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The Constitutional ParentRights, Responsibilities, and the Enfranchisement of the Child$

Jeffrey Shulman

Print publication date: 2014

Print ISBN-13: 9780300191899

Published to Yale Scholarship Online: January 2015

DOI: 10.12987/yale/9780300191899.001.0001

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Parenting as A Sacred Right

Parenting as A Sacred Right

(p.93) Three Parenting as A Sacred Right
The Constitutional Parent

Jeffrey Shulman

Yale University Press

Abstract and Keywords

The right to parent as a matter of constitutional law is especially tenuous. The Supreme Court has on occasion echoed the popular assumption that the right of parents to make decisions concerning the care, custody, and nurture of their children is a fundamental one, deeply rooted in legal tradition and honored by the work of the Court. But no Supreme Court holding—including those of the seminal parenting cases Meyer and Pierce, and modern variants like Yoder and Troxel—supports this claim. If the rigor of the Court with regard to the regulation of parental authority has varied, its scrutiny has never been strict. In fact, more than once the Court has declined the opportunity to adopt this position. As Justice Antonin Scalia has observed, there is little decisional support for the notion that the right to parent is a “substantive constitutional right” at all, let alone a fundamental one.

Keywords:   right to parent, constitutional law, strict scrutiny, Supreme Court parenting cases, regulation of parental authority

In this day and under our civilization, the child of man is his parent's

child and not the state's. Gone would be the most potent reason for

women to be chaste and men to be continent, if it were otherwise. It was

entirely logical for Plato, in his scheme for an “ideal commonwealth,” to

make women common; if their children were to be taken from them, and

brought up away from them by the state for its own ends and purposes,

personal morality was, after all, a secondary matter. The state-bred monster

could then mean little to his parents; and such a creature could readily

be turned to whatever use a tyrannical government might conceive

to be in its own interest. In such a society there would soon

be neither personal nor social liberty.

—Brief of Appellee (William Guthrie and Bernard Hershkopf)

Pierce v. Society of Sisters (1925)

Doctrinal Beginnings and Byways: O'Connell v. Turner (1870)

Daniel O'Connell was fourteen when he was committed to the Reform School of Chicago under a city statute that permitted arrest and confinement “of all children, between the ages of six and sixteen years, who are destitute of proper parental care, and growing up in mendicancy, ignorance, idleness or vice.”1 Upon petition by Daniel's father, the Supreme Court of Illinois issued a writ of habeas corpus, and the case came before the court. The year was 1870. For the city of Chicago, the city attorney submitted a brief that was little more than a direct recitation of the case Ex parte Crouse (1839). In Crouse, the Pennsylvania Supreme Court had declared that “the (p.94) public has a paramount interest in the virtue and knowledge of its members, and that, of strict right, the business of education belongs to it.”2 On behalf of Daniel, the attorney William T. Butler offered, as David Tanenhaus describes it, “a vision of the postbellum world in which the liberty of the individual would reign supreme.”3 For his critique of state paternalism Butler found support in the newly minted Fourteenth Amendment. The liberty guaranteed to “all persons,” he asserted, was promised to children, too. In O'Connell v. Turner, the legal world received early warning of movement along the fault line between common law tradition and liberal constitutionalism.4 Though the court pursued a natural law alternative, it was Butler's brief that pointed out the means by which parental rights would make their constitutional appearance.

The Turner court echoed Butler's solicitude for the rights of children, but it turned to a more ethereal source of law: “the rights which inhere both in parents and children.” Both parent and child enjoy “the inherent and inalienable right to liberty” that is “independent of all human laws and regulations.” This liberty, as Sarah Prince would argue some fifty years later, is “higher than constitution and law, and should be held forever sacred.” Far from being the product of legislative largesse, the power of the parent is a natural right, “an emanation from God” that the municipal law should not disturb “except for the strongest reasons.” Not surprisingly, the court demanded a tough standard of review as a check on undue state regulation. Violations of divine emanations, it would appear, can be justified only by “dire necessity.” So, before it could abridge the right to parent, the state was required to prove “gross misconduct or almost total unfitness on the part of the parent.” By “parent,” the court really meant the father, who “struggles and toils through life” to educate the child. Like the courts that upheld the parent's right to choose what public school courses his child would take, the Turner court was alarmed that state interference might “alienate the father's natural affections.”5

The Turner court did not entirely abandon the trust model of parentchild relations, nor did it endorse a rule of arbitrary parental power. The parent (unlike, as the court conceded, the father under Roman law) has only as much authority “as may be necessary to the discharge of his sacred trust.”

(p.95) The law tolerated “moderate correction and temporary confinement.” But these concessions only confirmed that, in Daniel's case, the state's commitment statute was itself a product of uncontrolled authority: “If a father confined or imprisoned his child for one year, the majesty of the law would frown upon the unnatural act, and every tender mother and kind father would rise up in arms against such monstrous inhumanity. Can the State, acting as parens patriae, exceed the power of the natural parent, except in punishing crime?”6 The law would not tolerate the despotism of the state any more than it would the despotism of the parent. “The principle of the absorption of the child in, and its complete subjection to the despotism of, the State,” the court stated, “is wholly inadmissible in the modern civilized world.”7 The Supreme Court of Illinois ordered Daniel to be discharged, concluding that the confinement statute, which, in its view, made crimes of misfortunes, was hopelessly vague and deprived children of the most basic due process protections.8

Though Turner would prove to be an outlier, it gained notoriety as compulsory education statutes strengthened state authority over the child. The state had placed Daniel in a reform school. It was a different—if, to its opponents, no less sinister—type of schooling that made Turner a case of national interest. For it could be argued that the case's natural law principles applied equally to compulsory school attendance laws. Indeed, the argument was made, and forcefully so, by the notable jurist Isaac Redfield, a former chief justice of the Vermont Supreme Court, whose highly enthusiastic appraisal of Turner appeared in the American Law Register. For Redfield, compulsory public education was a battleground on which were arrayed two great forces. On one side were those who thought that compulsory education was no more than a form of confinement without due process. On the other side were the forces of reform, whose purpose was “to erect an empire, superior both in character and power to any other, ancient or modern.” The hope of the reformers, as Redfield saw it, was to mold a country of diverse nationalities and discordant political and religious viewpoints “into one homogeneous compound of purity and perfection,” and one of the “foundation stones” of this progressive empire was to be compulsory education. He applauded the Turner court “as striking at the very root and life of one (p.96) of the most favorite schemes of reform known to the present age; what is called in popular language, legislative moral reform and compulsory public education.”9

Redfield thought that Turner had struck the reformers “a fatal blow at the very foundation of their entire superstructure.” His commentary was as colorful as it was hyperbolic. “[T]his decision projects a fatal shaft, which has entered between the very joints of the harness of the most impregnable armor [of the reformers],” Redfield wrote. Such a decision “must, if maintainable, penetrate into the most vital parts of its most indispensable machinery.” Once the progress of the empire builders was stopped, all men would be “free to keep their own children at home, and educate them in their own way.” This would be “a very wonderful advance in the way of liberty.”10

One of Redfield's objections to compulsory education measures was that the purity and perfection of reformist schemes had a decidedly Protestant bias. The “non-sectarian” moral majoritarianism of the common schools, he claimed, evinced an “ominous squint” toward Catholic children.11 True moral reform, Redfield argued, had to begin, and stay, at home. It was bred from within the domestic empire of the family, where children could be trained from earliest infancy to follow the dictates of private authorities: “[A]ll hopeful and reliable moral reforms must be looked for only in a high degree of religious faith and culture, from earliest infancy; and … this cannot be expected to come from the common schools, or the reform schools, or any other schools; but exclusively or mainly from family training, and from the authoritative teaching of the church and her ministers, in the daily discipline of a devout and holy life.” What Redfield called “text-book-training” would not help children, he claimed, “but rather the contrary.” It would lead children to “vain conceit and imperfect comprehension, and the attempt in all classes to handle things which are too high for them.”12 For the educational utopia sought by misguided reformers, Redfield would substitute the pristine setting of the family, a domestic paradise (without low-hanging and farreaching temptations) where children could be trained by reliable moral authorities. It may be true, as Tanenhaus contends, that Turner is “the first modern children's rights case,”13 but Redfield's commentary should be a reminder that what, for the adult, may appear to be a step (p.97) forward—an expansive independence from state authority—might be, for the child, little more than a step backward toward complete dependence on private authorities; what appears to be the child's right might do little more than replace one paternalistic threat with another.

Redfield's commentary did not go unnoticed by courts considering similar cases. In 1876, in Milwaukee Industrial School v. Supervisor of Milwaukee County,14 the Wisconsin Supreme Court reviewed the constitutionality of a state statute that allowed children to be transferred from the Milwaukee Poorhouse to the Milwaukee Industrial School. The objection to the law was that it operated as an imprisonment without due process of law. Thus, Turner was on point. The Wisconsin court was struck “so forcibly” by the views of Redfield (“that great jurist and gifted man”) that, to begin its opinion, it borrowed his picture of a country at war with itself:

We live in a time of inquiry and innovation, when many things having the sanction of time are questioned, and many novelties jarring with long accepted theories are proposed. In political science, there are those who would reduce government to a mere skeleton of absolutely necessary powers, purely political; and those who favor paternal government, recognizing in the sovereignty much of the authority of patriarchal rule. All this is seen chiefly in political discussions; but the late reports show that these conflicting theories are finding their way into judicial tribunals.

Though the court shared Redfield's distrust of theories that, under the name of reform, tended “to substitute the authority of the state, as parens patriae, for parental authority and domestic discipline,” it upheld the Wisconsin statute for several reasons. First, the court distinguished between commitment and imprisonment. Parental authority often implies some form of restraint. To secure the welfare of children, the state, acting as parens patriae, was compelled at times to use its “parental” authority to restrain. Second, under the Wisconsin statute, the state assumed this authority only upon “the total failure” of the parent to provide for the child. The Turner court had been troubled by the broad sweep of the state's authority to detain children on (p.98) the basis of ignorance, idleness, and vice. The commitment criteria of the Wisconsin statute, in contrast, were adequately respectful of the primary caretaking role of the family. The court found it difficult “to comprehend the right of a parent to complain that the discharge by the state of his own duty to his child, which he has wholly failed to perform, is an imprisonment of the child as against his parental right in it.” Third, the court read the statute “not to foreclose the right of a parent, when competent, to resume the custody and care of his child.” Under the statute, the parent's right to custody would be restored upon a showing that “the disability or default on which the child's commitment proceeded was accidental or temporary, and no longer exists.” With these protections in place, there was no reason to fear that Wisconsin's commitment statute was a step on the road to the absorption of the child in, and its complete subjection to, the despotism of the state.15

When Illinois revised its commitment statute, it was more attentive to children's rights. In the case In re Ferrier (1882),16 the Illinois Supreme Court again considered a statute allowing dependent children to be committed to a suitable industrial school. The court hastened to point out that the statute was drafted with “anxious provision” for the protection of due process. Like the court in Milwaukee Industrial School, the Illinois Supreme Court rejected the notion that confinement must mean punishment. The Industrial School for Girls was not a prison, it declared, but a school, “and the sending of a young female child there to be taken care of, who is uncared for, and with no one to care for her, we do not regard [as] imprisonment.” Some restraint was essential to the proper education of children; thus, commitment statutes were “in no just sense an infringement of the inherent and inalienable right to personal liberty.”17

The Ferrier court took pains to justify its jurisdiction over cases involving dependent children. Its power to commit children to proper placements outside the family was “but of the same character of the jurisdiction exercised by the court of chancery over the persons and property of infants, having foundation in the prerogative of the Crown, flowing from its general power and duty, as parens patriae, to protect those who have no other lawful (p.99) protector.” In describing the scope of its authority, the court, echoing Story, restated the basic features of the trust model of parentchild relations:

[The court's] jurisdiction extends to the care and person of the infant, so far as is necessary for his protection and education, and upon this ground that court interferes with the ordinary rights of parents in regard to the custody and care of their children, for although, in general, parents are intrusted with the custody of the persons and the education of their children, yet this is done upon the natural presumption that the children will be properly taken care of, and will be brought up with a due education. But whenever this presumption is removed, and the parent is grossly unfit and fails in this respect, the court of chancery will interfere, and deprive him of the custody of his children, and appoint a suitable person to act as guardian, and to take care of them, and to superintend their education.18

The rights of the parent, according to the court (following Blackstone), are ordinary rights, an aspect of civil, not natural, liberty. Of course, the state may impose “restrictions … upon personal liberty.” The very survival of society depends upon it: “The right to liberty which is guaranteed is not that of entire unrestrainedness of action. Civil government in itself implies an abridgment of natural liberty.” As does the survival of the child. Restrictions on the personal liberty of parents “spring from the helpless or dependent condition of individuals in the various relations of life, among them being those of parent and child, guardian and ward, teacher and scholar.” These “are legal and just restraints upon personal liberty which the welfare of society demands.” And, citing Cooley, the court concluded they “entirely consist with the constitutional guaranty of liberty.”19

Newton Bateman was unperturbed by the outcome of O'Connell v. Turner. As the superintendent of public instruction of the state of Illinois and a leading champion of compulsory school attendance laws, Bateman was well aware that the natural law footing of the Turner decision could be (p.100) relied upon, as he wrote, “by those who deny the competency of a legislature to meddle with the question of school attendance.” In his report of 1872 on the condition of Illinois' free school system, Bateman struck a glancing blow at Judge Redfield's commentary on the case. The logic of Redfield's argument, Bateman wrote, swept too broadly: It not only demonstrated the unconstitutionality of compulsory school attendance laws, but “even create[d] a doubt of the power of the legislative department to establish and maintain a system of free schools!”20

Bateman turned Turner upon itself. He was fully prepared to support the notion that deprivation of liberty without due process violated “the inherent and inalienable right of all men to their personal liberty.” In Bateman's view, though, there was no comparison between Daniel O'Connell's confinement and compulsory school attendance. In fact, Bateman himself used the idea of inherent rights, employing the higher law language of the Turner court to declare that “education is a natural and inalienable right” of every child; it is, he asserted, with a familiar rhetorical flourish, “a right independent of all human laws and regulations; higher than constitution and law; and … it should be held forever sacred.” The appeal to natural law was thus a double-edged sword, capable of being wielded by both sides in the war of educational reform. “We believe that the same bill of rights which so firmly buttresses the opinion of the [Turner] court,” Bateman declared, “is also the impregnable bulwark of our position.” Among the inherent and inalienable rights of children, Bateman found “not only ‘life, liberty, and the pursuit of happiness,’ but education, also.”21

In this contest for a natural law imprimatur, neither side would prevail. Bateman would not get a declaration that education is a fundamental right.22 But the Supreme Court has clearly stated that public education is more than some mere “governmental ‘benefit’ indistinguishable from other forms of social welfare legislation.” The distinction, according to the Court, is marked by “the importance of education in maintaining our basic institutions, and the lasting impact of its deprivation on the life of the child.”23 For his part, Redfield would be disappointed by continued state restrictions on parental authority, though no doubt pleased with the ruling of the Milwaukee (p.101) Industrial and Ferrier courts that due process requires proof of parental unfitness before the state can assume custody of a child (and no doubt very pleased to learn that the modern Supreme Court has confirmed that termination of parental rights must be premised on a clear and convincing showing of unfitness). Turner did not project a fatal shaft at state efforts to regulate child welfare.24 But it was, clearly enough, a warning shot, putting the state on notice that the battle had been engaged. The reformers would win the day: Compulsory education statutes would be adopted by all states. Yet, as Turner reminds us, the armor of the “child savers” was not impregnable.

