Adolescents occupy a peculiar place in law and in policy-making. What constitutes adolescence for the purposes of legal regulation varies, the law typically classifies adolescents either as children or as adults. The legal system’s response to adolescents’ religious beliefs, development, and environments is similarly dichotomous. As already described in chapter 1, sometimes the legal system presents adolescents as especially vulnerable to religious ideas and to normative social pressures (Lee v. Weisman, 1992; Santa Fe School District v. Doe, 2000), while at other times the system emphasizes adolescents’ maturity and ability to resist religious ideas and social pressures (as in Board of Education of West-side Community Schools v. Mergens, 1990). In other contexts, adolescents’ abilities are not even considered worth mentioning; the legal system either views adolescents’ vulnerabilities as adequately protected by their parents (Good News Club v. Milford Central School, 2001) or frames adolescents’ rights as clashes between parental rights and governmental obligations (Wisconsin v. Yoder, 1972). In yet other contexts, the state’s higher interests may be at stake, and those interests may be so compelling that there is no inquiry into parents’ right to direct their children’s upbringing or of adolescents’ abilities to resist the effects of religious proselytizing or to decipher the state’s role in supporting religious beliefs (see Bowen v. Kendrick, 1988). Last, the legal system remains silent in the vast majority of decisions that directly impact adolescents’ religious development and environment; as a result, it often bestows on parents and communities plenary authority to direct adolescents’ religious development and environment (Pierce v. Society of Sisters, 1925).
Although we may lament the lack of an overarching approach to regulating adolescents’ religious environments, an understanding of the legal regulation of adolescents necessarily requires a close examination of the rights of adolescents in different contexts and across different relationships. This chapter details the current understanding of jurisprudence that affects adolescents’ religious development and religious environments. The previous chapter already has established that the law in fact highly regulates religion; it remains for us to explore how the law balances the state’s interests in protecting religious liberties and the religious rights of parents, communities, service providers, and adolescents themselves.
The nature of parents’ religious rights mirrors, and even buttresses, their broad parental rights. The law pervasively grants parents enormous power to control their children’s upbringing and even assumes that parents take that responsibility seriously. The law charges parents with their children’s basic care and with the duty to protect them from harm. As a result, parents enjoy the highest protection against laws that may interfere with their ability to raise their children as they see fit. That authority includes parents’ right to make decisions on adolescents’ behalf on matters broadly ranging from nutrition, medical treatment, and residence to the choice of friends and reading materials. Although the state firmly recognizes parental rights, it places important limitations on the exercise of those rights. Given that society eventually may bear the burden of parental failures, the state subjects parental authority to governmental supervision. As a result, and most notably, if parents fail to provide adequate care, the state can intervene to protect their children’s welfare. Much of the policy debate in this area of law, then, focuses on the allocation of authority between parents and the state. Understanding how the legal system envisions parental rights and delineates its boundaries helps clarify the magnitude and the nature of parents’ religious rights.
Parents’ right to direct the upbringing of their children was established in a now famous trilogy of cases that balanced the role of parents and states in fostering children’s development. In the first case, Meyer v. Nebraska (1923), the Supreme Court established that the Due Process Clause of the Fourteenth Amendment protects parents’ broad authority to raise children as they see fit. The Court unequivocally held that parents could provide for their children’s education without reasonable interference. In Meyer, a teacher had violated a statute that prohibited the teaching of a foreign language to any student who had not passed eighth grade. After having read a German passage to a ten-year-old pupil, the teacher was convicted and fined. The Supreme Court reversed the conviction. Rather than focusing on the rights of teachers, however, the Court held that the statute violated the rights of parents to choose a suitable curriculum for their children. The Court reasoned that parents should be able to make choices for their children without state intrusion and that parents typically act in their children’s best interests. The Court closed by observing, “That the state may do much, go very far, indeed, in order to improve the quality of its citizens, physically, mentally, and morally, is clear; but the individual [parent] has certain fundamental rights which must be respected” (Meyer v. Nebraska, 1923, p. 401). Although this often repeated dictum continues to resur-face in support of parental rights, the resulting legal rule clearly places limits on those rights. Despite the high regard with which the state views parents, it still possesses the ultimate authority to control parental actions so long as the state respects certain fundamental parental rights. Exactly what those rights are, and the circumstances under which they may be infringed, have been the subject of important refinements and continued challenges.
The second case, Pierce v. Society of Sisters (1925), further elaborated on the rights of parents and the reasons states can intervene. In this case, the Court delimited the nature of the state and parents’ obligations. The issue at hand involved a Catholic school’s challenge to an Oregon statute that compelled public school attendance and prohibited other forms of education. The Court noted that the state may retain an important interest in deciding which educational facilities meet the state’s high standards. However, the Court concluded that the statute went too far in mandating that only public education was suitable. The Court found that the statute imposed too heavy a burden on the rights of parents to direct the education of their children. The majority insisted that, notwithstanding the “power of the state reasonably to regulate all schools” (Pierce v. Society of Sisters, 1925, p. 534), the statute nevertheless unreasonably interfered with the “liberty of parents and guardians to direct the upbringing and education of children under their control.” The Court then continued to provide the basic rationale for that rule, noting that:
The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations. (Pierce v. Society of Sisters, 1925, pp. 534–535)
The Court, then, emphasized that parents share the state’s interests in the development of children, that those interests center around the need to prepare individuals to become productive citizens, and that there exists no standardized manner through which individuals learn to fulfill their social obligations.
The third central case, Wisconsin v. Yoder (1972), forcefully upheld Meyer, Pierce, and intervening cases as it delineated who could control children’s upbringing. In Yoder, as has been discussed, Amish parents of fourteen- and fifteen-year-old children were prosecuted and convicted for violating Wisconsin’s compulsory school attendance law, which required children to attend public or private school until age sixteen. The parents claimed that the mandatory school attendance law infringed upon their First Amendment rights because “their children’s attendance at high school … was contrary to the Amish religion and way of life” (Wisconsin v. Yoder, 1972, p. 209). By invalidating the legislation that forced Amish parents to send their children to schools past the eighth grade, the Court took the opportunity to severely limit the state’s power to circumscribe parental rights to raise their children according to their religious beliefs. The Court explained that a “state’s interest in universal education, however highly we rank it, is not totally free from a balancing process when it impinges on fundamental rights and interests, such as those specifically protected by the Free Exercise Clause of the First Amendment” (Wisconsin v. Yoder, 1972, p. 214). Borrowing language from Pierce and from Meyer, the Court reasoned that the role of parents in raising their children is “firmly rooted in American tradition” and “beyond debate” (Wisconsin v. Yoder, 1972, p. 232). The parents’ right to the free exercise of religion outweighed the state’s interest in ensuring education for adolescents. Highly determinative in the balancing was the need to protect the rights of parents during their children’s transition to Amish adulthood. The Court noted that it was precisely because of the critical period of adolescence that parents’ religious rights in this case needed to supercede the state’s interests. Finding that adolescence was a critical period in the development of Amish adolescents and that regular education would increase the chances that Amish adolescents would leave their religion and way of life, the Court held that compulsory public school attendance for older Amish adolescents (but not for younger children) violated Amish parents’ constitutional rights to direct their children’s religious, moral, and educational upbringing.
Although the Yoder case serves as the foundation for parents’ religious rights claims, it also is instructive for the concomitant limits it places on parental rights. The Yoder Court limited its implicit preference for parental religious freedom to cases where the state’s interest did not involve protecting children from harm. The Court noted that Yoder did not raise issues of “harm to the physical or mental health of the child…” (Wisconsin v. Yoder, 1972, p. 230). Although removing adolescents from public schools might limit their opportunities and affect their choice whether to leave their Amish communities, the Court explained that “the power of the parent, even when linked to a free exercise claim, may be subject to limitation … if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens” (Wisconsin v. Yoder, 1972, pp. 233–234). Finding that the teens’ remaining faithful to the Amish community would neither harm Amish adolescents nor burden society, the Court implicitly endorsed a harm standard as a measure of a compelling interest that allows the state to infringe upon even fundamental rights.
The extent to which the Court in Yoder accepted that parents’ religious rights could be infringed highlights the idea that parents may retain a liberty interest in the custody and management of their children but that that liberty comes with a corresponding duty to provide appropriate care. Although Yoder stood for favoring parents’ religious claims, it left undisturbed the general rule that parents must maintain a threshold level of care, even though reaching that level may require acting contrary to a deeply held religious belief. That rule had been firmly established several years earlier, in Prince v. Massachusetts (1944). The legal controversy in Prince started when Sarah Prince, the custodian and aunt of a nine-year-old girl, sought to teach her the practices of her religion and allowed her to help sell religious literature on street corners. Prince continued to practice her faith, despite warnings by a state official—a local policeman—that she was violating child protection laws.
