presentation of historic or scientific or other factual material, or which are designed to promote kindness toward, and prevent bullying of, students who identify as sexual minorities or come from families identifying similarly. These not only pose no threat to religious liberty in a Christian vein, but overlap its aims. Instead it will consider state-sponsored proselytizing about familial topics that also possess religious content, which happens outside the confines of classes subject to parental options.

The Supreme Court has not weighed in on the precise question of parents’ rights to object to particular educational content in public schools, save school prayer, but has spoken to parents’ First Amendment Free Exercise and Fourteenth Amendment custodial rights respecting their children’s education. But lower federal courts have considered particular material concerning sex, marriage and parenting that is presented outside of sex-education courses; employing a variety of rationales, they have nearly universally held that parents who send children to public schools are subject to state decisionmaking about educational content. Current cases employ numerous rationales to reach their nearly univocal conclusion.

Given what is at stake, it is important to closely scrutinize these rationales. Close scrutiny reveals numerous weaknesses. I conclude that lower court opinions are getting very wrong the balance of authority between parents and schools, using arguments bordering on the duplicitous concerning matters such as the degree of state coercion, the practicability of avoiding it, and how to advance tolerance and health among students. They also poorly analyze how much promise the Supreme Court’s existing parental rights’ decisions hold for vindicating parents’ constitutional free exercise and custodial rights, and the presence of less restrictive means for the state to advance its important interests in boosting tolerance and health among students. Finally, they ignore the promise that a religious anthropology holds for promoting these goods.