Whose Education Is It, Anyway?: Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925)

The Pierce Court famously pronounced that the child is not the mere creature of the state. It is a peculiarly understated proposition, seemingly defensive in its negative assertion. When Pierce is set against a tradition of cases that support a trust model of parentchild relations, however, the Court's carefulness makes good sense. For the courts had said time and again that the child is “primarily a ward of the state.”25 Meyer and Pierce have been read to affirm the fundamental nature of parental rights, but, in fact, they stand for a much more modest proposition: that the state does not have exclusive authority over the child's education, or, more particularly, that the state cannot prohibit parents from teaching their children subject matter outside the scope of a state-mandated curriculum or from teaching them outside the public school system.26

There was nothing new in the alarm that the state was claiming exclusive control of education. The mid-nineteenth century had witnessed a protracted and, at times, even violent struggle to decide the fate of public school funding.27 Protesting that the common schools had “assumed the exclusive right of monopolizing the education of youth,” Catholic leaders argued that the purportedly secular education provided by the schools was really instruction in the “sectarianism of infidelity.” They warned that state control of education would lead to even more ominous monopolies:

(p.102) Should the professors of some weak or unpopular religion be oppressed today, the experiment may be repeated tomorrow on some other. Every successful attempt in that way will embolden the spirit of encroachment and diminish the power of resistance; and, in such an event, the monopolizers of education, after having discharged the office of public tutor, may find it convenient to assume that of public preacher. The transition will not be found difficult or unnatural from the idea of common school to that of a common religion.28

The Catholics lost this battle, but the war against “the monopolizers of education” would remain a hotly contested one. In the curricular requirements cases, opponents of state-controlled education took a more targeted approach. We have seen that some courts tried to swing the pendulum of educational authority back to the parent. The Wisconsin Supreme Court asked, “Whence, we again inquire, did the teacher derive this exclusive and paramount authority over the child, and the right to direct his studies contrary to the wish of the father?”29 In these cases, though, the state was not prohibiting parents from teaching their children subject matter beyond that required by the state, or prohibiting parents from teaching their children outside the public school setting. This is precisely what the state tried to do in Meyer and Pierce. In Meyer, the state had prohibited the teaching of modern foreign languages to children in the primary grades of all schools, public and private. (The state statute also had imposed restrictions on the use of a foreign language as a medium of instruction.) In effect, the state was claiming the authority to establish a curricular monopoly, at school and, as a practical matter perhaps, at home. In Pierce, the monopoly demanded by the state was institutional. The state wanted to prohibit private schooling for children between the ages of eight and sixteen. In both cases, the concern, broadly stated, was whether the state had “carr[ied] the doctrine of governmental paternalism too far.”30 But regardless of its allusion to fundamental rights,31 the Court did not declare a general parental right to direct the education of children. Indeed, it decidedly declined the invitation to embrace (p.103) a spacious, natural rights position in support of parental authority, walking instead in the well-worn path of basic trust tenets.32

As David Upham writes, the Court “indicated that the right to direct a child's education results not from a natural familial relation, but simply as a necessary concomitant to the power of custody, however defined and assigned. For the Court, it was not natural parenthood that gave both custodial and educational rights; it was custodial power—whether resulting from biology, positive law, or otherwise—that gave educational rights.”33 What the Court did acknowledge, in Meyer (and its companion cases),34 was the right to teach something in addition to what the public schools required, and, in Pierce, “the right of parents to provide an equivalent education in a privately operated system.”35 More particularly, neither Meyer nor Pierce rejected the government's authority to enforce and regulate the parental duty to educate. The Meyer Court did not question the authority of the state “to compel attendance at some school and to make reasonable regulations for all schools, including a requirement that they shall give instructions in English.” In Pierce, the Court remarked that the case raised no question “concerning the power of the state reasonably to regulate all schools.” The question that these cases considered is how far the state can go in dictating what the parent can and cannot do.36

Meyer teaches that the state may not set up a standard of education for children and prohibit any additional instruction. The Court's reasoning was based on the arbitrariness of the language prohibition. The state had argued that the statute would have a salutary effect on children that “‘outweighed the restriction upon the citizens generally, which, it appears, was a restriction of no real consequence.’”37 The Court asked, however, not what good the statute would do, but what harm it might prevent. It answered that the mere knowledge of a foreign language could not reasonably be regarded as clearly harmful. Thus, in proscribing foreign language instruction in private schools, the legislature had exceeded its police powers, and in so doing, it had infringed “rights long freely enjoyed,” including the right to supplement the state's educational prescriptions.38 (Privately, Chief Justice William Howard Taft confirmed the limited reach of the Court's assertion of (p.104) parental rights. He wrote that Meyer, though it does not prevent the state from regulating private schools, “does prevent the Legislature from forbidding a parent to employ a private school or a private school teacher to teach his child any subject matter which is not in itself vicious.”)39 If there is a fundamental right at stake in Meyer, it is the right of the parent “after he has complied with all proper requirements by the state as to education, to give his child such further education in proper subjects as he desires and can afford.”40

This is the narrow entitlement for which Arthur F. Mullen, on behalf of Robert Meyer, argued before the Court. Mullen was careful to concede that the state, under its police power, could enforce curricular requirements. But this was as far as he was prepared to go: “I do not concede for a moment that the legislature has the power, when we comply with the curriculum of study prescribed by the State, to deny us the right to teach a foreign language as an optional subject.” What the plaintiff in error wanted was the “right to teach these foreign languages and other branches in addition to the curriculum required by the public schools.”41 (The plaintiff in error, who was a teacher at a parochial school, had framed the case as implicating his due process rights to pursue a calling and to enter into contracts. Here, as in Pierce, the parents of schoolchildren were not parties to the litigation.42 But the Court took a broader view of the interests at stake: “Evidently the Legislature has attempted materially to interfere with the calling of modern language teachers, with the opportunities of pupils to acquire knowledge, and with the power of parents to control the education of their own.”)43 If such teaching did not disrupt the required curriculum, Mullen argued, there was no sound reason under the police power to prohibit it:

The only objection they can make to the teaching of foreign languages in a private or parochial school is this: I can conceive that if it was done in such a way as to interfere with the regular course of study, there might be reasonable objection to it. But when we get above the minimum requirements in our State, qualifications of teachers, equipment, and everything else, it is none of the state's business what we teach the child, so long as we do not teach it

(p.105) sedition, or something of that kind. We have a right to teach any useless or harmless study—gymnastics, dancing, or anything else; and languages as well as anything else; because there is nothing inherently bad about learning a foreign language.44

Central to Mullen's argument was the question of whether the statute merely regulated or actually proscribed the teaching of foreign languages. This distinction between the power to regulate and the power to destroy was a standard feature of due process cases.45 Though, as the Court conceded, regulation may be proper where there is “abuse incident to an occupation ordinarily useful,” abolition requires more: some sort of emergency, in fact.46 This point was doubly important because Oregon's recent enactment of a statute prohibiting private schooling for the primary grades was clearly a secondary object of the Meyer Court's deliberations. Before the Court, and at the virtual invitation—indeed, insistence—of Justice James Clark McReynolds, Mullen put forward a slippery slope argument: that the elimination of foreign language teaching would inevitably lead to the abolition of private schools.47

Both sides agreed that teaching children while they were young was the key to educational success. The state argued that the law was regulatory in character, pointing to the fact that the statute did not “forbid the use of foreign languages by persons of maturity or prevent the study of foreign languages by persons who have passed the eighth grade.” The purpose of the law was not to prohibit foreign language instruction, but “to prevent children reared in America from being trained and educated in foreign languages and foreign ideals before they have had an opportunity to learn the English language and observe American ideals.” The state's interest was based on the “well known fact that the language first learned by a child remains his mother tongue and the language of his heart.” By forcing children to wait until they passed the eighth grade, the law worked “to insure that the English language shall be the mother tongue and the language of the heart of the children reared in this country who will eventually become the citizens of this country.”48 For Nebraska, both educational success (learning the English language) and civic success (learning the language of the (p.106) American heart) were well within the state's police powers and superior to the rights of the parent:

If it is within the police power of the state to regulate wages, to legislate respecting housing conditions in crowded cities, to prohibit dark rooms in tenement houses, to compel landlords to place windows in their tenements which will enable their tenants to enjoy the sunshine, it is within the police power of the state to compel every resident in Nebraska to so educate his children that the sunshine of American ideals will permeate the life of the future citizens of this republic. A father has no inalienable constitutional right to rear his children in physical, moral or intellectual gloom.49

Mullen fully accepted the state's pedagogical premises. However, artfully drawing upon Pharaoh's edict to the Hebrews to make bricks without straw,50 he countered that because the law prohibited children from studying a foreign language “when they are most impressionable,” it amounted to a total abolition of foreign language instruction. Mullen reasoned, “[I]t is more difficult for a child to learn a language after it gets into high school than it is in the lower grades; and [the statute's] purpose is to discourage the study of foreign languages; that is the only theory upon which it was enacted.”51

The Court found that the statute was a prohibition flatly denying parents the right to supplement the mandated curriculum. It would require some “adequate foundations” to justify a blanket ban on foreign language teaching; otherwise, the state law was without “reasonable relation to any end within the competency of the State.” Two years later, the Pierce Court would similarly find that private schools were not harmful; that the result of enforcing the state legislation would be their destruction; and, finally, that there were no interests sufficient to justify the state's exclusive institutional control of the child's education.52

If the doctrinal results of Meyer and Pierce were modest, the same cannot be said of the Court's rhetoric. The Court's homage to “rights long freely enjoyed” was as much an anxious response to the prospect of a liberty-denying (p.107) future as it was an accurate picture of a liberty-protecting past.53 The shadow of socialist childrearing was never far from the legal debate.

In 1922, when the voters of Oregon approved an initiative mandating public education, it became clear that the Supreme Court would enter the fray. The next year, in Meyer, the law professor William Dameron Guthrie filed an amicus brief specifically to address the Oregon compulsory public school law. Guthrie described the Oregon act as “a revolutionary piece of legislation,” evoking images of Bolshevik menace:

It adopts the favorite device of communistic Russia—the destruction of parental authority, the standardization of education despite the diversity of character, aptitude, inclination and physical capacity of children, and the monopolization by the state of the training and teaching of the young. The love and interest of the parent for his child, such a statute condemns as evil; the instinctive preferences and desires of the child itself, such a law represses as if mere manifestations of an incorrigible or baneful disposition.54

The law was not only communistic; perhaps worse, it was Platonic. Guthrie deplored “[t]he notion of Plato that in a Utopia the state would be the sole repository of parental authority and duty and the children be surrendered to it for upbringing and education.”55 Likewise, on behalf of the defendants opposing Nebraska's language prohibition, Mullen had portrayed the case as one about “the power of a legislative majority to take the child from the parent.” This, he warned, was “the principle of the soviet.”56 (Proponents of compulsory public schooling could also play the communist card. In Pierce, the state argued that “[i]f the Oregon School Law is held to be unconstitutional, it is not only a possibility but a certainty that within a few years the great centers of population in our country will be dotted with elementary schools which instead of being red on the outside will be red on the inside.”)57

It was strong rhetoric—and it was effective. Striking down Nebraska's foreign language prohibition, Justice McReynolds followed, and bettered, (p.108) Guthrie's dislike of classical models of education. He compared the language prohibition statute to the communistic parenting measures of ancient Sparta (“In order to submerge the individual and develop ideal citizens, Sparta assembled the males at seven into barracks and intrusted their subsequent education and training to official guardians”) and Plato's Republic (“[T]he wives of our guardians are to be common, and their children are to be common, and no parent is to know his own child, nor any child his parent”). For the Court, such measures rested on an allocation of educational control wholly at odds with the letter and spirit of the Constitution.58

Then, in 1925, the Supreme Court struck down Oregon's compulsory education law, finding that it “unreasonably interfere[d] with the liberty of parents and guardians to direct the upbringing and education of children under their control.” Again writing for the Court, Justice McReynolds made the case one about the power of the state “to standardize its children by forcing them to accept instruction from public teachers only.” Thus his declaration that “[t]he child is not the mere creature of the State.”59 His antistatist fervor on high display, McReynolds drafted what the Supreme Court, in Wisconsin v. Yoder (1972), would cast as “a charter of the rights of parents to direct the religious upbringing of their children.”60