As a result of her persistence, a state court convicted her of violating Massachusetts’s child labor laws. Prince countered that, as a devout Jehovah’s Witness, she had to follow her faith’s principle that children have a religious duty to work before the age of eighteen. Noting that “neither rights of religion nor rights of parenthood are beyond limitation” (Prince v. Massachusetts, 1944, p. 166), the Supreme Court held that enforcement of the state child labor laws had not violated Prince’s Free Exercise Clause right to direct the child’s religious upbringing. In recognizing the state’s preeminent right, the Court wrote: “A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens, with all that implies” (Prince v. Massachusetts, 1944, p. 168). The crippling effects of child employment served as an adequate rationale for Massachusetts to enforce its child labor laws by prosecuting Prince. In vivid language, the Court concluded: “Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves” (Prince v. Massachusetts, 1944, p. 170). Under this line of reasoning, then, the state may act to preserve human life, ensure a productive and self-perpetuating society, and, at the same time, conserve the state’s resources. The Supreme Court has recognized the state’s preeminent right to protect children from serious and irreversible harm; even when faced with Free Exercise Clause challenges, the Court gives weight to an interest in the child’s future freedoms at the expense of the current claims for both parent and child.
Despite continued public debate about the unjust attacks on the rights of parents, cases that directly involve parents’ rights strongly affirm (and actually have helped to create and buttress) an unwavering tradition in jurisprudence on the regulation of adolescents. That tradition privileges the rights of parents and assumes that they will act in their child’s best interests; it provides them with broad discretion to raise their children as they see fit. That tradition is so entrenched and reaches such high levels of regard that infringement can be justified only if it is required by a compelling state interest. As a result, even though parents’ religious rights claims may be neither absolute nor immune from state intervention, few challenges succeed. Regardless of the eventual outcome of any challenges, however, the rights and interests of the adolescents involved do not figure prominently when pitted directly against parental rights except as a means for the state to devise a more general rule and to declare society’s superior interest over the rights of both parents and their children.
Although parental rights tend to be conceptualized in terms of individual rights, they actually involve community interests. This is particularly the case with the religious rights of parents, for those rights frequently include the right to bring up children in a particular religious community. Although analyses generally ignore community rights, these rights do enjoy considerable protection, especially when coupled with a Free Exercise claim. A particular religious community’s rights, then, presents another important dimension of the manner in which the legal system regulates adolescents’ religious experiences. Though community concerns present endlessly varied issues, three cases capture the most important jurisprudential concerns addressed so far by the Supreme Court. The cases involve well-established and stable communities with beliefs and practices that become problematic to the extent that they either are beyond the pale of mainstream norms or otherwise interfere with important social programs.
The first leading case to address a religious community’s rights and efforts to meet adolescents’ needs was a case that we already have recognized as a leading parental rights case. That case, Wisconsin v. Yoder (1972), focused on parental rights but did so in the name of protecting the Amish communal group’s autonomy. One of Yoder’s lessons is that child rearing constitutes a vital community issue, especially for highly distinctive communities. As we have seen, the parents in Yoder defended their rights on the ground that compulsory education beyond the eighth grade violated their right of free exercise of religion. Parents who sent their children to high school, they argued, exposed themselves to the risk of “the censure of the church community, … [and] also endanger[ed] their own salvation and that of their children” (Wisconsin v. Yoder, 1972, pp. 208–209). The Amish community accepted education at the elementary levels as necessary in order for them “to read the Bible, to be good farmers and citizens, and to be able to deal with non-Amish people when necessary” (Wisconsin v. Yoder, 1972, p. 212), but it objected to education beyond that level because it taught values “in marked variance with Amish values and the Amish way of life” and exposed children to a “‘worldly’ influence in conflict with their beliefs” (Wisconsin v. Yoder, 1972, p. 211). These claims acquire particularly powerful legal and practical significance, the plaintiffs argued, because following the law’s secular mandates in this instance would jeopardize the salvation of children, parents, and the entire community.
Although analyses of the case focus on the claims of parents, these claims spoke for communal interests. Given that the Court viewed the Amish community’s objection to formal education beyond the eighth grade as firmly grounded in its central religious concepts, the Court’s Free Exercise analysis focused on the need to protect the religious interests of the community. After emphasizing the sincerity and depth of the Amish belief that secular education posed a threat to both the community and, potentially, to individuals’ salvation, and after stressing the fact that this belief was an integral part of Amish religion, the Court found the state’s interest in compulsory higher education important but not sufficiently compelling to override the Amish claim:
Whatever their idiosyncrasies as seen by the majority, this record strongly shows that the Amish community has been a highly successful social unit within our society, even if apart from the conventional ‘mainstream.’ … We must not forget that in the Middle Ages important values of the civilization of the Western World were preserved by members of religious orders who isolated themselves from all worldly influences against great obstacles… . There is no specific evidence of the loss of Amish adherents by attrition, nor is there any showing that upon leaving the Amish community Amish children, with their practical agricultural training and habits of industry and self-reliance, would become burdens on society because of educational shortcomings. (Wisconsin v. Yoder, 1972, pp. 221–224)
The Court’s concern clearly centered on the clash between the competing demands of the community and the broader society and the extent to which the smaller community could fulfill its obligations toward the larger social group.
The Yoder Court balanced communal and individual interests and found that potential communal clashes essentially override individual interests. The threat to the Amish people’s communal values were neither incidental nor accidental. The Amish feared that exposure to outside contacts and ideas gained by public education beyond a certain level would contaminate their communal culture. The Court considered the three-hundred-year heritage of the faith and the importance of community and lifestyle to its perpetuation. As the Court put it, secondary schooling exposes “Amish children to worldly influences in terms of attitudes, goals and values contrary to beliefs, and by substantially interfering with the religious development of the Amish faith community at the crucial adolescent stage of development, contravenes the basic religious tenets and practice of the Amish faith, both as to the parent and the child” (Wisconsin v. Yoder, 1972, p. 218). From the state’s perspective, on the other hand, that exposure was precisely the point of compulsory education, which it viewed as necessary for fully functioning citizenship. The Court properly observed that compulsory education serves two related but distinct social purposes: it enables children both to function as citizens of the society and to make mature, informed individual choices. Although these purposes sometimes are explained in terms of training in basic skills, education actually is a form of socialization in the culture and values of one’s society (Levesque, 2002). However, framing issues in terms of community clashes ignores the interests of individual Amish adolescents and the fundamental goal of compulsory education—to enable children to make better future choices about their lives in general. Even taking a more communal approach, however, one could posit that the broader society’s interests include equipping children to make future choices free from the authority of a localized community. The concern about “unharnessing” children from the authority of the community aims to empower them to make such informed future choices. Although couched in arguments of individual rights, the Court’s reasoning fundamentally ignores those rights in favor of community concerns. The Court’s action to fore-close the risk that Amish adolescents might choose to leave the community, then, could well be seen to support the community’s overwhelming power to foreclose individual choice, rather than, as the Court reasoned, its success in molding productive citizens who just happen to be Amish. The Yoder decision assumes that Amish adolescents’ religious identity essentially has been determined, that their faith and that of the Amish community are one.
The second and more recent case to address community interests on the basis of religious claims, Board of Education of Kiryas Joel Village School District v. Grumet (1994), essentially presents the converse of Yoder. It examines the extent to which regulations may directly and affirmatively advance a religious community’s peculiar interests. The case involved the village of Kiryas Joel, which New York created as a religious enclave of Satmar Hasidim, a Jewish sect whose distinctive beliefs and practices require virtual separation from others. The village was created under the usual provisions of New York law, which permits residents to petition their town government to form a village within its boundaries. To overcome opposition by nonsectarian residents of the town of Monroe, the community drew the boundaries for the new village so as to include only the land owned by Satmars. In effect, the Satmars were permitted to secede from the secular community to form a religious community. The legal challenge that developed in Kiryas Joel did not involve the state’s role in establishing the enclave. Rather than challenging the incorporation of the separate religious community, the challenge involved the subsequent creation of a special school district designed to accommodate handicapped Satmar children. These children required special education services unavailable in the private religious schools attended by Satmars but available in the secular schools of the Monroe school district. However, when the Satmar children attended the public schools, they suffered bitter emotional distress from being placed in an environment vastly different from their religious community. After most of the Satmar parents withdrew their handicapped children from the public schools, the state responded by creating a special school district to accommodate the handicapped Satmar children’s educational and religious needs.
Despite the state’s laudable attempt to address the Satmar children’s needs, the Supreme Court invalidated the special school district. The Court did not object to the special district because it provided public support for religious education; the services were secular and not notably different from those provided to all state residents. Instead, the Court objected to the state’s accommodation of the Satmars’ religious needs by creating a school district for them alone. The Court viewed the creation of a state-sponsored special school district for sectarian purposes as tantamount to a law delegating “civic authority to ‘the Grand Rebbe’” and a clear violation of the Establishment Clause of the First Amendment.
The third leading case does not explicitly deal with communal religious claims but does reveal another dimension in the manner in which the legal system addresses group claims, including religious claims, in the context of the rights of children. That case, Mississippi Band of Choctaw Indians v. Holyfield (1989), illustrates the Supreme Court’s responses to legislative attempts to gain special protection for cultural minorities, in this instance indigenous native peoples protected by the Indian Child Welfare Act (1978). As understood by the Court, the Act was prompted by the wholesale removal of Indian children from Indian homes through adoption by or foster care placement in non-Indian families, which accounted for approximately 90 percent of placements involving Indian children. Although the Act was a response to concerns about harm accruing to the parents and their children as a result of the separations, the Act centered on the harm to the Indian tribes and their culture. Children placed with non-Indian families were denied exposure to Indian culture and traditions; the tribes were thus denied “the only real means for the transmission of the tribal heritage” and were undercut in their “ability to continue as self-governing communities” (Mississippi Band of Choctaw Indians v. Holyfield, 1989, p. 34). In order to “protect the rights of the Indian child as an Indian and the rights of the Indian community and tribe in retaining its children in its society” (Mississippi Band of Choctaw Indians v. Holyfield, 1989, p. 37), Congress provided the tribes with nearly complete authority over child custody. Tribal courts were given exclusive jurisdiction over custody proceedings involving Indian children who resided or were domiciled within the tribe’s reservation. In the case of children not domiciled on the reservation, tribal courts were granted presumptive jurisdictional preference over state courts: on petition of the parent or the tribe, custody jurisdiction would be transferred to the tribe absent good cause, an objection by either parent, or declination of jurisdiction by the tribal court. The reach of the tribal courts, then, could essentially lead anywhere.
The case that challenged the Act’s long reach, Holyfield, involved an interpretation of the scope of the exclusive jurisdiction provisions. Holyfield specifically addressed whether two babies born two hundred miles off the reservation to parents who were both residents and domiciliaries of the Choctaw Reservation were, by virtue of their parents’ domicile, themselves residents of the reservation. The state supreme court held that they were not; it emphasized the mother’s considerable efforts to give birth off the reservation and the fact that the parents had arranged for adoption by a non-Indian couple (with whom the children had resided for three years by the time the case reached the Supreme Court). The Court found these considerations irrelevant and ruled that the statute intended that the child’s domicile be that of the parents, regardless of the parents’ preferences regarding placement in a non-Indian home. The Court emphasized that the Indian Child Welfare Act (1978) sought primarily to protect the tribe’s interest, an objective that superseded contrary parental claims.
Without doubt, the Act establishes the tribe’s right to preserve its culture and community over and against both the rights of the natural parents and the prerogatives of the larger society, the state. Most striking about the Act and the Supreme Court’s approval is that both place the welfare of the children in the hands of the Indian community solely for the sake of the community. The move seems quite radical in its apparent defiance of the parents’ rights (here the parents clearly had objected) and in its disregard for the state’s own prerogatives in adoption policy. Yet, by actually placing child-rearing rights in the hands of communities, Holy-field actually takes only a modest step beyond Yoder. The Court in Yoder had skirted the question of how adolescents’ own interests in schooling would be taken into account as it subordinated those interests to the interests of the parents and of the Amish community. In both cases, then, the local community norms trumped those of the broader society and ignored the rights of the children involved.
Although Holyfield and Yoder have important similarities, there are also key differences. We can easily move beyond the fact that Holyfield deals with American Indian claims and sovereignty issues. If the legislature and the Court had had a higher regard for the rights of individual parents or, even more radical, the individual rights of children, finding for them would not have been that unimaginable. Recall, for example, that, in Lyng v. Northwest Indian Cemetery Protective Association (1988), the Court did not find constitutional harm when Native Americans challenged the Forest Service’s decision to construct a logging road through sacred lands. The federal government has the prerogative to take precedence over claims that its actions infringe on religious and other liberties that the federal government itself has bestowed on groups (see Brown, 1999). For our purposes, however, it is important to observe the ways in which the distinctions between Holyfield and Yoder highlight the extent of community rights. The Amish in Yoder did not seek plenary legal jurisdiction over their adult members; Amish parents, representing their community and their children, asked only that the state leave them alone. The Amish community did not challenge the rights of children from other communities to go to public schools. Yet, in principle and in effect, this is the power Holyfield granted the tribe. The Court required children who had become part of one community and family to return to the control of a community foreign to them and to those they had not viewed as their parents. From this perspective, there is only a subtle distinction between these two cases. The parents in Holyfield were not irrevocably bound to the community; the law presumably allowed the parents to exercise their preference by forfeiting their domicile in the reservation. Rather than doing so, the parents sought to retain the benefits they enjoyed as residents on the reservation without submitting to all of the community’s norms. The Indian Child Welfare Act (1978) required parents simply to choose between living by the community’s norms and leaving the community. Given that the parents did not want to leave the community, the civil society encompassing the community could intervene, but only to enforce the community’s right to self-governance. Just as in Yoder, the Court in Holyfield acted to ensure that the community was left alone.
Taken together, the three cases reveal the conflict between the need to respect different conceptions of the “good” and the need to promote conditions of individual choice. In essence, the tension involves the extent to which civil society can protect what “right-thinking people” know or believe and what they can reasonably demand that others know or believe. In determining how to balance these concerns, the cases are consistent. In Yoder, the claims of the community trumped those of the broader society, generally because the community claim mirrored the broader society’s most ambitious aims in producing citizens. In Kiryas Joel, the claims were trumped because the community asked more than to be left alone; respecting its claims required affirmative assistance to the community singled out for specific governmental support. In Holyfield, the group’s interests survived the challenge; the Court ruled that, as long as individuals want to be bound by particular communities, they should follow its rules. The rule that emerges, then, supports the view that when a religious community seeks protection, the Court will protect the religious community’s interest in being left alone but will not offer it affirmative assistance. Where the rights and needs of adolescents fit into these patterns remains to be determined, in these cases, the potential individual interests of adolescents were not separated from the conflict among the parents, the communities, and the state. In fact, in all three cases, we do not know much about what the “children” wanted, even more important, the cases did not require that we know their preferences.
The great power bestowed upon parents and localized communities finds its mirror opposite in the current articulation of religiously affiliated service providers’ rights. In general, the state may severely constrict interactions between professionals and adolescent clients. The limitations essentially derive from the law’s assumptions about adolescents’ immaturity and incompetence and from the general rule that parents determine children’s access to social services. The former generally results in limiting access to services, unless (1) the service is not very intrusive or an emergency requires intervention, (2) the service is intrusive but individual adolescents evidence a level of maturity and competence that justifies allowing them to determine access to services, or (3) the public’s interest, such as public health and safety, is so great that not allowing access would be detrimental to either the adolescent or society (see Levesque, 2000a). The last rule, with some protections against parents’ actions that would not be in their children’s best interests, generally means that parents can both require their adolescents to receive services and opt out of services for them (Levesque, 2000a). These legal rules provide the appropriate context from which to understand service providers’ rights to follow their own religious principles and firmly held convictions, for they highlight the remarkable extent to which the state may limit adolescents’ access to services.
The manner in which the legal system regulates service providers’ interactions with adolescent clients directly bears upon the extent to which the religious beliefs of service providers may impact the services adolescents receive. Although a complex set of laws regulates communications and actions between service providers and their clients, three areas of regulation determine the relationships’ boundaries from the providers’ perspectives. The first concern is the extent to which the government can distort interactions, including those that would be influenced by religious beliefs, between service providers and adolescent clients. The second issue is the extent to which the government can support religious providers in their provision of services that necessarily are influenced by religious beliefs. The third major issue is the extent to which individual and institutional service providers may refuse to provide services because of profoundly held religious beliefs.
The law that regulates the first issue—how service providers can conduct interactions that would be proper and legal except for the government’s desire to encourage certain outcomes—imposes restrictions on service provider speech. The state may severely limit discussions that occur between clients and professionals in order to foster what the state sees as the best outcome among competing legally permissible ones. Two recent cases help clarify how the state can direct interactions; both cases deal with a morally contentious and religiously divisive issue that directly affects adolescents—family planning.
Rust v. Sullivan (1991) asked the Supreme Court to determine the constitutionality of the interpretation of Title X by the Department of Health and Human Services (HHS). This legislation partly authorized HHS to administer grants and enter into contracts to establish and operate family planning projects. The regulation at issue involved a panoply of restrictions upon the conduct and speech of Title X grantees, including physicians who worked in publicly funded family planning clinics. The speech-related regulations prohibited physicians from providing “counseling concerning the use of abortion as a method of family planning” and from providing referrals to women seeking abortions (Rust v. Sullivan, 1991, p. 193). In response to a specific request for a referral to an abortion provider, the regulations suggested that physicians state that “the project does not consider abortion an appropriate method of family planning and therefore does not counsel or refer for abortion” (Rust v. Sullivan, 1991, p. 193).
The physicians who challenged the regulations argued that the regulations interfered with the First Amendment rights of Title X health-care providers and Title X patients. They alleged that the regulations (1) impermissibly discriminated among grant applicants on the basis of their views on abortion and (2) impermissibly conditioned the receipt of Title X funds upon the surrender of a fundamental right to freedom of expression. In addressing the doctors’ arguments, the Court’s majority did not begin by determining the level of protection appropriate for doctor-patient speech. The majority opinion did not include a First Amendment analysis of the regulations from the standpoint of either doctors’ speech or patients’ right to receive medical information. Instead, the Court’s analysis of the speech-related restrictions was rooted in its interpretation of the doctrine of unconstitutional conditions. Under the doctrine of unconstitutional conditions, “government may not condition the receipt of its benefits upon the nonassertion of constitutional rights” (Tribe, 1988, p. 681). Relying on this analysis, the Court determined that the HHS regulations were a constitutional exercise of the government’s power to fund some activities and not others. According to the Court, conditioning the receipt of federal funds on remaining silent about abortion simply conforms with the government’s power to make funding choices in accordance with its preference for childbirth over abortion. With respect to the impact of the regulations upon physicians’ speech, the Court explained that:
a doctor employed by the project may be prohibited in the course of his project duties from counseling abortion or referring for abortion. This is not the case of the Government “suppressing a dangerous idea,” but of a prohibition on a project grantee or its employees from engaging in activities outside of its scope. (Rust v. Sullivan, 1991, pp. 193–194)
Thus, the Court endorsed the proposition that government may, to promote its reasonably held viewpoint, censor the speech of publicly funded speakers, including physicians.