Yet these cases are hardly a “ringing endorsement of religious freedom and of limited government dominion over citizens.”61 Concerned that the state was assuming “the paternal character altogether,” the Court, its rights rhetoric notwithstanding, sustained only the limited proposition that neither parent nor state enjoyed absolute authority over the child. And even if Meyer and Pierce were doctrinally more ambitious, reliance on them would pose a difficulty for supporters of parental rights. Meyer and Pierce required only that the state not restrict the right to parent—or more precisely, the right of parents to direct the education of their children—unreasonably or arbitrarily. In other words, the Court applied a reasonableness test, not the strict scrutiny that today is afforded to fundamental rights.62 To be sure, Meyer and Pierce were decided before the Supreme Court had delineated degrees of constitutional scrutiny, but the reasonableness standard of these early due process cases shows little of the rigor of heightened review.63

(p.109) For parentalists who view judicial activism with suspicion, the comfort offered by Meyer and Pierce is especially cold. For these are substantive due process cases, decided at the height of the Court's constitutional campaign against “unreasonable” social and economic regulations. This was a wide-open judicial crusade, little less than a call to change “the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people.”64 For Lochner's author, Justice Rufus Peckham, the seventeenth and eighteenth centuries—and here his history is not far from the mark—were a time “when views of governmental interference with the private concerns of individuals were carried to the greatest extent.”65 Modern times, however, called for a modern jurisprudence. While for Blackstone the due process right of liberty “consists in the power of locomotion, of changing situation, or removing one's person to whatsoever place one's own inclination may direct,”66 the Meyer Court would not be so restrained, declaring that the liberty guaranteed by the Fourteenth Amendment denotes much more than mere freedom from bodily restraint.67 Whatever due process denotes, the freedom that Meyer and Pierce establish is entirely dependent on court-created rights. (This point is not lost on parental rights advocates. Consider the concern voiced by Michael Farris, the founder of the Home School Legal Defense Association: “In short, Scalia believes that no right is protected unless it is expressly stated in the text of the Constitution. While most of us like this theory if it is used to reverse Roe v. Wade, we would be quite alarmed if parental rights were suddenly no longer a protected constitutional right.”)68 Thus, the right to parent, as far as the cases establish one, stands on the same constitutional footing as the rights to use contraception, to terminate a pregnancy, or to engage in consensual homosexual sodomy. For that matter, the right to parent as a matter of due process stands on the same footing as the right of a minor to use contraception or to terminate a pregnancy without parental consent or notification.69 Though the antistatist sentiment of Meyer and Pierce would long resonate with those seeking a fundamental right to parent, the reality is that these cases, and their resurrection in the modern era of substantive due process, give advocates of parental rights good reason to be careful with their constitutional wishes.

(p.110) Rights, Responsibilities, and Religion: Wisconsin v. Yoder (1972) and Hybrid Rights

Wisconsin v. Yoder is by all measures an odd case. Its facts are, to borrow a word that echoes throughout the decision, idiosyncratic. Its reasoning is a strange brew of romantic projection and conscious self-deception, something akin to infatuation from a court old enough to know better. Its holding is uncertain; it is limited to the facts of the case, yet it has been a steady prop for those seeking religious exemptions from generally applicable law. And though its legacy is tied to the doctrine of hybrid rights, it is not clear why the Court bothered with such a creation. Or even whether it did.

It is clear that the Yoder Court, on the unique set of facts before it, repudiated the trust model of parentchild relations. Whereas the Court's seminal parenting cases established a due process right to direct the upbringing of children, Yoder grants much more authority than the word “direct” suggests. It gives religious parents a right to control the upbringing of their children, and to do so by keeping them cut off from foreign ideas and influences. Yoder goes well beyond the rule of Pierce that state educational regulation must “yield to the right of parents to provide an equivalent education in a privately operated system.” The Amish parents refused to send their children to secondary school altogether. Like Meyer and Pierce, Yoder reflects a deep disquiet about the state's power to influence its children, but, really, here the Court sought to protect a religious community from nonstate forces. Secondary schooling, the Court stated, would bring “[t]he Amish mode of life … into conflict increasingly with requirements of contemporary society exerting a hydraulic insistence on conformity to majoritarian standards.”70 To secure this way of life from the (hydraulic?) pressures of modernity, Yoder granted a particular group of religious parents not just the right to supplement the state-mandated curriculum (Meyer did that) or the right to choose a private educational option (Pierce did that), but an outright exemption from the fiduciary responsibility to prepare young people for the “additional obligations” of adult life. Yoder is itself the charter of religious parenting rights it levies upon precedent.

The Yoder Court made a heavy analytical investment in the Amish way of life. The Court considered a claim that Wisconsin's compulsory secondary (p.111) school attendance law violated the Free Exercise Clause. The case was brought by members of the Old Order Amish congregation, who believed that “their children's attendance at high school, public or private, was contrary to the Amish religion and way of life.” By sending their children to high school, Amish parents “would not only expose themselves to the danger of the censure of the church community, but … also endanger their own salvation and that of their children.” The Amish way of life, the Court noted, is centered on “a fundamental belief that salvation requires life in a church community separate and apart from the world and worldly influence. This concept of life aloof from the world and its values is central to their faith.” As the Court saw it, the entire Amish way of life and education is inseparable from the basic tenets of the community's faith—”indeed, as much a part of their religious belief and practices as baptism, the confessional, or a Sabbath may be for others.” A related feature of Amish life is the community's “devotion to a life in harmony with nature and the soil.” A deep reverence for things natural, the Court opined, “require[s] members of the community to make their living by farming or closely related activities.”71

From these core beliefs arose the Amish objection to secondary schooling. Education beyond the eighth grade would involve “impermissible exposure” to worldly influences in conflict with Amish values: “The high school tends to emphasize intellectual and scientific accomplishments, self-distinction, competitiveness, worldly success, and social life with other students. Amish society emphasizes informal learning-through-doing; a life of ‘goodness,’ rather than a life of intellect; wisdom, rather than technical knowledge; community welfare, rather than competition; and separation from, rather than integration with, contemporary worldly society.” Beyond the threat that high school would bring “pressure to conform to the styles, manners, and ways of the peer group,” secondary schooling would take the Amish children “away from their community, physically and emotionally, during the crucial and formative adolescent period of life”:

During this period, the children must acquire Amish attitudes favoring manual work and self-reliance and the specific skills needed to perform the adult role of an Amish farmer or housewife. They must learn to enjoy physical labor. Once a child has learned

(p.112) basic reading, writing, and elementary mathematics, these traits, skills, and attitudes admittedly fall within the category of those best learned through example and “doing” rather than in a classroom. And, at this time in life, the Amish child must also grow in his faith and his relationship to the Amish community if he is to be prepared to accept the heavy obligations imposed by adult baptism. In short, high school attendance with teachers who are not of the Amish faith—and may even be hostile to it—interposes a serious barrier to the integration of the Amish child into the Amish religious community.72

At the outset of its analysis, the Court acknowledged “‘the power of a State, having a high responsibility for the education of its citizens, to impose reasonable regulations for the control and duration of basic education.’” To this extent, the Court adhered to the reasoning and reach of Meyer and Pierce. Yet even this “paramount responsibility,” the Court continued, must be balanced against any impingement on fundamental rights and interests. Where compulsory education interferes with religious belief and practice, the state must demonstrate an interest “of sufficient magnitude to override the interest claiming protection under the Free Exercise Clause.” The great question, then, is, what magnitude is sufficient to override a challenge brought under the Free Exercise Clause?73

The Court settled on a strict scrutiny standard—sort of. Only interests of “the highest order” would be of sufficient magnitude. The Court relied on Sherbert v. Verner (1963), which had concluded that “no showing merely of a rational relationship to some colorable state interest would suffice” to overcome a challenge under the Free Exercise Clause.74 But Sherbert did not deal with the scope of parental authority. Perhaps this is why the Court felt the need to strengthen the constitutional footing on which it set the right of the Yoder parents. For whatever reason, the Court declared that it would apply strict scrutiny “when the interests of parenthood are combined with a free exercise claim of the nature revealed by this record.” This combined right may be limited only “if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant (p.113) social burdens.” (Yoder's strict scrutiny standard, it should be noted, has two prongs, one directed toward the child and one toward society at large. The latter prong has been all but forgotten.)75

The Yoder Court was confronted with two relevant lines of cases: The Due Process Clause protected the right to parent, which included the right to direct the upbringing and education of the child, and the Free Exercise Clause guaranteed religious freedom. But neither line offered complete protection for religious parenting rights. The Court did rely on Meyer and Pierce, but these cases had involved “nothing more than the general interest of the parent in the nurture and education of his children.” Pierce may stand, as the Court declared, as a charter of the right of parents to direct the religious upbringing of their children; nonetheless, it is a charter of parenting, not religious, rights, and where nothing more is involved, the Yoder Court stipulated, “it is beyond dispute that the State acts ‘reasonably’ and constitutionally in requiring education to age 16 in some public or private school meeting the standards prescribed by the State.” A parenting claim by itself would not outweigh the state's interest in universal compulsory education.76

Moreover, the Supreme Court's parenting cases had made the right to direct the upbringing of children contingent on the parental duty to provide children with a proper education. The state's high responsibility may be made to yield to a parent's right to choose private schooling, but, the Yoder Court granted, private schooling must provide an equivalent education to that of the public system. Meyer and Pierce had established that the state “may not preempt the educational process,” but Yoder presented the Court with difficult facts. The Amish parents themselves were asserting a personal right to preempt the educational process.

Writing for the Court, Chief Justice Warren Burger had good reason not to rely too heavily on the Due Process Clause. Only two months before, he had inveighed against the Court's willingness to strike down state legislation on substantive due process grounds. His dissent in Eisenstadt v. Baird (1972) admonished the Court for “seriously invad[ing] the constitutional prerogatives of the States and regrettably hark[ening] back to the heyday of substantive due process.” Burger drew attention to the fact that (p.114) the Massachusetts state law at issue, which restricted the distribution of contraceptives to unmarried persons, merely regulated but did not ban the use of contraceptives:

I see nothing in the Fourteenth Amendment … that even vaguely suggests that these medicinal forms of contraceptives must be available in the open market. I do not challenge Griswold v. Connecticut … despite its tenuous moorings to the text of the Constitution, but I cannot view it as controlling authority for this case. The Court was there confronted with a statute flatly prohibiting the use of contraceptives, not one regulating their distribution. I simply cannot believe that the limitation on the class of lawful distributors has significantly impaired the right to use contraceptives in Massachusetts. By relying on Griswold in the present context, the Court has passed beyond the penumbras of the specific guarantees into the uncircumscribed area of personal predilections.77

Now writing for the majority, Burger refused to strike down, as a violation of due process, a state compulsory education law that merely regulated secondary education, unlike the statute in Pierce, which flatly prohibited private schooling. Besides, the prospect that any parent, for reasons however virtuous, could displace the educational regime on due process grounds alone was surely an unacceptable outcome. Parenting concerns could then be interposed as a barrier to reasonable state regulation of education even if they were based on purely secular considerations. The Court knew too well that “the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests.”78 It was not about to give a constitutional pass to the Henry David Thoreaus of the world.79

But why not resolve Yoder solely on free exercise grounds? The Court accepted it as settled that “only those interests of the highest order … can overbalance legitimate claims to the free exercise of religion.”80 In fact, the Yoder parents had not made any due process claims arising from the Fourteenth Amendment. Their case was based on the Free Exercise Clause (p.115) standing alone.81 Yet the Court devoted little attention to cases based on the Free Exercise Clause, perhaps because there was little case law to which it could be devoted and perhaps because what case law existed was of little help. The controlling case, as the state argued, was Prince v. Massachusetts, and the Yoder Court was well aware that Prince “might be read to give support to the State's position.”82

The Yoder Court confined Prince to a narrow scope, as it had to. The Court said that prior decisions had limited Prince to circumstances involving “harm to the physical or mental health of the child or to the public safety, peace, order, or welfare.”83 This reading of the case law is questionable (What threat to the public welfare makes Sunday closing laws constitutional?),84 and it only begs the question of whether such harm could be inferred from the refusal to comply with compulsory education laws. In concluding that it could not, the Yoder majority simply read the children out of the case.

The state offered two justifications for compulsory secondary schooling, both of which addressed the educational welfare of the child: (1) “that some degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system if we are to preserve freedom and independence,” and (2) that “education prepares individuals to be self-reliant and self-sufficient participants in society.”85 While the Court accepted these propositions in general, it disagreed that secondary education would do much good for Amish children. If the value of education “must be assessed in terms of its capacity to prepare the child for life,” the Court insisted, “[the Amish] alternative mode of continuing informal vocational education”—by which the Court meant, of course, no schooling at all—was equivalent to the schooling mandated by the state: “It is one thing to say that compulsory education for a year or two beyond the eighth grade may be necessary when its goal is the preparation of the child for life in modern society as the majority live, but it is quite another if the goal of education be viewed as the preparation of the child for life in the separated agrarian community that is the keystone of the Amish faith.”86

Here, the Court misrepresented the goals of the state by equating them to the choices made possible by state-mandated education. The task of the state as educator is not to prepare a child for life in a separatist religious (p.116) community, nor is it to prepare a child for life in modern society as the majority live. As the state of Wisconsin argued, education is the instrument that prepares young people to participate meaningfully in society, even if this participation takes the form of a choice not to live in modern society as the majority live.87 It may well be that “[t]he Amish alternative to formal secondary school education has enabled them to … survive and prosper in contemporary society as a separate, sharply identifiable and highly self-sufficient community,” but such separatist success is hardly “strong evidence they are capable of fulfilling the social and political responsibilities of citizenship without compelled attendance beyond the eighth grade.”88 The common law obliged parents to provide “an education suitable to the child's station in life.”89 The Yoder Court read this proviso with remarkable illiberalism. It concluded that the Amish way of life was itself an education suitable for children who were destined to live … the Amish way of life.