Because the regulations at issue in Rust applied only to publicly funded physicians, and because the case was decided under the doctrine of unconstitutional conditions, the Rust opinion left unclear whether the Court would permit the government to impose requirements on the content of doctor-patient speech that occurred in private settings. In Planned Parenthood v. Casey (1992), the Court jettisoned this implied limit on the government’s power to regulate the content of physicians’ speech. Casey involved the constitutionality of a Pennsylvania statute that regulated abortions. In addition to imposing limitations on physicians’ conduct, the statute’s “informed consent” provision required that physicians tell every patient seeking an abortion about the health risks of abortion and childbirth and the probable gestational age of her fetus. It also mandated that physicians tell patients about the availability of printed materials that described the fetus and listed agencies that offered alternatives to abortion; stated that the child’s father was liable for financial assistance to support the child (even if he had offered to pay for the abortion); and stated that medical assistance might be available for prenatal care, childbirth, and neonatal care.
Unlike the restrictions at issue in Rust, the provisions in Casey did not silence physician speech. Like the HHS regulations, however, the Pennsylvania statute’s speech-related provisions directly regulated the content of physician-patient discourse for the purpose of persuading patients to elect a governmentally preferred course of action. Thus, the Court in Casey again faced the question of whether the First Amendment prohibited the government from imposing viewpoint-based restrictions on doctor-patient speech. The Court’s free-speech analysis was based on whether the restrictions “unduly burden” a woman’s privacy right to choose an abortion and concluded that the speech-related provisions did not violate the First Amendment and, thus, that the government could use doctor-patient conversation as an instrument for expressing a viewpoint or for persuading patients to opt for a governmentally preferred course of action. Casey, then, moves beyond regulating speech that occurs in a publicly funded setting to allow the government to impose content regulations in private settings. While the plurality acknowledged that the challenged regulations implicated physicians’ speech rights, they summarily dismissed this concern, stating that advising patients is merely a “part of the practice of medicine, subject to reasonable licensing and regulation by the State” (Planned Parenthood v. Casey, 1992, p. 2824). Under Casey, then, the authority to license and regulate the practice of medicine empowers states to compel publicly and privately financed physicians to make certain statements to patients as long as those statements further a legitimate state interest and are not false or misleading. This approach essentially locates the governments’ power to regulate the content of doctor-patient speech in the states’ police power to license and regulate physicians.
Rust and Casey stand for the proposition that the state may limit the contents of service provider-client discussions, but the government’s power to compel speech has its limits. In Casey, the Court did not vest the state with an absolute power to dictate the content of physicians’ statements to patients by compelling physician speech. Regulations are unconstitutional if they require physicians to make statements that are false or misleading. Under Rust, restrictions on publicly funded physicians are unconstitutional if patients have an “all-encompassing” relationship with their doctor that gives rise to a reasonable expectation of receiving comprehensive medical advice. Likewise, the government may not impose viewpoint-based restrictions that do not afford publicly financed physicians the opportunity to distance themselves from the state’s message. Given the types of regulations presented in the cases, however, the law clearly may go far in regulating interactions between service providers and clients. Rust and Casey reveal that the Supreme Court adheres to the view that the First Amendment does not prohibit the government from attempting to influence patients’ medical decision making by regulating the content of doctor-patient discourse, whether it occurs in a private or a public setting.
Service providers who interact with adolescent clients also have rights, which raises the issue of whether the government may support religiously affiliated service providers in their efforts to provide services biased by religious beliefs. The Supreme Court has spoken to this issue in a leading case that focuses on how the government may support the provision of limited services and include religious providers to further governmental ends. That case, Bowen v. Kendrick (1988), also involves family planning matters and adolescents. At issue in Bowen was the Adolescent Family Life Act (“AFLA”) (1982, 1988), which supplies federal funds to both governmental and independent-sector nonprofit organizations that do research or provide services (counseling and education) for adolescents in the areas of premarital sexual relations and teenage pregnancy. The Act sought to support these programs by promoting the use of other family members, religious and charitable organizations, voluntary associations, and other groups. Rather than simply including religious organizations as possible grant recipients, however, the statute specifically calls for the active participation of religious organizations in providing the specified services and does not limit their use of granted funds to secular purposes. In addition, AFLA increases the likelihood that funds will go to religious organizations, given that the Act stresses premarital abstinence, prohibits granting money for “family planning services,” and grants funds to programs that “do not provide abortions or abortion counseling or referral” or encourage abortion (Bowen v. Kendrick, 1988, pp. 596–597).
Because religious organizations were included among the recipients of the grants, a group of taxpayers challenged AFLA, arguing that funding religious organizations violated the Establishment Clause. The Supreme Court upheld the statute on the grounds that the statute did not violate the Clause “on its face”; the Court remanded for reconsideration of the “as-applied” challenge in instances in which grant recipients were pervasively sectarian organizations. In its analysis, the Court applied the Lemon test’s three major concerns, reviewed in chapter 4. Regarding Lemon’s first prong, that the legislation have a secular purpose, the Court was highly deferential to the legislature. The Court agreed, along with both parties involved, that, as a whole, furthering religious concerns was not the sole motivation behind the Act and that AFLA had a valid secular purpose—to prevent teenage pregnancy and premarital sex, both of which cause economic and social injury. Lemon’s second prong requires the Court to determine whether the principal or primary effect of the law impermissibly advances religion. The Court identified nothing inherently or specifically religious about the activities or social services provided by the grantees to adolescents with questions about premarital sexuality.
Moreover, simply because AFLA expressly required religious organizations to be considered among the available grantees and demanded that the role of religion be taken into account by secular grantees, those provisions did not have the effect of endorsing a religious view of how to solve the problem under consideration. As to grantee eligibility, the Court interpreted AFLA as religion-blind because Congress required that all organizations, secular and religious, be considered on an equal footing. Further, the legislation did not violate the Establishment Clause merely because there was an overlap between certain religious beliefs and the moral values urged by AFLA. Critical to the result was the majority’s refusal to hold that faith-based teenage counseling centers were necessarily pervasively sectarian. Although the federal assistance took the form of a direct cash grant, the First Amendment was not necessarily offended as long as the grantee was not pervasively sectarian. Since the Court found no reason to believe that any significant portion of the funds necessarily would flow to “pervasively sectarian” institutions, it perceived no risk that the organizations would use the funds to advance their religious mission. The third prong of Lemon requires the Court to consider whether the statute in question fosters an excessive administrative entanglement between religious officials and the offices of government. The Court noted that HHS appropriately could (and must) monitor AFLA grantees to prevent the misappropriation of public funds. HHS did not require faith-based grantees to follow any federal guidelines concerning the content of the advice given to teenagers or otherwise modify their programs. HHS also did not address nondiscrimination requirements as they pertain to the served beneficiaries. Since the Court did not view the religious grantees as necessarily pervasively sectarian, it logically concluded that the federal agency’s limited oversight could not be deemed excessively entangling. In deciding the case, the Court spoke in sweeping terms as it sanctioned governmental aid on the basis of equality in the rules for awarding grants. The Court spiritedly declared that “religious institutions need not be quarantined from public benefits that are neutrally available to all” and that “this Court has never held that religious institutions are disabled by the First Amendment from participating in publicly sponsored social welfare programs” (Bowen v. Kendrick, 1988, p. 609). The Court’s vibrant language firmly ensures religious individuals and institutions an important (if not primary) place among publicly funded service providers.
The last central issue involving service provider’s rights concerns the extent to which individual and institutional service providers may refuse to provide services because they violate the provider’s profoundly held religious beliefs. Although it would seem that this would be a settled area of law, the law actually leaves the rights of service providers largely undetermined and underdeveloped. The degree to which service providers can follow their religious beliefs and refuse to take part in objectionable services remains somewhat unclear. The most established area of law involves physicians’ religious convictions in the context of whether they can refuse to participate in abortion, sterilization, or the use of abortifacient or to carry out directives to withdraw feeding tubes. Although no Supreme Court cases address this area of law, states have enacted many forms of protections, largely in response to the Court’s highly charged abortion rights cases. Generally, these statutory protections address medical issues and protect providers from employers that would retaliate against professionals who refuse to perform specific procedures (Wardle, 1993). Relatedly, a complex set of laws regulates the extent to which institutions can avoid providing services that conflict with religious principles espoused by the religious institutions that provide financial support for the service provision. Generally, religiously affiliated institutions may be required either to provide offending services or to make alternative arrangements if they receive state or federal assistance; otherwise, they remain private institutions that may determine the nature of their service provisions (see White, 1999).
Although quite unclear in many regards, the rights accorded service providers clearly illustrate the extent to which the legal system regulates the nature of the services adolescents receive. We already have seen that Rust and Casey ruled on the important lesson that service providers may not be allowed to provide services they deem appropriate and that they may be required to express viewpoints that they consider inappropriate. In addition, medical providers seemingly are protected from being required to perform procedures they find objectionable. It may well be that other providers will gain similar rights, but this remains to be determined. These issues clearly affect adolescents’ environments. Yet, these concerns, especially the refusal of service providers to participate in services they personally find objectionable, have not been addressed by the law or by those seeking to establish the nature of adolescents’ legal rights. The legal system has yet to address fully the extent to which adolescents can be protected by the religious rights of service providers and, equally important, the extent to which the religious rights of service providers factor in services when the interactions of adolescents and service providers are not the subject of close regulation. The law typically assumes that individuals can determine for themselves whether the offered services are biased and that they have access to other services if they choose not to receive services they see as biased. How adolescents can realistically access services and when they have an independent right to do so remain debatable and have not been addressed in analyses of adolescents’ rights, to which we now turn.