Because the children were not parties to the litigation, the Court was not called upon to determine “the proper resolution of possible competing interests of parents, children, and the State.”90 But it left little doubt as to how it would resolve such a conflict:

Recognition of the claim of the State in such a proceeding would, of course, call into question traditional concepts of parental control over the religious upbringing and education of their minor children recognized in this Court's past decisions…. Indeed it seems clear that if the State is empowered, as parens patriae, to “save” a child from himself or his Amish parents by requiring an additional two years of compulsory formal high school education, the State will in large measure influence, if not determine, the religious future of the child. Even more markedly than in Prince, therefore, this case involves the fundamental interest of parents, as contrasted with that of the State, to guide the religious future and education of their children.

If the state's argument was that “exemption of Amish parents from the requirements of the compulsory education law might allow some parents to (p.117) act contrary to the best interests of their children by foreclosing their opportunity to make an intelligent choice between the Amish way of life and that of the outside world,” then the same argument could be made “with respect to all church schools short of college.” (A curious concern this, considering the Court's contention that the Amish community was uniquely qualified to provide an alternative mode of education that satisfied the state's interests.) This argument suggested that parents generally ought to consult with their minor children before making a church-school placement, and this suggestion was too much for the Court.91

Yet it was equally too much for the Court to hold that parents generally ought to be allowed to foreclose their children's educational opportunities. The Court's sociological discursions were analytically necessary because it was going to grant the Amish, and only the Amish, a constitutional release from the Lockean duty to bring their children to a state of educational enfranchisement. The radical open-endedness of such a step had to be countered by an equally complete closure of this fiduciary loophole. So the Amish model of informal vocational education met precisely the educational interests advanced by the state. If predestined to live in a separated agrarian community, Amish children do not need secondary education. If Amish children decide to leave the church, their agricultural training and habits of industry and self-reliance will keep them from becoming a burden on the state. One way or the other, a democratic society will always find use for more sturdy yeomen.92

It is not unusual for the Court to limit a holding to the facts before it, refusing to speculate about future applications of problematic doctrine. The Prince Court took this approach to its declaration that “the family itself is not beyond regulation in the public interest, as against a claim of religious liberty.” The Yoder Court went a step further, solidifying its holding by anticipating that “probably few other religious groups or sects” could make the showing necessary to secure an Amish-type exemption.93 Wisconsin's compulsory education statute was a burden for reasons peculiar to one religious sect: an entire way of life inextricably bound to religious belief, the continued survival of a long-established and self-sufficient agrarian community, an informal mode of vocational education that precisely parallels (p.118) state interests, etc. Strict scrutiny is required “when the interests of parenthood are combined with a free exercise claim of the nature revealed by this record.”94 It is also not unusual for the Court to make law that, in effect, benefits (or burdens) a specific religious group, but in such cases the law will have, if only in theory, a general application. It is a strange business for the Court to make what amounts to private constitutional law. By subjecting restrictions on religious parenting—or, at least, one subset of religious parenting—to strict scrutiny, the Yoder Court presided over the creation of a separate sphere of the law where some individuals enjoy a private right to be exempted from generally applicable civic obligations.

On its own terms, then, Yoder is essentially sui generis.95 Yet, practically, the Court did more than rescue Amish parents from state educational requirements. In a real sense, under Yoder, parenting did at last become a sacred right. The heightened status of religious parenting was novel law when the Court announced it in Wisconsin v. Yoder, and it remains doctrinally fragile. But the spirit of strict scrutiny, once summoned, would not be easily cabined. Yoder would become the precedential port from which a number of religious parenting cases would be launched, asking courts to apply a rationale that “contradicts both constitutional tradition and common sense”—and undermines the basic premises of the trust model of parentchild relations.96

In Employment Division v. Smith, the Court rejected the application of strict scrutiny to religiously motivated claims for exemption from the general laws of the state. There was to be no separate sphere of the law where the government's ability to enforce generally applicable law is subject to an individual's religious beliefs. Yet, by not overturning Yoder (and a handful of other cases that had been reviewed under strict scrutiny), the Smith Court did in fact what it declined to do in theory: It left intact a sphere of the law where personal religious imperatives trump countervailing public interests. For the Court also said, this time explicitly, that heightened scrutiny had been applied to claims that involved “not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections.”97 The Court did little to clarify why this hybrid rights loophole (p.119) is justified, however, and the result has been a legacy of doctrinal confusion and much judicial scrambling.

In Smith, the Supreme Court was faced with a challenge to Oregon's antidrug laws. The case was brought by two members of the Native American Church who had been fired from their positions as drug counselors for using peyote, even though it had been used for sacramental purposes. When the state denied them unemployment benefits on the ground that their drug use was work-related misconduct, the plaintiffs argued that they were entitled to an exemption from the state's substance abuse statutes. The Court held that the First Amendment does not bar the application of a neutral, generally applicable law to religiously motivated action.98 A state law that does not target religious belief or practice is subject only to rational basis review, even if the law has the incidental effect of burdening, or perhaps effectively prohibiting, religious activity.

Controversially, the Court concluded that it was not making new doctrine: “We have never held,” Justice Scalia wrote for the Court, “that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.”99 The Court had applied strict scrutiny to some claims based on the Free Exercise Clause, but these cases, the Court decided quite after the fact, had involved the Free Exercise Clause and some other constitutional provision. Scalia pointed to Yoder as an example of such a case. Rather than overrule Yoder, the Smith Court distinguished it: Yoder, unlike Smith, involved a hybrid rights claim. With undisguised exasperation, critics of the decision complained that rather than overrule anything and perhaps lose his majority, Scalia “distinguished everything away.”100 But whether or not Scalia's reading of precedent “borders on fiction,”101 it is clear that some kind of hybrid rights doctrine survives Smith.

Smith is as controversial for what it did not say as for what it did. First, in a neat bit of jurisprudential legerdemain, Scalia never explicitly approved of the hybrid rights doctrine; rather, he used it to explain in descriptive terms why the Court was not overruling cases that had subjected general laws to heightened scrutiny.102 Second, like any good magician, Scalia did not reveal how the hybrid rights doctrine actually works.103 Is strict scrutiny (p.120) triggered when a litigant makes a Free Exercise Clause claim in conjunction with any other companion constitutional claim? Or is there a viable hybrid rights claim only when the companion claim itself would trigger strict scrutiny? There is a fair measure of inscrutability to each option. Much religious practice involves conduct that implicates other constitutional rights. But, as Justice David Souter would later point out, “[i]f a hybrid claim is simply one in which another constitutional right is implicated, then the hybrid exception would probably be so vast as to swallow the Smith rule.” Yet (and, again, Souter) if each conjoined right “is one in which a litigant would actually obtain an exemption from a formally neutral, generally applicable law under another constitutional provision, then there would have been no reason for the Court in what Smith calls the hybrid cases to have mentioned the Free Exercise Clause at all.”104 The Ninth Circuit nicely summed up the problem: “[T]he application of the hybrid-rights exception can turn neither upon the fact that a companion right is ‘implicated’ (else the central holding of Smith vanishes) nor upon the existence of a fully protected, independently viable companion right (else the Free Exercise Clause itself vanishes).”105 So, while it is clear that the hybrid rights doctrine survives Smith, it is not clear what the proposition means in the first place. What is a hybrid right?

As would be expected, it became the unhappy task of the lower courts to sort out the doctrinal details, and it has proved to be a difficult assignment, generating no shortage of discussion and disagreement.106 The courts have taken several routes through the uncertain terrain of hybrid rights:

  • 1. There is no general doctrine of hybrid rights.

  • This approach is, if nothing more, the path of least resistance. Some courts stay out of the doctrinal arena entirely, taking refuge in the fact that the Supreme Court's discussion of hybrid rights was mere dictum. Under this approach, the Second Circuit has decided that it is not bound to apply heightened scrutiny to hybrid claims.107 More candidly, the Sixth Circuit considers the doctrine too nonsensical to apply. In the court's view, it is “completely illogical” to conclude “that legal

  • (p.121) standards under the Free Exercise Clause vary depending on whether other constitutional rights are implicated.” Putting the doctrine on hold, the Sixth Circuit has decided that it is the better part of judicial discretion to follow the rule of Smith until the Supreme Court clarifies its intentions.108

  • To be sure, ignoring the Smith exception to honor the Smith rule has the virtue of simplicity, but it requires the court also to ignore the fact that cases like Yoder, where the Supreme Court did hold that a hybrid rights claim subjects a law to a higher level of scrutiny, remain on the books and are binding precedent. As the Ninth Circuit has remarked, lower courts do not always have the option of throwing up their hands in doctrinal despair: “Our job is not to critique or to deconstruct; ours is to make sense of a confusing doctrinal situation—to make the pieces fit.”109

  • 2. A hybrid rights claim exists only when a Free Exercise Clause claim is made in conjunction with a claim that would independently require an exemption.

  • One way to make the pieces fit is to require a companion claim that independently triggers strict scrutiny. This appears to be the approach of the First Circuit.110 But, as Justice Souter said, if a litigant's due process claim independently requires heightened scrutiny, there is no need to join it to a claim based on the Free Exercise Clause. This approach works only by ignoring the Yoder Court's assertion that strict scrutiny is not required “where nothing more than the general interest of the parent in the nurture and education of his children is involved.” It was by invoking the Free Exercise Clause in conjunction with a parenting rights claim that the Yoder Court somehow made the whole of the parents' claim greater than the sum of its constitutional parts. It is mysterious arithmetic.111 But, as has been pointed out (again the Ninth Circuit), the repeated references to the Free Exercise Clause in the socalled hybrid cases leave little doubt “that, whatever else it did, the

  • (p.122) Court did not rest its decisions in those cases upon the recognition of independently viable free speech and substantive due process rights.” Lower courts, the Ninth Circuit cautioned, should not lightly presume that the Supreme Court “was wasting its breath.”112

  • 3. A hybrid rights claim exists only when a Free Exercise Clause claim is made in conjunction with a colorable claim.

  • If a hybrid rights claim requires an independently viable companion claim, the Free Exercise Clause vanishes. If a hybrid rights claim requires only that the companion claim implicate another constitutional right, the Smith rule vanishes. Few laws would be subject to the Smith rule if the mere allegation of a companion right is enough to trigger strict scrutiny. To salvage some utility for the Smith rule, the Ninth and Tenth Circuits adopt a colorable claim doctrine.113 To make a hybrid rights claim, a litigant must do more than merely allege the violation of a companion right, but there is no requirement that the companion claim would independently trigger strict scrutiny. The conjoined claim must have “a ‘fair probability’ or a ‘likelihood,’ but not a certitude, of success on the merits.” The court must decide “whether either the claimed rights or the claimed infringements are genuine.”114 In theory, this approach would allow some hybrid claims to proceed where the companion claim is based on the parents' due process rights—but only where the due process claim involves a genuine infringement of a genuine constitutional right, whatever that means. Far easier to state than apply (and it is not all that easy to state), the colorable claim approach requires courts “to make difficult, qualitative, case-by-case judgments regarding the strength of companion-claim arguments.”115

It may not be clear what the hybrid rights theory really means—and, for now, it may mean different things to different courts—but it remains good (p.123) law. Thus, on the same day, the Michigan Supreme Court, applying rational basis review, could reject one claim brought by homeschooling parents who had run afoul of a teacher certification requirement;116 and, applying strict scrutiny, it could uphold the claim of a second set of homeschooling parents who also failed to meet the certification requirement.117 In the first case, the parents brought their claim under the Due Process Clause of the Fourteenth Amendment alone; in the second case, the parents brought their claim under the Due Process Clause and, because the parents' objections to state regulation were religiously based, under the Free Exercise Clause. In the court's judgment, the state had a legitimate interest in requiring a teaching certificate for homeschoolers (thus it survived rational basis review) but not a compelling one (thus it failed strict scrutiny).118 The results of bringing forward a hybrid rights claim speak for themselves. As do the results of not bringing forward such a claim. “Regardless of the intellectual merits of the hybrid theory,” Richard Duncan advises, “it is still law until the Court holds otherwise, and it is malpractice not to plead hybrid claims in free exercise litigation.”119

The Yoder Court's defense of “traditional concepts of parental control” was challenged by justices agreeing or disagreeing with the result. Justice Stewart wrote separately to suggest that had the religious beliefs of the children differed from those of their parents, it would have been a different case.120 Justice White, joined by Justices William Brennan and Stewart, also concurred, stating that, for him, it would have been a different case had the parents “forbade their children from attending any school at any time and from complying in any way with the educational standards set by the State.” Because the children were allowed to acquire the basic tools of literacy, White stated, there was only a “relatively slight” deviation from the state's compulsory education law. On this relatively slight basis, White agreed with the Court's decision. In a much bolder assertion, he declared that parents have no exclusive right to decide “what knowledge a child needs to be a productive and happy member of society.” In his view, the Court's seminal parenting cases stand for no such entitlement:

(p.124) [Pierce] lends no support to the contention that parents may replace state educational requirements with their own idiosyncratic views of what knowledge a child needs to be a productive and happy member of society; in Pierce, both the parochial and military schools were in compliance with all the educational standards that the State had set, and the Court held simply that while a State may posit such standards, it may not preempt the educational process by requiring children to attend public schools.121

The educational system, White observed, is not merely about basic literacy. The school system is “rather attempting to nurture and develop the human potential of its children, whether Amish or non-Amish: to expand their knowledge, broaden their sensibilities, kindle their imagination, foster a spirit of free inquiry, and increase their human understanding and tolerance.” Perhaps for those Amish children who wished to continue living the life of their parents, “their training at home will adequately equip them for their future role.” But White cited evidence that some children choose to “desert” their Amish faith when they come of age. Some may wish “to become nuclear physicists, ballet dancers, computer programmers, or historians, and for these occupations, formal training will be necessary.” A proper education should develop the latent talents of children; at a minimum, it should “provide [children] with an option other than the life they have led in the past.” The state has an interest that encompasses more than preparing children for life choices that have been made for them. It has an interest in helping children develop the capacity to make life choices for themselves.122

More famously, Justice William O. Douglas, the Court's lone dissenter, took the case on its own terms and proposed that it be remanded so that the children could have the opportunity to present their views. For Douglas, the case was not a contest merely between parent and state. The children, he wrote, “have constitutionally protectable interests” of their own. If parents are granted a religious exemption from state educational requirements, Douglas cautioned, “the inevitable effect is to impose the parents' notions of religious duty upon their children.” With a strong, if perhaps not (p.125) entirely appropriate, image, Douglas objected that Amish children cannot simply be “harnessed” to the religious preferences of their parents. If they are, and their education “is truncated,” their “entire life may be stunted and deformed.”123

Douglas advanced his own list of career options shut to students with a limited education. The Amish child “may want to be a pianist or an astronaut or an oceanographer. To do so he will have to break from the Amish tradition.” Douglas was bothered that the Wisconsin Supreme Court had “brushed aside the students' interests with the offhand comment that ‘[w]hen a child reaches the age of judgment, he can choose for himself his religion.’” In other proceedings, especially where family conflict is brought before the court, he noted, children are “regularly permitted” to testify as to their wishes. Before making a decision that might stunt and deform a child's future life, Douglas wanted to hear the voices of the Amish children:

It is the future of the student, not the future of the parents, that is imperiled by today's decision. If a parent keeps his child out of school beyond the grade school, then the child will be forever barred from entry into the new and amazing world of diversity that we have today. The child may decide that that is the preferred course, or he may rebel. 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. If he is harnessed to the Amish way of life by those in authority over him and if his education is truncated, his entire life may be stunted and deformed. The child, therefore, should be given an opportunity to be heard before the State gives the exemption which we honor today.124

For Douglas, the maturity of the child was the key question: “Where the child is mature enough to express potentially conflicting desires, it would be an invasion of the child's rights to permit such an imposition without canvassing his views.” Douglas cited studies by child psychologists and sociologists to show that the moral and intellectual maturity of minors “approaches (p.126) that of the adult.” Writing a century earlier, Judge Oakley had come to the same conclusion that “the rights of the child … are to be protected in the enjoyment of its personal liberty, according to its own choice, if arrived at the age of discretion.”125 It was a common law commonplace. And it would become constitutional law. Writing a few years later, the Court itself (Justice Harry Blackmun writing) would agree that “[c]onstitutional rights do not mature and come into being magically only when one attains the state-defined age of majority.”126

Nonparental Claims: Troxel v. Granville (2000)

The Reverend John Robinson had cautionary advice for parents about “the possibility of a pernicious influence being exerted over children by overly indulgent grandparents.” He warned that “children brought up with their grandfathers or grandmothers, seldom do well, but are usually corrupted by their too great indulgence.” The year was 1620, and Robinson was pastor to a group of Pilgrims soon to leave Holland for the New World. The Old World was being left behind, in more ways than one. But apparently grandparents were a bother in the New World, too.127 In the nineteenth century, the court considered many cases like that of John Lippincott, and quite often with a result in favor of grandparent custody or visitation.

The Supreme Court finally considered the issue in Troxel v. Granville (2000).128 If merely denominating a right as “fundamental”—multiple times—could make it so,129 then Justice Sandra Day O'Connor's plurality opinion would have guaranteed a securely fundamental future for the right to parent. “[T]he interest of parents in the care, custody, and control of their children,” O'Connor wrote, “is perhaps the oldest of the fundamental liberty interests recognized by this Court.”130 But adjectival excess aside, there is nothing in Troxel to support the conclusion that state regulation of parenting choices should trigger strict scrutiny. Quite the opposite. The Court's ruling that the visitation preferences of legal parents are entitled only to “some special weight” deeply disappointed advocates of parental rights, spurring the pursuit of a constitutional amendment to settle the question.

(p.127) The Washington State visitation statute was “breathtakingly broad.” It provided that “[a]ny person may petition the court for visitation rights at any time, and the court may grant such visitation rights whenever visitation may serve the best interest of the child.” For Justice O'Connor, this language “effectively permit[ted] any third party seeking visitation to subject any decision by a parent concerning visitation of the parent's children to state-court review.” The defect of the statute was that it “contravened the traditional presumption that a fit parent will act in the best interest of his or her child”:

In an ideal world, parents might always seek to cultivate the bonds between grandparents and their grandchildren. Needless to say, however, our world is far from perfect, and in it the decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance. And, if a fit parent's decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent's own determination.131

The Washington Supreme Court had held that “the Constitution permits a State to interfere with the right of parents to rear their children only to prevent harm or potential harm to a child.” But, despite its repeated description of the right to parent as fundamental, the Supreme Court did not subject the statute to this type of strict scrutiny harm standard. Resting its judgment on the “sweeping breadth” of the state statute, the Court declined to consider “whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation.”132

Justice O'Connor cited “extensive precedent” to support her assertion—“[I]t cannot now be doubted,” she wrote—that the right to parent is a fundamental one.133 In fact, the cited cases show only that the right to parent is constitutionally protected. Only Santosky v. Kramer, which concerns the absolute termination of parental rights, contains anything resembling a description of fundamental rights.134 Indeed, the other cases cited by O'Connor suggest that the Court has been disinclined to cast the right to (p.128) parent as fundamental. Meyer v. Nebraska is cited for the proposition that “the ‘liberty’ protected by the Due Process Clause includes the right of parents to ‘establish a home and bring up children’ and ‘to control the education of their own’”; Pierce v. Society of Sisters for the proposition that “the ‘liberty of parents and guardians’ includes the right ‘to direct the upbringing and education of children under their control’”; Prince v. Massachusetts for the proposition that “there is a constitutional dimension to the right of parents to direct the upbringing of their children”; and so on.135

It is no secret that there is a constitutional dimension to parental rights. The question is, what are the dimensions of this dimension? The problem is not so much that O'Connor quotes her precedents selectively, though this is problem enough, as that she misses what is most significant in these cases: the linkage of rights and responsibilities. This should not have been hard to miss. Prior to Troxel, the Supreme Court had already put these cases to their proper use:

In [these] cases, … the Court has emphasized the paramount interest in the welfare of children and has noted that the rights of the parents are a counterpart of the responsibilities they have assumed. Thus, the “liberty” of parents to control the education of their children that was vindicated in Meyer v. Nebraska and Pierce v. Society of Sisters was described as a “right, coupled with the high duty, to recognize and prepare [the child] for additional obligations.” The linkage between parental duty and parental right was stressed again in Prince v. Massachusetts, when the Court declared it a cardinal principle “that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”

This was the Court's assessment in Lehr v. Robertson (1983), one in a line of cases where the Supreme Court asked who qualifies as a parent for constitutional purposes. Instead of asking the negative rights question, “What rights belong to the father (or mother)?” the Lehr Court asked the relational (p.129) question, “What rights and duties are incident to the relationship of parent and child?”136

In Lehr, the defendant, Lorraine Robertson, was the biological mother of a child born out of wedlock. The plaintiff, Jonathan Lehr, was the child's biological father. Eight months after the child's birth, the defendant married Richard Robertson, and when the child, Jessica, was two years old, the couple filed for adoption. The plaintiff, who had not received notice of the adoption proceeding, filed a petition to vacate the adoption order on due process and equal protection grounds. In finding that the biological father's rights had not been violated, the Court set out the parameters of constitutional parenthood:

  1. 1. “When an unwed father demonstrates a full commitment to the responsibilities of parenthood by ‘com[ing] forward to participate in the rearing of his child,’ his interest in personal contact with his child acquires substantial protection under the due process clause”; but

  2. 2. “[T]he mere existence of a biological link does not merit equivalent constitutional protection.”

The Court reached its conclusion by rehearsing the basic premises of the trust model of parentchild relations. Parenthood, the Court said, is an opportunity to develop a relationship with one's child. Nonetheless, it is only an opportunity, not a guarantee against state interference: “If [the parent] grasps that opportunity and accepts some measure of responsibility for the child's future, he may enjoy the blessings of the parentchild relationship and make uniquely valuable contributions to the child's development. If he fails to do so, the Federal Constitution will not automatically compel a State to listen to his opinion of where the child's best interests lie.”137

In Lehr, the Court read its seminal parenting cases to stand for the principle that “the rights of the parents are a counterpart of the responsibilities they have assumed.”138 This traditional “linkage between parental duty and parental right” was the doctrinal backbone of the Court's line of putative father cases. Culminating in Lehr, these cases were decided as follows:


  • In Stanley v. Illinois (1972),139 the Court invalidated an Illinois state statute conclusively presuming that the father of a child born out of wedlock is unfit to have custody of his children. Under Illinois law, the children of unwed fathers became wards of the state upon the death of the mother. The nature of the actual relationship between parent and child, the Court stressed, was considered irrelevant. In this regard, the father “is treated not as a parent but as a stranger to his children.”

  • The Stanley Court underscored the fact that, in the case before it, there was nothing in the record to indicate that the plaintiff “is or has been a neglectful father who has not cared for his children.” Stanley had lived with the mother and their children intermittently for eighteen years. Though the state had legitimate interests—first, to protect “the moral, emotional, mental, and physical welfare of the minor and the best interests of the community” and, second, to “strengthen the minor's family ties whenever possible”—the Court concluded that the destruction of the custodial relationship by automatic presumption was hardly a rational way to secure these ends: “We observe that the State registers no gain towards its declared goals when it separates children from the custody of fit parents. Indeed, if Stanley is a fit father, the State spites its own articulated goals when it needlessly separates him from his family.”140

  • In Quilloin v. Walcott (1978),141 the Court upheld a Georgia state statute that required only the mother's consent for the adoption of a child born out of wedlock. In this case, the mother and the child's father “never married each other or established a home together.” The child's mother eventually married and consented to the adoption of the child by her husband.142 Though Quilloin was not found to be an unfit parent, the adoption was granted over his objection. The trial court determined that the adoption had been in the best

  • (p.131) interests of the child. Upholding the judgment, the Georgia Supreme Court based its decision on Quilloin's failure “to support or legitimate the child over a period of more than 11 years.” Unlike the father in Stanley, Quilloin, “had never been a de facto member of the child's family unit.”143

    The Supreme Court agreed with this conclusion and its reasoning: Quilloin “ha[d] never shouldered any significant responsibility with respect to the daily supervision, education, protection, or care of the child.” Nor was he now seeking custody of the child. In the Court's view, the state acted constitutionally when it tied the strength of Quilloin's parental rights claim to “the extent of [his] commitment to the welfare of the child.”144

  • In Caban v. Mohammed (1979),145 the Court again sounded the depth of a father's commitment to the welfare of his child. The Court upheld a challenge to a New York State statute that permitted an unwed mother, but not an unwed father, to block the adoption of their child simply by withholding consent. Here, the parents had lived together, representing themselves as husband and wife, though they were never legally married. The couple had three children together, and both mother and father had participated in their care and support. The mother, who had adopted the children, sought to make biology a stand-in for commitment, asserting that “a natural mother, absent special circumstances, bears a closer relationship with her child … than a father does.”146

  • Rejecting the claim that “the broad, gender-based distinction of [the state statute] is required by any universal difference between maternal and paternal relations at every phase of a child's development,” the Court found no reason to believe that the children “had a relationship with their mother unrivaled by the affection and concern of their father.” It would have been a different case had Caban, the father, not “come forward to participate in the rearing of his child.” It

  • (p.132) would have been a different case, that is, had Caban failed “to act as a father toward his children.”147

“Parental rights,” Justice Stewart stated in Caban, “do not spring fullblown from the biological connection between parent and child. They require relationships more enduring.” Constitutional parenthood comes into being when enduring relationships come into being. Thus, the relationship between an unwed father and his biological child may acquire constitutional status if “the actual relationship between father and child [is sufficient] to create in the unwed father parental interests comparable to those of the married father.”148 The Lehr Court agreed. The Constitution protects not parental rights, but “certain formal family relationships.” In Meyer, Pierce, and Prince, the Court “ha[d] found that the relationship of love and duty in a recognized family unit is an interest in liberty entitled to constitutional protection.” Today, as in the past, parents have rights in order to do right by their children.149

The idea that parental rights and responsibilities are constitutional counterparts was not missed entirely by the Troxel Court. In separate dissents, Justices Anthony Kennedy and Stevens borrowed from the Lehr line of cases to argue that the linkage of right and duty is well adapted to changing family conditions. Kennedy's “principal concern” was that the Court's holding “seem[ed] to proceed from the assumption that the parent or parents who resist visitation have always been the child's primary caregivers and that the third parties who seek visitation have no legitimate and established relationship with the child.” This assumption is no truer today than it was in the nineteenth century. “For many boys and girls,” Kennedy observed, “a traditional family with two or even one permanent and caring parent is simply not the reality of their childhood.” Given the realities of modern family life, the conventional nuclear family cannot serve to establish a visitation or custody standard. A harm standard is simply not appropriate for the many cases that are sure to arise “in which a third party, by acting in a caregiving role over a significant period of time, has developed a relationship with a child which is not necessarily subject to absolute parental veto.”150

Stevens also spoke to modern times, observing that “[t]he almost infinite variety of family relationships that pervade our ever-changing society (p.133) strongly counsel against the creation by this Court of a constitutional rule that treats a biological parent's liberty interest in the care and supervision of her child as an isolated right that may be exercised arbitrarily.” Beyond this, however, Stevens made the point that the right to parent has “never been regarded as absolute.” If rights arise from the responsibilities that parents assume, then these rights “are limited by the existence of an actual, developed relationship with a child, and are tied to the presence or absence of some embodiment of family.” Even where an actual, developed relationship with a child exists, the right to parent is limited by the fact that parenthood takes place within a web of complementary interests: “These limitations have arisen, not simply out of the definition of parenthood itself, but because of this Court's assumption that a parent's interests in a child must be balanced against the State's longrecognized interests as parens patriae, and, critically, the child's own complementary interest in preserving relationships that serve her welfare and protection.” Unlike other rights, the right to parent cannot establish “a rigid constitutional shield” that would keep the state from reaching the child absent a showing of harm. The child's interests are stronger than that. As Stevens cautioned, “[W]e should recognize that there may be circumstances in which a child has a stronger interest at stake than mere protection from serious harm caused by the termination of visitation by a ‘person’ other than a parent.” We should recognize as well that there may be circumstances in which a child has a stronger interest at stake than protection from an unfit parent. “[E]ven a fit parent,” Stevens reminds us, “is capable of treating a child like a mere possession.”151