As we already have seen, understanding the nature of adolescents’ rights means understanding the rights of others and the extent to which those rights impact adolescents’ experiences and environments. The central theme in adolescents’ rights jurisprudence is the principle that parents control the upbringing of their children. It is therefore not surprising to find that the legal system generally has not recognized that adolescents have the right to direct their own religious upbringing and environment (see Wisconsin v. Yoder, 1972). The Supreme Court has noted, however, that adolescents may have religious rights (see, e.g., Prince v. Massachusetts, 1944, p. 165). Although these two approaches to adolescents’ religious rights seemingly conflict, the Court has not gone so far as to hold that adolescents have constitutional religious rights separate from their parents’ right to religious liberty. As a result, the extent to which adolescents’ own rights are recognized when they conflict with those of their parents remains unclear. There is some basis for the claim that adolescents retain constitutional rights inside their parents’ homes vis-à-vis their parents, and there is even more basis for the claim that adolescents have religious rights outside their family environment. Our analysis necessarily must consider both of these contexts, as well as the extent to which adolescents’ religious claims may diverge from those of their parents.
The U.S. Supreme Court certainly has not foreclosed the possibility that adolescents may have recognizable religious rights separate from those of their parents. Despite its deference to parental rights and obligations, the Court repeatedly has held that adolescents possess constitutional rights. Prince v. Massachusetts (1944), the leading case in allowing state restrictions on a guardian’s free exercise right to control her ward’s upbringing, arose in the context of the child’s own free exercise claim. In strikingly broad dicta, the Court noted that “the state has a wide range of power for limiting parental freedom and authority affecting the child’s welfare; and that includes, to some extent, matters of conscience and religious conviction” (Prince v. Massachusetts, 1944, p. 167). The ultimate result of Prince, however, belies that proclamation. Even though the minor knew that her proselytizing efforts were necessary to avoid her “condemnation ‘to everlasting destruction at Armageddon’” (Prince v. Massachusetts, 1944, p. 170), the Court nevertheless restricted her ability to act on her unequivocally articulated beliefs, even when they clearly complemented those of her legal guardian. In light of the other cases we have reviewed that place the control of adolescents’ religious rights squarely in the hands of parents, especially Pierce v. Society of Sisters (1925) and Wisconsin v. Yoder (1972), Supreme Court jurisprudence cannot be read as clearly recognizing that children have religious claims distinct from their parents’ religious rights.
Given that constitutional case law does not stand for the proposition that adolescents may not have an independent right to exercise their religious dictates and that cases involving adolescents’ religious rights skirt this concern, it seems reasonable to turn to the Court’s other analyses of adolescents’ First Amendment rights to discern the potential scope of adolescents’ religious rights. The high-water mark of this area of the law, at least in terms of efforts to recognize and protect adolescents’ independent First Amendment rights, came in the form of a challenge to the rights of three teenagers to wear black armbands to protest the Vietnam war. In that case, Tinker v. Des Moines Independent Community School District (1969, p. 511), the Court, for the first time, stated that “students in school as well as out of school are ‘persons’ under our Constitution” and that they possess “fundamental rights which the State must respect.” Although Tinker still stands and ushered in a period of high hopes, it did not provide the expected, and even broadly assumed, breakthrough in adolescents’ rights. The cases that followed curtailed Tinker’s apparently broad recognition of adolescents’ First Amendment rights (see Hazelwood School District v. Kuhlmeier, 1988), because of the legitimate need to shield adolescents from themselves and to protect broader social interests (see Ginsberg v. New York, 1968). Even more problematic for efforts to champion adolescents’ own religious rights is the remarkable extent to which, in even the leading cases that boldly proclaim adolescents’ rights, adolescents’ interests and views often are essentially indistinguishable from those of their parents (see West Virginia State Board of Education v. Barnette, 1943; Tinker v. Des Moines Independent Community School District, 1969). Indeed, the decisions that purportedly proclaim adolescents’ own First Amendment rights may be read as supporting parents’ right to impart their values to their children and to encourage their children to express those views and values against state claims aimed at limiting this parental right. Thus, there appears to be a fundamental rule that minors may have First Amendment rights, but those rights are much less broad in scope than those of adults, especially those of their parents and other caretakers (for a review, see Levesque, 2000a, 2002).
Cases outside First Amendment jurisprudence also may offer insight. As with the history of First Amendment cases that apparently recognize adolescents’ rights, only to be followed by other cases that limit them, these cases also mitigate against claims that adolescents possess religious rights independent of their parents. In cases where assertions of adolescents’ constitutional rights directly or indirectly conflict with those of their parents, adolescents commonly have failed to secure separate constitutional protection as the courts adopt a stance deferential to parents. This approach rests on the law’s concept of the family, in which parents are presumed to possess what the child lacks in maturity, experience, and capacity for judgment. The approach also rests on the recognition and assumption that “natural bonds of affection lead parents to act in the best interests of their children” (see Parham v. J.R., 1979, p. 602). According to this approach, although the interests of the adolescent and parent may conflict, the family relationship fosters a natural accommodation of each to the other. The natural accommodation helps account for the high interest in protecting family relationships made even more evident in the leading parental rights case, Pierce v. Society of Sisters (1925). As it struck down the Oregon statute forbidding sectarian education, the Supreme Court highlighted both the “right of parents to choose schools where their children will receive appropriate mental and religious training” and also “the right of the child to influence the parent’s choice of school” (Pierce v. Society of Sisters, 1925, p. 532). Parents and children have the right to choose between public schools and available sectarian alternatives; strife within the family may exist, but the family is nevertheless presumed to operate on mutual self-interest. Intrafamily resolutions of potential conflicts are deemed preferable to any judicially imposed balancing of the conflicting interests, an approach that raises the specter of state standardization of its children and that seems inimical to both the letter and the spirit of the Constitution (see Meyer v. Nebraska, 1923, pp. 399–403; Pierce v. Society of Sisters, 1925, p. 535).
We have seen, however, that there are clear exceptions to the conditions in which parents may raise their children with minimal state interference. The state is not without control over parental discretion when that discretion may jeopardize the children’s physical or mental health. The most far-reaching, and controversial, exception to the parent-deferential approach to adolescents’ constitutional rights within their families is the Court’s analysis of a minor’s right to obtain an abortion. That recognition called for the establishment of a state-operated mechanism to facilitate the exercise of minors’ constitutional rights independent of their parents’ support or even knowledge (e.g., the judicial bypass that allows sufficiently mature adolescents to decide whether to obtain abortions without parental consent or notification; see Bellotti v. Baird, 1979; Planned Parenthood v. Casey, 1992; Levesque, 2000a). Unlike the First Amendment cases we have reviewed, however, these cases rely on the right to privacy, and it remains to be seen whether the analysis controls other First Amendment cases.
Commentators who have examined the religious rights of children note that the exception to parental discretion based on the constitutional principle of privacy may support an argument for recognizing children’s free exercise rights (see Steinberg, 1995; Buss, 1999). These commentators, however, have not actually made the argument, they have contented themselves with noting that it can be made. Presumably, the right-to-privacy cases could help support adolescents’ religious rights claims to the extent that the Constitution explicitly protects the free exercise of religion, it seems at best disingenuous to place a higher value on an individual’s right to make a decision regarding abortion than on the right to worship as one pleases.
Although it may seem jurisprudentially reasonable and feasible to graft the Court’s reasoning in cases involving adolescents’ abortions (privacy) onto cases involving religious rights, the argument actually faces important challenges. At least as envisioned by the Court, the abortion decision remains unique. The Court seemingly has decided that the abortion decision requires greater autonomy from one’s parents and has viewed these privacy decisions as sui generis, rather than as extending to other constitutional rights, given that the decision is irreversible, urgent, and more grave (see Bellotti v. Baird, 1979, p. 639). Even if it could be argued that decisions about having an abortion and practicing a given religion are similar and must be similarly respected, it is important to note that it remains to be determined whether even the right-to-privacy cases respect adolescents’ rights (see Levesque, 2000a). Arguments about adolescents’ rights to privacy caution against championing adolescents’ religious rights through parallel mechanisms (such as judicial bypasses); use of currently envisioned mechanisms would not necessarily result in fostering adolescents’ exercise of their religious rights, even though these rights would be formally recognized. The practical operation of adolescents’ religious autonomy would enlist the state (generally in the guise of the court system) in determining whether the religious decision at issue was best for the individual adolescent. This role raises rather challenging issues, such as the competence of courts to understand adolescents’ needs, the potentially massive intrusion of the courts in family decision making, the high risk that harm would result from efforts to determine adolescents’ religious beliefs, and the assumption that adolescents lack the experience, perspective, and judgment to influence important decisions that affect them. Given these challenges and the inability of courts and commentators to address them satisfactorily, it is not surprising to find that the legal system generally has not addressed adolescents’ right to practice their own religious beliefs, even when those beliefs do or might conflict with those of their parents.