When the dust of this fragmented decision settled, there was no clear voice in support of a fundamental due process right to parent, the restriction of which warranted strict scrutiny. The Court declined to address whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm. Both Kennedy and Stevens directly challenged the harm requirement.152 In his concurrence, Justice Souter would go only so far as to say that “a parent's interests in the nurture, upbringing, companionship, care, and custody of children are generally protected by the Due Process Clause of the Fourteenth Amendment.” And Justice Clarence Thomas, also concurring in the judgment, argued from precedent that strict scrutiny applies to the infringement of parental rights, (p.134) though he did not accept the proposition that, read correctly, the Due Process Clause actually protects unenumerated rights.153

Justice Scalia was alone in forthrightly rejecting the Court's jurisprudence of unenumerated rights. In a decision that disappointed many, his brief dissent was the unkindest cut of all. For parentalists could have no better friend on the Court. In Scalia's view, “a right of parents to direct the upbringing of their children is among the ‘unalienable Rights’ with which the Declaration of Independence proclaims ‘all men … are endowed by their Creator.’” This right, he continued, “is also among the ‘othe[r] [rights] retained by the people’ which the Ninth Amendment says the Constitution's enumeration of rights ‘shall not be construed to deny or disparage.’” Yet, as Scalia had to concede, the Declaration of Independence “is not a legal prescription conferring powers upon the courts; and the Constitution's refusal to ‘deny or disparage’ other rights is far removed from affirming any one of them.” And even if the Constitution could be construed to affirm “other rights,” Scalia warned (as had Justice James Iredell more than two hundred years earlier), it would be beyond the wisdom of judges “to identify what they might be.”154

As Locke maintained, parenthood does not beget personal rights; it begets great responsibility, a new world of private and public obligation. This duty can take many forms, and a liberal society will create a wide berth for parental preferences. But a just society will hold parents to a high standard of care. Traditionally, the right to parent has been circumscribed by doctrinal strictures far more stringent than those required for the protection of children from abuse and neglect. While a harm standard may allow for the categorical resolution of parental claims, it is ill suited to the resolution of family law disputes.155 From the time of Mansfield, custody courts have wisely insisted on judicial discretion, not judicial certainty.

Soon after Troxel was decided, Justice O'Connor repeated the formulation that parents have a “fundamental liberty interest … in the care, custody, and management [as opposed to control?] of their child.” Whatever O'Connor might have meant by “fundamental,” she did not mean the kind of interest that mandates strict scrutiny. The sorting out of family rights (p.135) and responsibilities is not a matter susceptible to bright-line judgments. In O'Connor's words,

But the adjudication of constitutional disputes does not necessarily translate to the effective resolution of family disputes. While constitutional due process doctrine is primarily concerned with the relationship of individuals to the State, the resolution of family disputes focuses primarily on the relationship of individuals with each other. In family cases, the rights of individuals are inter-twined, and the family itself has a collective personality. Thus, the due process model may not be the best framework for resolving multi-party conflicts where children, parents, professionals, and the State all have conflicting interests.

Accordingly, family law is—and must be—a collaborative enterprise. While the Supreme Court is well positioned to articulate general principles of constitutional law, there is much more to family law than the setting of constitutional rules. Underlying each family law case that reaches us are issues of state law and policy, as well as an actual family with its own dynamics, challenges, and problems.156

For more than two centuries the “actual family” has remained at the center of family dispute resolution. It is no small irony that parental rights advocates would undo a collaborative enterprise that for so long has sought to serve the best interests of the child. To this end, it is asserted that, historically, parents enjoyed a fundamental personal right to control the upbringing of their children and, accordingly, that state interference with the right to parent must pass the rigors of strict scrutiny. This assertion is fundamentally wrong.


(1) . People ex rel. O'Connell v. Turner, 55 Ill. 280, 282 (1870).

(2) . 4 Whart. 9, 11 (Pa. 1939).

(3) . David S. Tanenhaus, “Policing the Child: Juvenile Justice in Chicago, 1879–1925,” 32 (1997) (Ph.D. diss., Chicago) (on file with author); see also Tanenhaus, “Between Dependency and Liberty: The Conundrum of Children's Rights in the Gilded Age,” Law & Hist. Rev. 23 (2005): 351. See also generally Tanenhaus, Juvenile Justice in the Making (New York: Oxford University Press, 2004). The child's due process rights were recognized by the Supreme Court in In re Gault,387 U.S. 1 (1966). Writing for the Court, Justice Abe Fortas objected to “[t]he right of the state, as parens patriae, to deny to the child procedural rights available to his elders.” See 387 U.S. at 17; cf. Goss v. Lopez, 419 U.S. 565 (1975); In re Winship, 397 U.S. 358 (1970).

(4) . Cf. Wynehamer v. People, 13 N.Y. 378 (1856), which involved a challenge to the constitutionality of a state prohibition act. The decision was an early—and, at the time, novel—instance of a “vested rights” substantive due process jurispru dence. The classic treatment of vested rights is Edward S. Corwin, Liberty Against Government: The Rise, Flowering and Decline of a Famous Judicial Concept (Baton Rouge: Louisiana State University Press, 1948); for a modern, but no less clas sic, treatment, compare Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty (Princeton: Princeton University Press, 2004).

(5) . Turner, 55 Ill. at 284–85.

(6) . 55 Ill. at 285 (internal quotation marks omitted).

(7) . 55 Ill. at 284.

(8) . See also, e.g., State ex rel. Cunningham v. Ray, 63 N.H. 406 (1885) (commitment of minor to industrial school without hearing or trial violates state constitution) (citing People v. Turner, 55 Ill. 280 [1870]).

(9) . 19 Am. L. Reg., 366, 372 (1871).

(10) . 19 Am. L. Reg., 372–73.

(11) . 19 Am. L. Reg., 374. In this opinion, Redfield is not alone. See, e.g., Thomas James, “Rights of Conscience and State School Systems in NineteenthCentury America,” in Toward a Usable Past: Liberty Under State Constitutions, eds. Paul Finkelman and Stephen E. Gottlieb (Athens: University of Georgia Press, 1991) 117. See generally Diane Ravitch, The Great School Wars: A History of the New York City Public Schools, 1805–1973 (Baltimore: Johns Hopkins University Press, 1974) 20–158.

(12) . 19 Am. L. Reg., 372.

(13) . Tanenhaus, “Between Dependency and Liberty,” 354 (footnote omitted).

(14) . 40 Wis. 328 (1876).

(15) . 40 Wis. at 341. 40 Wis. at 331. 40 Wis. at 341. 40 Wis. at 337–38. 40 Wis. at 338–39.

(16) . 103 Ill. 367 (1882). For background, see Tanenhaus, “Between Dependency and Liberty,” 374–78. See also County of McLean v. Humphreys, 104 Ill. 379 (1882) (upholding Industrial School act). In Prince v. Massachusetts, the state of Massachusetts relied on Ferrier to argue that there are some “‘restrictions imposed upon personal liberty which spring from the helpless or dependent condition of individuals in the various relations of life, among them being those of parent and child…. There are well recognized powers of control in each of these relations over the actions of the child … which may be exercised. These are legal and just restraints upon personal liberty, which the welfare of society demands, and which, where there is no abuse, entirely consist with the constitutional guarantee of liberty.’” Brief on Behalf of Appellee at 16–17, the Commonwealth of Massachusetts, Prince v. Massachusetts, 321 U.S. 158 (1944) (quoting In re Ferrier's Petition, 103 Ill. at 373).

(17) . In re Ferrier's Petition, 103 Ill. at 371.

(18) . 103 Ill. at 371–72.

(19) . 103 Ill. at 372–73.

(20) . Ninth Biennial Report of the Superintendent of Public Instruction of the State of Illinois, 1871–1872, 223.

(21) . Bateman, Ninth Biennial Report, 222 (quoting People ex rel. O'Connell v. Turner, 55 Ill. at 287). Bateman, Ninth Biennial Report, 224.

(22) . See Plyer v. Doe, 457 U.S. 202, 221 (1982); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973).

(23) . 457 U.S. at 221.

(24) . Redfield was well aware that Turner would not put an end to “compulsory legislative discipline.” He writes, “The particular case [i.e., Turner] seems to be (p.276) measurably free from doubt. But there is a wide field of debatable ground between the dominion of punishment for crime and that of mere improved culture, in which it will be long before any very exact definitions of jurisdiction or of the distributions of service between the voluntary and compulsory fields can be satisfactorily fixed.” 19 Am. L. Reg., 375.

(25) . See, e.g., Allison v. Bryan, 97 P. 282, 286 (Okla. 1908).

(26) . 262 U.S. 390 (1923); 268 U.S. 510 (1925). On the historical background of Meyer and Pierce, see generally Paula Abrams, Cross Purposes: Pierce v. Society of Sisters and the Struggle over Compulsory Public Education (Ann Arbor: University of Michigan Press, 2009); William G. Ross, Forging New Freedoms: Nativism, Education, and the Constitution 1917–1927 (Lincoln: University of Nebraska Press, 1994); Barbara Bennett Woodhouse, “‘Who Owns the Child?’: Meyer and Pierce and the Child as Property,” Wm. & Mary L. Rev. 33 (1992): 995; William G. Ross, “A Judicial Janus: Meyer v. Nebraska in Historical Perspective,” U. Cin. L. Rev. 57 (1988): 125; David Tyack, Thomas James, and Aaron Benavot, Law and the Shaping of Public Education, 1785–1954 (Madison: University of Wisconsin Press, 1987) 177–92; David B. Tyack, “The Perils of Pluralism: The Background of the Pierce Case,” American Hist. Rev. 74 (1968): 74.

(27) . See Ravitch, The Great School Wars, 20–158. For a useful overview of anti-Catholic sentiment in American intellectual history, see John T. McGreevy, “Thinking on One's Own: Catholicism in the American Intellectual Imagination, 1928–1960,” Journal of American History 84 (1997): 97.

(28) . Ravitch, The Great School Wars, 48–49 (quoting W. M. Oland Bourne, History of the Public School Society of the City of New York [New York: Wm. Wood, 1870] 334); see generally Ravitch, 20–158. Michael Grossberg discusses the case of Thomas Wall, who was beaten for refusing to read portions of the King James Bible, in “Teaching the Republican Child: Three Antebellum Stories About Law, Schooling, and the Construction of American Families,” Utah L. Rev. 1996 (1996): 429, 452–58; cf., e.g., Ferriter v. Tyler, 48 Vt. 444 (1876) (upholding dismissal of student for absence due to religious observance).

(29) . Morrow v. Wood, 35 Wis. 59, 65 (1874).

(30) . Kelley v. Ferguson, 144 N.W. 1039, 1044 (Neb. 1914).

(31) . See Meyer, 262 U.S. at 401.

(32) . The invitation had been extended by the appellee Society of Sisters, see Brief of Appellee, in Oregon School Cases: Complete Record (Baltimore: Belvedere Press, 1925) 321–30; by the attorney William Guthrie before the Court, see Transcript of Oral Argument, in Oregon School Cases, 653; and by the amicus brief of William A. Williams as Amicus Curiae (on behalf of the North Pacific Union Conference of Seventh-Day Adventists), see Oregon School Cases, 596, 615–16.

(33) . David R. Upham, “Pierce v. Society of Sisters, Natural Law, and the Pope's Extraordinary—But Undeserved—Praise of the American Republic” [Draft], 12, at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2018396(footnoteomitted).

(34) . On the same day that the Supreme Court decided Meyer, it issued an opinion that brought to a conclusion four other language-statute cases (Bartels v. Iowa; Bohning v. Ohio; Pohl v. Ohio; and Nebraska Dist. of Evangelical Lutheran Synod v. McKelvie). See 262 U.S. 404 (1923). These cases were all decided upon the author ity of Meyer. 262 U.S. at 409. In briefs before the lower courts, plaintiffs in error Bohning and Pohl had advanced a parental rights argument. For a survey of the litigation, see Ross, “A Judicial Janus,” 135–85. Ross notes that before the Supreme Court all the appellants “gave short shrift to this [parental rights] point.” Ross, 168.

(35) . Wisconsin v. Yoder, 406 U.S. 205, 213 (1972).

(36) . Meyer, 262 U.S. at 403. Pierce, 268 U.S. at 534. In the Pierce litigation, counsel for the parents would stress their support of state regulation, “invit[ing] the fullest inspection and regulation, and the fixing of minimum standards in the education of the young and in all forms of education.” See Abrams, Cross Purposes, 147 (internal quotation marks and citation omitted).

(37) . See 262 U.S. at 400 (quoting Meyer v. State, 187 N.W. 100, 102 [Neb. 1992]); cf. Bartels v. Iowa, 262 U.S. 404, 412 (1923) (Holmes, J., dissenting) (“It is with hesitation and unwillingness that I differ from my brethren with regard to a law like this but I cannot bring my mind to believe that in some circumstances, and circumstances existing it is said in Nebraska, the statute might not be regarded as a reasonable or even necessary method of reaching the desired result”).

(38) . Meyer, 262 U.S. at 403.

(39) . See Ross, Nativism, Education, and the Constitution, 130.

(40) . Meyer v. State, 187 N.W. at 104 (Letton, J., dissenting); cf. Berea College v. Commonwealth of Kentucky, 211 U.S. 45, 67 (1908) (Harlan, J., dissenting) (“The capacity to impart instruction to others is given by the Almighty for beneficent purposes; and its use may not be forbidden or interfered with by government—certainly not, unless such instruction is, in its nature, harmful to the public morals or imperils the public safety”).

(41) . Transcript of Oral Argument at 11, Meyer v. Nebraska, 262 U.S. 390 (1923).

(42) . “The only reference to parental rights in the entire opinion consists of one sentence noting that the ban on languages had the effect of interfering with ‘the calling of modern language teachers, with the opportunities of pupils to acquire knowledge, and with the power of parents to control the education of their own.’” People v. Bennett, 501 N.W.2d 106, 113 (Mich. 1993) (quoting Meyer, 262 U.S. at 401).

(43) . Meyer, 262 U.S. at 401. In Pierce, as James G. Dwyer notes, “attorneys thought to assert a right of parents, precisely because Meyer had announced such a right two years earlier. And Justice McReynolds could cite his own dictum in Meyer as doctrinal support for the existence of this unenumerated constitutional right.” Family Law: Theoretical, Comparative, and Social Science Perspectives (New York: Wolters Kluwer, 2012) 497.

(44) . Transcript of Oral Argument at 11, Meyer v. Nebraska.

(45) . See, e.g., Railroad Commission Cases, 116 U.S. 307, 331 (1886) (“[I]t is not to be inferred that this power of limitation or regulation is itself without limit. This power to regulate is not a power to destroy, and limitation is not the equivalent of confiscation”).

(46) . Meyer, 262 U.S. at 403. The state statute had stipulated that “an emergency exists.” 262 U.S. at 397. But the Court rejected the legislature's conclusion: “No emergency has arisen which renders knowledge by a child of some language other than English so clearly harmful as to justify its inhibition with the consequent infringement of rights long freely enjoyed.” 262 U.S. at 403.

(47) . See Transcript of Oral Argument at 7, Meyer v. Nebraska: “My theory of the State's control of education under the police power is this: That the State has a right to prescribe a minimum of education for the children within the United States, or within the State. It has the right, clearly, within the police power to require the children to have sufficient education to properly discharge their duties as citizens. But when that minimum is reached, the State has no police power above that. It is entirely a matter of option with the student, the teacher and the parent what the school shall teach the child above that…. The State has a right to prescribe minimums, but when we meet those minimums, its police power stops.“Take, for example, the question suggested by Mr. Justice McReynolds: If the State has, as suggested by him, the power to require all children to attend the public schools, that means that private schools must close. If it has a right to pass that kind of a compulsory school law, it can close up the private institutions, because there is no need of them, then everybody must attend the public schools.”As Paula Abrams notes, “Meyer's brief conceded the authority of the state to compel public school attendance.” Cross Purposes, 120. Meyer's brief did suggest “[t]hat a law requiring that all persons within a certain age should be required to attend the public schools for a certain period … would be a valid exercise of the police power.” Brief of Plaintiff in Error at 14–15, Meyer v. Nebraska, 262 U.S. 390 (1923). But its argument echoed Mullen's point that the state, while it could set minimum educational standards, could not “limit[] the field of human knowledge”: “[T]he relation of a law, fixing a minimum of education, to the common good is readily perceived, but how one fixing a maximum—limiting the field of human knowledge—can serve the public welfare or add substantially to the (p.279) security of life, liberty or the pursuit of happiness is inconceivable.” Brief of Plaintiff in Error at 15.

(48) . Brief of Defendant (State of Nebraska) at 12–13, Meyer v. Nebraska, 262 U.S. 390 (1923).

(49) . Brief of Defendant (State of Nebraska) at 14–15.

(50) . See Exodus 5.

(51) . Transcript of Oral Argument at 11, Meyer v. Nebraska.

(52) . Meyer, 262 U.S. at 403. See Pierce, 268 U.S. at 534.

(53) . Meyer, 262 U.S. at 403.

(54) . Brief for William D. Guthrie & Bernard Hershkopf as Amici Curiae Supporting Plaintiff in Error [Petitioner] at 3, Meyer v. Nebraska, 262 U.S. 390 (1923). For background on Guthrie, see Abrams, Cross Purposes, 112–17; Woodhouse, “Who Owns the Child?” 1070–80.

(55) . Brief for Guthrie & Hershkopf as Amici Curiae at 3 (citation omitted); cf. Budd v. New York, 143 U.S. 517, 551 (1892) (Brewer, J., dissenting) (“The paternal theory of government is to me odious. The utmost possible liberty to the individual, and the fullest possible protection to him and his property, is both the limitation and duty of government. If it may regulate the price of one service, which is not a public service, or the compensation for the use of one kind of property which is not devoted to a public use, why may it not with equal reason regulate the price of all service, and the compensation to be paid for the use of all property? And if so, ‘Looking Backward’ is nearer than a dream”).

(56) . Transcript of Oral Argument at 10, Meyer v. Nebraska.

(57) . Brief of Appellant at 46, Pierce v. Society of the Sisters of the Names of Jesus and Mary, 268 U.S. 510 (1925) (No. 583); cf. Brief of Appellant at 46 (“At present, the vast majority of the private schools in the country are conducted by members of some particular religious belief. They may be followed, however, by those organized and controlled by believers in certain economic doctrines entirely destructive of the fundamentals of our government. Can it be contended that there is no way in which a State can prevent the entire education of a considerable portion of its future citizens being controlled and conducted by bolshevists, syndicalists and communists?”).

(58) . Meyer, 262 U.S. at 401–2.

(59) . Pierce, 268 U.S. at 534–35.

(60) . Yoder, 406 U.S. at 233.

(61) . Richard W. Garnett, “Taking Pierce Seriously: The Family, Religious Education, and Harm to Children,” Notre Dame L. Rev. 76 (2000): 109, 143.

(62) . See Meyer, 262 U.S. at 399; see Pierce, 268 U.S. at 535.

(63) . See David D. Meyer, “What Constitutional Law Can Learn from the ALI Principles of Family Dissolution,” BYU L. Rev. 2001 (2001): 1075, 1090; Meyer, “The Paradox of Family Privacy,” Vand. L. Rev. 53 (2000): 527, 546; (p.280) cf. Francis Barry McCarthy, “The Confused Constitutional Status and Meaning of Parental Rights,” Ga. L. Rev. 22 (1988): 975, 992.

(64) . Slaughter-House Cases, 83 U.S. 36, 78 (1872).

(65) . People ex rel. Annan v. Walsh, 22 N.E. 682, 686 (N.Y. 1899) (Peckham, J., dissenting).

(66) . Blackstone, 1 Commentaries on the Laws of England (Oxford: Clarendon Press, 1765) 130.

(67) . Meyer, 262 U.S. at 399 (“While this court has not attempted to define with exact-ness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men”). Compare Felix Frankfurter, “Can the Supreme Court Guarantee Toleration?” New Republic, June 17, 1925, 85. The future Supreme Court justice wrote that the Pierce decision “did immediate service on behalf of the essential spirit of liberalism.” But he worried about the cost to liberalism occasioned by “judicial nullification of anti-liberal legislation.” The Oregon case “is only one in a series which has been spun profusely out of the fateful words of the Fourteenth Amendment. ‘No state shall … deprive any person of life, liberty or property without due process of law’ are the vague words which hold the power of life and death over State action. These words mean what the shifting personnel of the United States Supreme Court from time to time makes them mean. The inclination of a single Justice, the tip of his mind—or his fears—determines the opportunity of a much-needed social experiment to survive, or frustrates, at least for a long time, intelligent attempt to deal with a social evil…. In rejoicing over the Nebraska and the Oregon cases, we must not forget that a heavy price has to be paid for these occasional services to liberalism.” Frankfurter, “Can the Supreme Court Guarantee Toleration?” 86.

(68) . Michael P. Farris, “Parental Rights: Why Now Is the Time to Act,” March/April 2006 The Home School Court Report 7, 9 (March/April 2006), at parentalrights. org, http://www.parentalrights.org/index.asp?Type=B_BASIC&SEC={B70D1F5 F-97FF-499A-A123–16CAE9385046}.

(69) . See Carey v. Population Servs. Int'l, 431 U.S. 678 (1977); Bellotti v. Baird, 428 U.S. 132 (1976).

(70) . Yoder, 406 U.S. at 209.

(71) . 406 U.S. at 209–10.

(72) . 406 U.S. at 211–12.

(73) . 406 U.S. at 213 (quoting Pierce, 268 U.S. at 535). 406 U.S. at 213–14.

(74) . 374 U.S. 398, 406 (1963).

(75) . Yoder, 406 U.S. at 233–34.

(76) . Yoder, 406 U.S. at 233.

(77) . 405 U.S. 438, 467 (1972) (Burger, C.J., dissenting). 405 U.S. at 471–72.

(78) . Yoder, 406 U.S. at 215–16.

(79) . See 406 U.S. at 216 (“[I]f the Amish asserted their claims because of their subjective evaluation and rejection of the contemporary secular values accepted by the majority, much as Thoreau rejected the social values of his time and isolated himself at Walden Pond, their claims would not rest on a religious basis. Thoreau's choice was philosophical and personal rather than religious, and such belief does not rise to the demands of the Religion Clauses”).

(80) . 406 U.S. at 215.

(81) . See Brief for Respondents, State v. Yoder, 182 N.W.2d 539 (Wis. 1971).

(82) . Yoder, 406 U.S. at 229.

(83) . 406 U.S. at 230.

(84) . See Braunfeld v. Brown, 366 U.S. 599 (1961). In dissent, Justice Brennan argued that the Sunday closing law, in “put[ting] an individual to a choice between his business and his religion,” violated the Free Exercise Clause. 366 U.S. at 611 (Brennan, J., dissenting). He was not impressed with the state's assertion of its interests. See 366 U.S. at 613–14 (“What, then, is the compelling state interest which impels the Commonwealth of Pennsylvania to impede appellants' freedom of worship? What overbalancing need is so weighty in the constitutional scale that it justifies this substantial, though indirect, limitation of appellants' freedom? … It is the mere convenience of having everyone rest on the same day”).

(85) . Yoder, 406 U.S. at 221.

(86) . 406 U.S. at 222.

(87) . See Brief for the Petitioner at 18–22, State v. Yoder, 182 N.W.2d 539 (Wis. 1971); cf. Joel Feinberg, “The Child's Right to an Open Future,” in Whose Child?: Children's Rights, Parental Authority, and State Power, eds. William Aiken and Hugh LaFollette (Totowa: Littlefield, Adams, 1980) 134–35 (“But how is ‘the goal of education’ to be viewed? That is the question that must be left open if the Court is to issue a truly neutral decision[:] to assume that ‘the goal’ is preparation for modern commercialindustrial life is to beg the question in favor of the state, but equally, to assume that ‘the goal’ is preparation for a ‘life aloof from the world’ is to beg the question in favor of the parents. An impartial decision would assume only that education should equip the child with the knowledge and skills that will help him choose whichever sort of life best fits his native endowment and matured disposition. It should send him out into the adult world with as many open opportunities as possible, thus maximizing his chances for self-fulfillment”).

(88) . Yoder, 406 U.S. at 225.

(89) . See Blackstone, 1 Commentaries on the Laws of England, 435.

(90) . Yoder, 406 U.S. at 232.

(91) . 406 U.S. at 231–32.

(92) . See 406 U.S. at 225–26 (“When Thomas Jefferson emphasized the need for education as a bulwark of a free people against tyranny, there is nothing to indicate he had in mind compulsory education through any fixed age beyond a basic education. Indeed, the Amish communities singularly parallel and reflect many of the virtues of Jefferson's ideal of the ‘sturdy yeoman’ who would form the basis of what he considered as the ideal of a democratic society”) (footnote omitted).

(93) . 406 U.S. at 236.

(94) . See 406 U.S. at 233.

(95) . See, e.g., Parker v. Hurley, 514 F.3d 87, 100 (1st Cir. 2008) (“Tellingly, Yoder emphasized that its holding was essentially sui generis, as few sects could make a similar showing of a unique and demanding religious way of life that is fundamentally incompatible with any schooling system”); cf. Mozert v. Hawkins Cnty. Bd. of Educ., 827 F.2d 1058, 1067 (6th Cir. 1987) (“Yoder rested on such a singular set of facts that we do not believe it can be held to announce a general rule”).

(96) . Employment Div., Dept. of Human Res. of Oregon v. Smith, 494 U.S. 872, 885 (1990).

(97) . 494 U.S. at 881.

(98) . On the meaning of neutrality and general applicability, see generally Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993); see also, e.g., Christopher C. Lund, “A Matter of Constitutional Luck: The General Applicability Requirement in Free Exercise Jurisprudence,” Harv. J.L. & Pub. Pol'y 26 (2003): 627, 633–44; Robin Cheryl Miller, “What Laws Are Neutral and of General Applicability Within Meaning of Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876,” Annotation, A.L.R. Fed. 167 (2001): 663.

(99) . Smith, 494 U.S. at 878–79. To say the least, this assertion did not go uncontested. See, e.g., William P. Marshall, “In Defense of Smith and Free Exercise Revisionism,” U. Chi. L. Rev. 58 (1991): 308, 309; Michael W. McConnell, “Free Exercise Revisionism and the Smith Decision,” U. Chi. L. Rev. 57 (1990): 1109, 1120. But see John P. Forren, “Revisiting Four Popular Myths about the Peyote Case,” U. Pa. J. Const. L. 8 (2006): 209, 212–15 (disputing “myth” that pre-Smith courts vigorously protected religious practices from regulation).

(100) . Douglas Laycock, “Free Exercise and the Religious Freedom Restoration Act,” Fordham L. Rev. 62 (1994): 883, 902 (“Justice Scalia had only five votes. He apparently believed he couldn't overrule anything, and so he didn't. He distinguished everything away instead”).

(101) . Marshall, “In Defense of Smith and Free Exercise Revisionism,” 309 (“The Smith opinion itself, however, cannot be readily defended. The decision, as written, is neither persuasive nor well-crafted. It exhibits only a shallow understanding of free exercise jurisprudence and its use of precedent borders on fiction”) (footnotes omitted); cf. Kent Greenawalt, 1 Religion and the Constitution (Princeton: Princeton University Press, 2006) 105 (“Justice Scalia's treating of Yoder as a hybrid resting on two separate legs was not quite creation ex nihilo, but it came close; it is the kind of imaginative reclassification that later courts occasionally perform on earlier cases whose approach does not appeal to them”).