As we also have seen, although parents retain powerful rights and although society exhibits a tendency to distrust state involvement, the state does not always stay out of familial affairs and decisions that impact adolescents’ religious beliefs. Although intact families may provide no occasion for the state to intrude and inquire as to an adolescent’s preferences, when families fracture or are at risk for fracturing the state may intervene. This intervention typically occurs in two contexts. The first context involves the parents’ request for state intervention during separation or divorce. In those instances, judicial proceedings customarily elicit and give due weight to adolescents’ views (Drobac, 1998). These inquiries may be most relevant in deciding the minor’s best interests and in respecting the development of his or her religious identity, but they do not amount to granting independent rights to the adolescent. Courts generally ignore teens’ viewpoints in cases where the parents agree, and courts have not addressed whether children have separately cognizable rights of religious exercise.
The second context for state intervention involves risks of harm, or potential harm, to the adolescent or to societal interests. In these instances, the state may limit parental rights in favor of the state’s own obligation to protect the adolescent or otherwise to recognize the adolescent’s rights. When the state protects adolescents in this manner, however, adolescents again do not necessarily control their own religious rights. Rather, the state controls adolescents’ right to protection and generally determines the nature of that protection. The state, through its officials, essentially becomes a substitute parent to guard against parental failure (this was the result, for example, in abortion cases where the pregnancy may be assumed already to have fractured the family, as evidenced by the minor’s refusal to consult with her parents). Even inquiries that do infringe on parental discretion, then, do not necessarily mean that the legal system recognizes adolescents’ independent rights.
As expected, the adolescents’ rights we have just highlighted may not apply where parental authority is reduced and state control is increased. As we have seen, the nature of adolescents’ rights varies in different situations, especially in contexts that may not involve direct parental control and that may involve the rights of other adults. Adolescents may gain greater control over their rights when they are deemed mature minors or when other circumstances (such as public health or the need to preserve democratic principles) warrant granting them greater control. Adolescents may be deemed to possess rights that relate to their religiosity, most notably in contexts that are outside of direct parental control.
Although the legal system typically does not directly address the rights of adolescents and seemingly prefers to address the rights of those who can exert control over them, recent jurisprudence has explored the nature of adolescents’ rights outside familial contexts. That jurisprudence typically involves educational rights and public school environments. In fact, this seems to be the only context in which the Supreme Court addresses adolescents’ own religious rights. Although it remains unclear how the conception of adolescents’ rights in these contexts may transfer to other contexts, jurisprudence in this area is instructive, since school settings offer a peculiar context that necessarily balances the rights of parents, communities, those who implement legal rules (school boards and teachers), peers, and adolescents themselves. The balancing in this context seems quite significant, given the vast power schools wield to socialize students and the vast power the law grants parents and communities to socialize their children to function within their own environments. Thus, the lessons learned from this area of law tell us much about the nature of adolescents’ rights and how they are balanced with other people’s rights and with broader social interests. In educational contexts, two related situations that directly involve adolescents warrant close analysis.
The first situation involves the permissibility of private, nondisruptive religious exercises by students. Like other jurisprudence involving religion, Supreme Court jurisprudence on students’ voluntary participation in devotional activities has changed dramatically in recent years. From the 1960s well into the 1980s, for example, the Supreme Court interpreted the Establishment Clause as barring daily prayer and Bible reading in public schools. Most notably, in Wallace v. Jaffree (1985), the Court concluded that an Alabama statute that permitted a moment of silence “for meditation or voluntary prayer” was unconstitutional because it indicated the state’s intent that prayer be considered the favored practice (Wallace v. Jaffree, 1985, pp. 40, 60–61). The Court found it irrelevant that participation was voluntary; the simple fact that such devotionals were sponsored by public schools abridged the First Amendment. Given the Court’s ultimate ruling, it is not surprising to find that the case fostered the general presumption that the Establishment Clause barred religious speech from governmental forums. Although the Wallace decision might at first appear to be an effort to remove all varieties of religion from schools, its real target was official observances or sponsorship of religion, not the private free exercise of religion in the schools. The Court plainly made this point when it emphasized that “the legislative intent to return prayer to public schools is, of course, quite different from merely protecting every student’s right to engage in voluntary prayer during an appropriate moment of silence during the school day” (Wallace v. Jaffree, 1985, p. 59). The Court left open the possibility that a moment of silence law could be valid if it was more neutrally worded and did not carry the heavy legislative history baggage attached to the Alabama statute. The Court’s ruling was much more measured than many believed; not surprisingly, the Court soon refined the nature of permissible devotional activities and increasingly allowed religious practices in public settings, even including, as we explore later, moments of silence for prayer in public schools.
Refinements in the Supreme Court’s approach to devotional experiences came most obviously in Lee v. Weisman (1992). In Lee, the Court faced the question of whether a prayer given by a clerical member as a part of an official school graduation ceremony violated the religion clauses of the First Amendment. The prayer was actually given at a middle school graduation ceremony, although the Court held that the point was not moot because the objecting student was also likely to face a similar invocation and benediction at her high school graduation ceremony.
The challenged activities in this case started when the school principal invited a rabbi to deliver prayers at the graduation exercises. Knowing that religious invocations could offend some individuals, the principal provided the rabbi with a pamphlet entitled “Guidelines for Civic Occasions” and advised the rabbi to offer a nonsectarian prayer. The rabbi complied and gave two prayers that lasted no longer than a minute each, including a “respectful” moment of silence both before and after each prayer.
Despite the principal’s and the rabbi’s efforts to remain nonsectarian, the Court held that even this short, nonsectarian, nonproselytizing prayer violated the Establishment Clause because it coerced students into participating in a state-sponsored religious exercise. The majority unequivocally asserted its position:
the sole question presented is whether a religious exercise may be conducted at a graduation ceremony in circumstances where, as we have found, young graduates who object are induced to conform. No holding by this Court suggests that a school can persuade or compel a student to participate in a religious exercise. That is being done here, and it is forbidden by the Establishment Clause of the First Amendment. (Lee v. Weisman, 1992, p. 599)
The Lee court noted that the “dominant facts” that “marked and controlled” this decision were that the state officials controlled the prayers given at the graduation ceremony and that the attendance of students who objected to the prayer was essentially mandatory (Lee v. Weisman, 1992, p. 586).
Lee is particularly noteworthy for the various jurisprudential doctrines the Court harnessed to limit devotional activities in schools. The first factor in the Court’s decision concerned whether the prayer was state sponsored. The Court found that the principal’s determination that a prayer would be said was the equivalent of a state mandate that a religious exercise be held at the graduation ceremony. The principal also decided who would give the prayer. In addition, the Court observed that the principal controlled and directed the content of the prayers by furnishing the invited rabbi with guidelines. The Court stated that “‘it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government,’ and that is what the officials attempted to do” (Lee v. Weisman, 1992, p. 588). Another factor in the Court’s decision involved the mandatory nature of attendance at the graduation ceremony. Although attendance was not required and students could receive their diplomas without attending the ceremony, the Court observed that graduation is one of life’s most important events. Missing graduation would mean the “forfeiture of those intangible benefits which have motivated the student through youth and all her high school years” (Lee v. Weisman, 1992, p. 595). Noting that the Constitution forbids the state from exacting religious conformity from students as a price for attending graduation, the Court rejected the school board’s argument that students voluntarily attend graduation exercises and can miss them if they disagree with the recitation of an invocation and benediction. Finally, the Court considered the unique coercion present in public schools, which places primary and secondary school children at particular risk. In its analysis, the Court noted that students were under subtle psychologically coercive pressure and had no alternative that would have allowed them to avoid an appearance of participation in the prayer. The Court determined that this type of coercion clearly violated the Establishment Clause. Included in the controlling opinion is a caveat that “what to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever … to be an attempt to employ the machinery of the State to enforce a religious orthodoxy” (Lee v. Weisman, 1992, p. 592). The result, reinforced by an emphasis on the significance of “private” peer group pressure on possible dissenters, makes a constitutional violation possible even when the state itself is not the direct agent of the religious exercise. State inaction is just as important as state action if that inaction can reasonably be perceived as an endorsement of religious beliefs. Although the concept of private action remains controversial in this context, Lee at least stands for the principle that the government cannot facilitate private prayer in circumstances that force dissenters to assent to that which they do not believe.
The holding in Lee and the value of some of its supporting doctrinal analyses have become quite evident in and settled by the more recent case involving school prayer, Santa Fe Independent School District v. Doe (2000). Santa Fe revolved around the permissibility of student-led prayer at public high school football games. After suit was filed against the practice of having the “student council chaplain” deliver a prayer before home football games, the school district enacted a policy that remitted to student elections the question of student-led prayer at commencement and sporting events (Santa Fe Independent School District v. Doe, 2000, pp. 2272–2273). First, the students voted on whether the event should be preceded by an “invocation and/or message … to solemnize the event, to promote good sportsmanship and student safety, and to establish the appropriate environment for the competition” (Santa Fe Independent School District v. Doe, 2000, p. 2273). If the students so voted, they would then vote again to select which student would deliver the message. The only resulting legal issue concerned whether the student speech should be viewed as private or whether it should be attributed to the state. There was little doubt that the sectarian religious messages that had been uttered immediately prior to the games for many years would, if spoken by agents or employees of the school, have violated the Establishment Clause. This is significant, given that all justices agreed that the Establishment Clause forbade school-sponsored prayer and that prayers by students in their private capacity were protected by the Free Speech and the Free Exercise Clauses.
Disagreement in Santa Fe arose only because the prayers were school-sponsored. Although students led the prayer prior to high school football games, the Court found that the prayer contravened the Establishment Clause because it constituted public speech (in this case, by being school sponsored), not private speech. The Court had little problem disposing of the private-public question by ruling against the school district. Relying on an elaborate history of the district’s official involvement in decisions to support prayer exercises at commencement and other school functions, the Court found numerous doctrinal impediments to the school’s policy. Building upon and expanding Lee, the Court held that the prayer policy involved state-supported coercion of public school children to acquiesce in prayer. The Court gave little credence to the district’s arguments that no students were coerced by such a policy. The Court noted that players, cheerleaders, band members, and students who wished to participate in important school events were required to attend and found that none of these students should be forced to choose between avoiding a religious exercise and attending an event of importance to the school and community. Invoking the now-entrenched theory of endorsement, the Court held that the district’s policy endorsed prayer at football games because the text of the policy explicitly mentioned “invocation” and “solemnization” as among the purposes of the pregame message and because the trappings of a high school football game would make any prayer over the public address system appear to an objective listener “as stamped with [the] school’s seal of approval” (Santa Fe Independent School District v. Doe, 2000, p. 2278). The reluctance to find for the district became even more obvious when the Court referenced Lemon, which many commentators and even some justices had thought long dismissed, to find that the school’s policy, understood in local, historical context, lacked a secular purpose and therefore constituted an unconstitutional establishment of religion. Relatedly, the doctrine of political entanglement, also played down in many decisions for more than two decades, reappeared in a new and exceedingly persuasive context. The Court’s opinion reasoned that the elections authorized by the district’s policy “entrust[ed] the inherently nongovernmental subject of religion to a majoritarian vote” (Santa Fe Independent School District v. Doe, 2000, p. 2283) and therefore violated the Constitution, regardless of the outcome of the vote. An election mechanism in which all understand that the choice focuses on the possibility of prayer “encourages divisiveness along religious lines” (Santa Fe Independent School District v. Doe, 2000, p. 2283); the Constitution bars the state from instigating such divisiveness. The student election, said the Court, effectively silenced the views of the minority, put the minority at the mercy of the majority, and did not protect diverse student speech. In fact, far from making the prayer permissible, the election served to intensify the offense of the minority. Viewed in this manner, the Court’s resolution of the disputes in Santa Fe seems quite reasonable; it simply confirmed that a group plebiscite cannot obliterate an individual’s liberty to decide whether and how to participate in a religious occasion. After Santa Fe, secular issues with religious overtones inevitably and appropriately remain to be resolved by the state’s political processes, but political processes may not resolve issues of religious observance in public institutions. Santa Fe, then, solidified the notion that schools must not encourage prayer and that students are free to exercise their religious beliefs so long as they do so under their own volition and do not offend other students’ rights.
Santa Fe portends change; the Court’s recent reluctance to address the issues involved indicates that it may pause to let the lower courts address similar issues first. Most notably, the Court has yet to rule on a slew of cases that permit moments of silence that seem strikingly analogous to the moment of silence statute the Court held unconstitutional in Wallace v. Jaffree (1985). In Brown v. Gilmore (2001), the Court refused to review a Virginia policy that, like many other state laws, allows a moment of silence for meditation, reflection, or prayer. The policy explicitly states that its main purpose is to guarantee students’ right to the free exercise of religion and to provide the least possible pressure on students to engage in or refrain from religious observation on school grounds. Yet, the Santa Fe Court found the Santa Fe district’s policy facially invalid because the policy unquestionably had the “purpose and … perception of encouraging the delivery of prayer” (Santa Fe Independent School District v. Doe, 2000, p. 317). Since the statutes indicate that one of their purposes is to guarantee the students’ right to the free exercise of religion, they ostensibly create the constitutionally impermissible perception that the schools encourage prayer. Given the Court’s reluctance in Santa Fe to give credence to the statutory purpose of the statute, Santa Fe renders questionable the rationale for Virgina’s statute: providing the least possible pressure on students to engage in or refrain from religious observation on school grounds. Despite the attempts to structure such policies so that they can survive constitutional scrutiny by offering only pure “moments of silence,” the constitutionality of such laws remains uncertain, and the Supreme Court has yet to address the claim.
The second situation involving adolescents’ religious rights in educational settings deals with whether and how a publicly funded open forum can allow students to participate in religious exercises. This issue first appeared in Widmar v. Vincent (1981), which asked the Court to determine whether state actors can prohibit private speakers from using university facilities for religious speech. In this leading case, the University of Missouri at Kansas City enacted a new regulation that prohibited an evangelical Christian group of students, which previously had been permitted to use the university’s classrooms, from holding meetings that included prayer, hymn singing, Bible study, and discussion of religious experiences. Although the university permitted a large variety of organizations to use school facilities for meetings, the new rule prohibited use “for purposes of religious worship or religious teaching” (Widmar v. Vincent, 1981, p. 265). The Court began by noting that the university’s provision of facilities to registered student organizations created an open forum; such a forum required the state university to justify its exclusion of religious clubs under the applicable constitutional norms. The norms at issue involved the Free Speech Clause, which the Supreme Court understands as prohibiting the singling out of religious views from other private expression for differential treatment; such treatment conflicts with the Free Speech Clause because it constitutes unconstitutional discrimination based on a particular point of view. By prohibiting religious clubs from using its facilities, the university imposed a content-based exclusion that could be sustained only by a showing that the exclusion was necessary to serve a compelling state interest and that it was narrowly drawn. The university asserted compliance with the Establishment Clause as its compelling interest. While agreeing that compliance with the Establishment Clause establishes a compelling interest, the Court did not find the “equal access” policy necessarily at odds with the Establishment Clause. In concluding that an open-forum policy that was nondiscriminatory toward religious speech would provide religion with only incidental benefits, the Court held that an open forum does not confer “any imprimatur of state approval on religious sects or practices” (Widmar v. Vincent, 1981, p. 274). The Court noted that, by providing access to a range of student groups, public institutions of higher education advance a secular purpose and do not excessively entangle the state with religion. By focusing its analysis on the expressive aspect of the students’ devotional activities, the Court found that the university’s ban on religious meetings violated students’ free speech rights. The Court also was persuaded by the fact that the open forum was available to religious as well as nonreligious speakers; the Establishment Clause does not prohibit the extension of general benefits to religious groups. Although the university could establish reasonable restrictions on the time, place, and manner of meetings (or simply deny access to all groups), the Court found that the university must provide access to a forum created for student expression on state-supported college campuses. The Court, then, required state-funded, public institutions of higher education to act neutrally toward religious groups that sought the same accommodations offered to secular groups.
This area of law gained immediate significance because it could readily be expanded to cover primary and secondary school settings. At its core, Widmar involved an important exception to prohibitions of religious expression and protected students’ rights to express their religious beliefs in an active group manner; it even potentially could be used to justify proselytizing. But, Widmar’s analysis did not address whether the Establishment Clause prohibited similar student-initiated devotional meetings held on public secondary school premises. Unlike university students, high school students could be viewed as a more captive and thus more vulnerable audience that might understand the meetings as representing the school’s policies. Congress directly challenged that concern when it adopted the Equal Access Act (EAA) (1984, 1994). The Act requires “equal access” policies in public secondary schools under certain circumstances and in compliance with specific guidelines. The EAA provided that:
It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings. (Equal Access Act, 1984, 1994, § 4071(a))
In addition to requiring equal access policies, the EAA delineated certain criteria for what constitutes fair opportunity. They include the following: that meetings be student initiated and voluntary; that the school, government, or its agents or employees not be meeting sponsors; and that agents or employees of the school or government attend religious meetings only in a “nonparticipatory capacity” (Equal Access Act, 1984, 1994, § 4071(c)(1)-(c)(3)). The EAA further prohibited the states and their political subdivisions from requiring student participation in religious activities and from influencing the content or form of any religious activities. By enacting these provisions, Congress sought to distinguish clearly between activities initiated and controlled by students and those initiated and controlled by the school or government, simply because the Constitution permits the former and prohibits the latter.