(102) . See, e.g., Parker v. Hurley, 514 F.3d at 97 (“Observers debate whether Smith created a new hybrid rights doctrine, or whether in discussing ‘hybrid situations’ the Court was merely noting in descriptive terms that it was not overruling certain cases such as Pierce and Yoder”).

(103) . See, e.g., Kissinger v. Bd. of Trs. of Ohio State Univ., 5 F.3d 177, 180 (6th Cir. 1993) (“[T]he Smith court did not explain how the standards under the Free Exercise Clause would change depending on whether other constitutional rights are implicated”).

(104) . Church of the Lukumi Babalu Aye, 508 U.S. at 567 (Souter, J., concurring).

(105) . Thomas v. Anchorage Equal Rights Comm'n, 165 F.3d 692, 704 (9th Cir. 1999), withdrawn and rev'd on other grounds, Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134 (9th Cir. 2000).

(106) . For a survey of the commentary, see Ariana S. Cooper, Note, “Free Exercise Claims in Custody Battles: Is Heightened Scrutiny Required Post-Smith?” Colum. L. Rev. 108 (2008): 716, 723 n.55. On hybrid rights and family law generally, see James G. Dwyer, “The Good, the Bad, and the Ugly of Employment Division v. Smith for Family Law,” Cardozo L. Rev. 32 (2011): 1781.

(107) . See, e.g., Leebaert v. Harrington, 332 F.3d 134, 143 (2d Cir. 2003) (“Given our understanding of the Smith statement as dicta, we are not bound … to apply some stricter standard of review than the rational basis test to hybrid claims”) (citing Knight v. Connecticut Dept. of Public Health, 275 F.3d 156,167 [2d Cir. 2001]); see also Watchtower Bible & Tract Soc'y of N.Y. v. Village of Stratton, 240 F.3d 553, 562 (6th Cir. 2001), rev'd on other grounds, 536 U.S. 150 (2002) (doctrine was dicta and therefore not binding).

(108) . Kissinger v. Bd. of Trs. of Ohio State Univ., 5 F.3d at 180; see also 5 F.3d at 180 (“[A]t least until the Supreme Court holds that legal standards under the Free Exercise Clause vary depending on whether other constitutional rights are implicated, we will not use a stricter legal standard than that used in Smith to evaluate generally applicable, exceptionless state regulations under the Free Exercise Clause”).

(109) . Thomas v. Anchorage Equal Rights Comm'n, 165 F.3d at 704 n.8.

(110) . See Brown v. Hot, Sexy & Safer Prods., 68 F.3d 525, 539 (1st Cir. 1995).

(111) . Compare Henderson v. Kennedy, 253 F.3d 12, 19 (D.C. Cir. 2001) (“We also reject plaintiffs' contention that the regulation should receive some heightened scrutiny because they are presenting some sort of ‘hybrid claim’ resting on both the Free Exercise Clause and the Free Speech Clause of the First Amendment. For this argument to prevail, one would have to conclude that the combination of two untenable claims equals a tenable one. But in law as in mathematics zero plus zero equals zero”), with Richard F. Duncan, “Free Exercise Is Dead, Long Live Free Exercise: Smith, Lukumi and the General Applicability Requirement,” U. Pa. J. Const. L. 3 (2001): 850, 858 (“Of course, the concept of hybrid claims is not completely irrational. Although it is certainly true that zero plus zero does not equal one, it is equally true that the sum of a number of fractions—one-half plus one-half, for example—may equal one. Yoder, indeed, is a case in which Wisconsin's mandatory attendance laws implicated not only religious liberty interests, but also free speech, association, and parental rights. Even if no single strand of the constitutional interests at stake in a case like Yoder is sufficient to trigger heightened constitutional protection, it is possible to argue that the cumulative effect of all these interests is sufficient”).

(112) . Thomas v. Anchorage Equal Rights Comm'n, 165 F.3d at 704 (“Nonetheless, the Supreme Court's repeated references to the Free Exercise Clause in the socalled hybrid cases leave us with little doubt that, whatever else it did, the Court did not rest its decisions in those cases upon the recognition of independently viable free speech and substantive due process rights”). 165 F.3d at 705.

(113) . See 165 F.3d at 706 (comparing colorable claim to “the traditional ‘likelihood of success on the merits’ test that governs the issuance of preliminary injunctive relief”); Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d 694, 700 (10th Cir. 1998) (“Whatever the Smith hybrid-rights theory may ultimately mean, we believe that it at least requires a colorable showing of infringement of recognized and specific constitutional rights, rather than the mere invocation of a general right such as the right to control the education of one's child”).

(114) . Thomas v. Anchorage Equal Rights Comm'n, 165 F.3d at 707. 165 F.3d at 699.

(115) . 165 F.3d at 705. The Thomas court believed that a colorable claim approach is consistent with Supreme Court precedent, explaining the result in both Yoder and Smith. To reach this conclusion, the court assumed that the Smith plaintiffs could not make out a colorable companion claim. See 165 F.3d at 706. (“The plaintiffs in Smith could not have made out a ‘colorable claim of infringement’ with respect to their free speech rights. Ingesting peyote is certainly not ‘speech’ in the traditional sense; at best, it is ‘expressive conduct.’ And the only cases in which the Supreme Court has invalidated laws regulating expressive conduct are (p.285) those in which it has concluded that the government has prohibited such conduct ‘precisely because of its communicative attributes’”) (citing cases). But this is hardly a certain proposition. See McConnell, “Free Exercise Revisionism and the Smith Decision,” 1122 (“Why isn't Smith itself a ‘hybrid’ case? Whatever else it might accomplish, the performance of a sacred ritual like the ingestion ofpeyote communicates, in a rather dramatic way, the participants' faith in the tenets of the Native American Church. [Plaintiffs] Smith and Black could have made a colorable claim under the Free Speech Clause that the prohibition of peyote use interfered with their ability to communicate this message. If burning a flag is speech because it communicates a political belief, ingestion of peyote is no less”) (footnote omitted).

(116) . People v. Bennett, 501 N.W.2d 106 (Mich. 1993).

(117) . People v. DeJonge, 501 N.W.2d 127 (Mich. 1993).

(118) . Nor had the state used the least restrictive means to achieve its end. See 501 N.W.2d at 137–44.

(119) . Duncan, “Free Exercise Is Dead, Long Live Free Exercise,” 858.

(120) . See Yoder, 406 U.S. at 237 (Stewart, J., concurring).

(121) . 406 U.S. at 238 (White, J., concurring).

(122) . 406 U.S. at 239–40 (White, J., concurring).

(123) . 406 U.S. at 243 (Douglas, J., dissenting). 406 U.S. at 242; cf. Meek v. Pittenger, 421 U.S. 349, 386 (1975) (Burger, C.J., concurring in the judgment in part and dissenting in part) (denial of state provision of educational services “penalizes children … not because of any act of theirs but because of their parents' choice of religious exercise”). 406 U.S. at 245–46. Douglas was equally concerned that the state as educator might make ideological impositions upon children. See Lemon v. Kurtzman, 403 U.S. 602, 630 (1971) (Douglas, J., concurring) (“While the evolution of the public school system in this country marked an escape from denominational control and was therefore admirable as seen through the eyes of those who think like Madison and Jefferson, it has disadvantages. The main one is that a state system may attempt to mold all students alike according to the views of the dominant group and to discourage the emergence of individual idiosyncrasies”).

(124) . 406 U.S. at 244–45. 406 U.S. at 246 n.3 (internal quotation marks omitted). 406 U.S. at 246 n.3. 406 U.S. at 245–46 (footnote omitted).

(125) . 406 U.S. at 242.

(126) . In re Gregg, 5 New York Legal Observer 265, 267 (N.Y. Super. 1847). Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 74 (1976).

(127) . See Philip Greven, The Protestant Temperament: Patterns of Child-Rearing, Religious Experience, and the Self in Early America (New York: Alfred A. Knopf, 1977) 27 (internal quotation marks omitted). And it seems that grandparents remained (p.286) a problem. Greven writes, “A century and a half [after Robinson's admonition], John Wesley warned mothers that ‘Your mother, or your husband's mother, may live with you; and you will do well to shew her all possible respect. But let her on no account have the least share in the management of your children. She would undo all that you have done; she would give them their own will in all things. She would humour them to the destruction of their souls, if not their bodies too.’” Greven, 27.

(128) . 530 U.S. 57 (2000).

(129) . See Michael H. v. Gerald D., 491 U.S. 110, 122 (1989) (“In an attempt to limit and guide interpretation of the Clause, we have insisted not merely that the interest denominated as a ‘liberty’ be ‘fundamental’” ((a concept that, in isolation, is hard to objectify)), but also that it be an interest traditionally protected by our society. As we have put it, the Due Process Clause affords only those protections ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental’”) (footnote omitted) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105 [1934]).

(130) . Troxel, 530 U.S. at 65. O'Connor was not alone in denominating the right to parent as fundamental. See 530 U.S. at 80 (Thomas, J., concurring in the judgment); 530 U.S. at 87 (Stevens, J., dissenting).

(131) . 530 U.S. at 67. 530 U.S. at 67 (internal quotation marks and citation omitted). 530 U.S. at 67. 530 U.S. at 69. 530 U.S. at 70.

(132) . 530 U.S. at 63 (emphasis added). 530 U.S. at 73; cf. David D. Meyer, “Partners, Care Givers, and the Constitutional Substance of Parenthood,” in Reconceiving the Family: Critique on the American Law Institute's Principles of the Law of Family Dissolution, ed. Robin Fretwell Wilson (New York: Cambridge University Press, 2006) 47, 64.

(133) . 530 U.S. at 66.

(134) . Santosky v. Kramer, 455 U.S. 745, 753 (1982) (discussing “[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child”); cf. Quilloin v. Walcott, 434 U.S. 246, 255 (1978) (“We have little doubt that the Due Process Clause would be offended ‘[i]f a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children's best interest’”) (quoting Smith v. Organization of Foster Families for Equality and Reform (OFFER), 431 U.S. 816, 862–863 [1977] [Stewart, J., concurring in the judgment]).

(135) . See Troxel, 530 U.S. at 65–66.

(136) . Lehr v. Robertson, 463 U.S. 248, 257–58 (1983).

(137) . 463 U.S. at 261 (quoting Caban v. Mohammed, 441 U.S. 380, 392 [1979]). 463 U.S. at 261. 463 U.S. at 262 (footnote omitted).

(138) . 463 U.S. at 257 (“[T]he Court has emphasized the paramount interest in the welfare of children and has noted that the rights of the parents are a counterpart of the responsibilities they have assumed”).

(139) . 405 U.S. 645 (1972). For the background facts, see 405 U.S. at 646–67.

(140) . 405 U.S. at 648. 405 U.S. at 655. 405 U.S. at 652 (internal quotation marks and citation omitted). 405 U.S. at 652–53.

(141) . 434 U.S. 246 (1978).

(142) . For the background facts, see 434 U.S. at 247.

(143) . 434 U.S. at 253.

(144) . 434 U.S. at 256.

(145) . 441 U.S. 380 (1979). For the background facts, see 441 U.S. at 382–83.

(146) . 441 U.S. at 388 (internal quotation marks and citation omitted).

(147) . 441 U.S. at 389. 441 U.S. at 392. 441 U.S. at 389 n.7 (noting that in Quilloin v. Walcott the Court “emphasized the importance of the appellant's failure to act as a father toward his children”).

(148) . 441 U.S. at 397 (Stewart, J., dissenting).

(149) . Lehr, 463 U.S. at 258. 463 U.S. at 259.

(150) . Troxel, 530 U.S. at 98 (Kennedy, J., dissenting).

(151) . 530 U.S. at 90 (Stevens, J., dissenting). 530 U.S. at 88. 530 U.S. at 88. 530 U.S. at 88. 530 U.S. at 86. 530 U.S. at 90. 530 U.S. at 86.

(152) . 530 U.S. at 86 (“While, as the Court recognizes, the Federal Constitution certainly protects the parentchild relationship from arbitrary impairment by the State, we have never held that the parent's liberty interest in this relationship is so inflexible as to establish a rigid constitutional shield, protecting every arbitrary parental decision from any challenge absent a threshold finding of harm”) (Stevens, J., dissenting) (cross-reference and footnote omitted); 530 U.S. at 97 (“To say that third parties have had no historical right to petition for visitation does not necessarily imply, as the Supreme Court of Washington concluded, that a parent has a constitutional right to prevent visitation in all cases not involving harm”) (Kennedy, J., dissenting).

(153) . 530 U.S. at 77 (Souter, J., concurring in the judgment). 530 U.S. at 80 (Thomas, J., concurring).

(154) . 530 U.S. at 91 (Scalia, J., dissenting); cf. Calder v. Bull, 3 U.S. 386, 399 (1798) (Iredell, J., concurring).

(155) . Cf. David D. Meyer, “The Constitutionalization of Family Law,” Fam. L.Q. 42 (2008): 529, 557–58. Meyer advocates a “softer approach” to family privacy rights that “eschew[s] strict scrutiny's focus on compelling interests and narrow tailoring for far more indeterminate, intermediate interest-balancing.” Meyer, “Constitutionalization of Family Law,” 558–59; cf. also (p.288) Katharine B. Silbaugh, “Miller v. Albright: Problems of Constitutionalization in Family Law,” B.U. L. Rev. 79 (1999): 1139, 1160; Carl E. Schneider, “Moral Discourse and the Transformation of American Family Law,” Mich. L. Rev. 83 (1985): 1803, 1858.

(156) . Sandra Day O'Connor, Remark, “The Supreme Court and the Family,” U. Pa. J. Const. L. 3 (2001): 573, 575 (citing Santosky v. Kramer, 455 U.S. at 753). O'Connor, “The Supreme Court and the Family,” 575–76 (citation omitted).