The EAA apparently extended Widmar in ways the Court had not addressed, and its constitutionality was challenged in an important case, Board of Education of Westside Community Schools v. Mergens (1990). That case started when Westside High School denied Bridget Mergens’s request that her Bible club be allowed to use school facilities; she promptly brought suit, claiming that the school’s decision violated the Equal Access Act, as well as the First Amendment. In its analysis, the Court recognized that, in passing the EAA, Congress had extended the holding in Widmar to public secondary schools. The Court proceeded to interpret the meaning of the phrase “noncurriculum-related student group” to determine whether Westside High School was required to provide equal access to religious clubs (Board of Education of Westside Community Schools v. Mergens, 1990, pp. 234, 237). While a majority of the Court agreed with regard to the statutory interpretation, the Court was divided on the rationale needed to uphold the EAA as constitutional. The plurality opinion examined Widmar and agreed with its conclusion that opening university facilities to religious groups sends a message of “neutrality rather than endorsement” (Board of Education of Westside Community Schools v. Mergens, 1990, p. 248). Following that logic, the plurality concluded that a school does not endorse student speech when that speech is allowed on a nondiscriminatory basis. The plurality did express concern that school actions might be perceived as representing the government’s support of religion in the “eyes of impressionable youngsters” (Board of Education of Westside Community Schools v. Mergens, 1990, p. 250). However, it also observed “a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect” (Board of Education of Westside Community Schools v. Mergens, 1990, p. 250). The Court noted that the statute provided important safeguards; it prohibited active participation by school officials and limited meetings to “noninstructional time,” all of which resulted, according to the Court, in little, if any, risk of state endorsement or coercion (Board of Education of Westside Community Schools v. Mergens, 1990, p. 251). By noting that the Act prohibits sponsors from participating in meetings, the Court dismissed concerns about faculty sponsors and other accouterments of secondary school life. The Court further reasoned that, “[t]o the extent a school makes clear that its recognition of respondents’ proposed club is not an endorsement of the views of the club’s participants, … students will reasonably understand that the school’s official recognition of the club evinces neutrality toward, rather than endorsement of, religious speech” (Board of Education of Westside Community Schools v. Mergens, 1990, p. 251). Whether schools actually make their positions clear in practice even though they can do so in theory was not the Court’s central concern. From the Court’s view, secondary school students are mature enough to recognize that the school is not endorsing student speech that it merely permits. Given this line of reasoning, the Court rejected an Establishment Clause challenge to the EAA and affirmed secondary school students’ rights to meet and to share religious beliefs on school grounds. The Court declared that, “even if a public secondary school allows only one ‘noncurriculum-related student group’ to meet, the Act’s obligations are triggered and the school may not deny other clubs, on the basis of the content of their speech, equal access to meet on school premises during noninstructional time” (Board of Education of Westside Community Schools v. Mergens, 1990, p. 236).
The recent cases addressing the use of public schools by student-initiated groups reflect the judicial sentiment that religious speech and other private expression deserve equal treatment in public schools. This is distinct from, but often confused with, public school access by student-initiated groups during noninstructional time, which is governed by the EAA. When public schools are made available for community use, the school functions as a proprietor and does not supervise the activities as it does with student groups. In 1993, the Supreme Court held, in Lamb’s Chapel v. Center Moriches Union Free School District (1993), that if officials allow groups to use the public school to present particular topics (i.e., family values, child rearing) from a secular perspective, they cannot bar meetings on these topics that include religious perspectives. In essence, school districts run afoul of the Free Speech Clause if they enforce policies on the use of their facilities that discriminate against a religious group’s message. In Lamb’s Chapel, the Court examined the school district’s rules, which permitted use of school property by nonstudents for social, civic, or recreational uses but not for religious purposes. On the basis of those rules, the school district had denied the request of Lamb’s Chapel to use school facilities to show a film series that offered a religious perspective on family life and child rearing. The Court found that control over the use of public property that is not a public forum can be based on subject matter but that the control must be reasonable in light of the forum’s purpose and must be viewpoint neutral. A speaker cannot be excluded from a nonpublic forum because of the view that the speaker would espouse if the speaker’s subject is one that would otherwise be includable in the forum. While such an exclusion is normally unconstitutional, the discrimination can be saved by an Establishment Clause defense. The school district’s denial could be tolerated, that is, if permitting the use of the facilities by the group in question would be an establishment of religion. Here, however, the Court rejected fears of an Establishment Clause violation. The Court assumed that there was no real danger that the community believed that the school district was endorsing a general or a particular religion.
The reasoning in Lamb’s Chapel has been extended to student groups, even those that want to use school premises not only for discussion of religious subjects but also for worship services in which adolescents (and children as young as six) are called upon to commit themselves to Christianity and to proselytize other students. In a recent case exploring those issues, Good News Club v. Milford Central School (2001), a student religious organization led by adults from a local church had been denied access to a public elementary school for an afterschool meeting place because the school’s policy excluded groups engaged in religious instruction. Relying on Lamb’s Chapel, the Court reasoned that the exclusion amounted to viewpoint discrimination and violated the group’s free speech rights. The Court held that, since school officials had opened the door for outside groups to meet after school, school officials could not deny use of those facilities to groups expressing a “religious viewpoint.” Unlike previous decisions that focused on fears that students might feel coerced to attend, the Court reasoned that parents must give permission to their children to participate in afterschool activities, which protects students from unwarranted pressures and helps clarify that schools do not endorse the meetings. Thus, the Court consistently has held that the Establishment Clause allows religious speakers to use public school facilities when there is no appearance of government endorsement of religion. So long as the government actor affords religious speakers who are not government actors the same opportunity to use government facilities as is given to secular speakers, there is no danger that a perception of government endorsement will exist. Absent such a perception, the actions do not violate the Establishment Clause.
Generally, then, adolescents possess no religious freedom rights inside their homes unless their parents choose to grant them such privileges. When outside the direct control of their parents, however, the rights of adolescents are beginning to mirror those of adults. Indeed, recent developments in adolescents’ rights reflect the fall of the “wall of separation” metaphor, and litigation involving adolescents seems to be setting numerous leading legal precedents. The extreme focus on maintaining a firm wall of separation between “church and state” appears to have been replaced by the concept of nondiscrimination or equal treatment of religious and other personal speech. Without doubt, there remains much uncertainty, but the Court has announced some general rules. A state does not establish religion merely by granting access to facilities to students who are promoting religious beliefs as long as it grants a similar access to those who promote secular ideas. In fact, schools are required to treat students’ religious and nonreligious speech equally once they have opened the forum to any student speech. However, a state cannot convey a preference for religious speech in the guise of allowing students to exercise their rights to free speech. The Court now concludes that private (personal) religious and nonreligious expression should be treated similarly under the Free Speech Clause, an approach that gives great weight to the religion clauses’ First Amendment companion.
We now have seen multiple features of the laws that regulate adolescents’ experiences. Conceptions of adolescents’ own rights relating to their religious experiences and environments remain pervasively unexplored to the extent that adolescents’ rights generally do not factor greatly into decisions that seek to balance the rights of others. Although there may not be one, overarching jurisprudential or policy direction, five points seem especially worth emphasizing.
First, as with other areas of regulation involving adolescents, parents retain the plenary right to direct their children’s upbringing. The significance is so great that, when community rights play into the balancing, their role tends to be quite stealthy and is framed in the language of parental rights and the extent to which broader communities can override those rights. As a result, the legal system frames the rights of adolescents as it addresses the rights of parents (or the state acting as parens patriae). For instance, Meyer directly protects the right of parents to control their child’s upbringing; it does not protect a child’s right to receive an education in a foreign language. Similarly, Pierce recognizes parents’ right to direct their child’s education by choosing parochial schools rather than private schools; it does not recognize the child’s right to a private education. In Kiryas Joel, the Court denied the rights of parents to create a special school district to protect their religious beliefs and framed the opinion in terms of parents’ (and, through them, the community’s) concerns for their children and the right of civil society not to actively support religious sects, rather than in terms of children’s rights to education. Prince authorizes the state, as parens patriae, to enact child labor statutes and to infringe on parental rights; it does not extend specific constitutional rights to children. Thus, it appears that when a conflict arises between adolescents’ rights and those of their parents, adolescents’ rights gain protection when there is a threat of physical harm, and that protection comes in the form of governmental action as parens patriae, not in the form of the right to act independently of one’s parents.
Second, when addressing religious concerns, the legal system has tended to individualize communal experiences. Playing down the communal aspects of religiousness results in peculiar outcomes. First, it essentially rejects consideration of the free exercise interests of members of religions to which the idea of a worshiping community is central. This was the essential result in Kiryas Joel. In that case, the Court found it inappropriate to prevent a religious sect’s children from associating with their neighbors and appropriate to allow contact with those who are different, even though it may result in “panic, fear and trauma” and even though two-thirds of the full-time students at the school in question were Hasidic children from outside the village (Board of Education of Kiryas Joel Village School District v. Grumet, 1994, pp. 694, 701–702). Second, the approach fails to consider the interests of individuals who see themselves as claimed by religious commitments they have not chosen. These individuals do not experience religious commitment as a result of a free marketplace of ideas, a metaphor that dominates jurisprudential efforts to treat religious beliefs and institutions in a neutral manner and to view religious beliefs as something that can be ignored. Prime examples of these considerations arise when religious convictions are ignored and assumed to be amendable to change, as evidenced in the aunt’s convictions in Prince and the law’s failure to accommodate. Third, and especially in terms of adolescents, it allows for a focus on the rights of parents. By focusing on parents, the legal system overlooks the impact of legal rules on the parents’ adolescent children or on groups of adolescents. The Good News Club case illustrates well what may result from such a narrow focus. The environment produced by religious groups may leave some students feeling excluded from religious exercises and feeling coerced to participate, but those risks tend to be underestimated by the courts because they individualize the community aspects of religion, assuming that parents (not the adolescents themselves) can resist coercion by other adolescents.
Third, the current approach seemingly plays down the omnipresent power of the state. The legal system’s approach to issues of coercion is illustrative. The Establishment Clause unequivocally forbids the state from coercing or compelling persons by direct legal sanction to conform to religious sentiments sanctioned by the state. But government has many different ways to enforce its preferences short of direct coercion. Government is ever-present in almost every aspect of our cultural and personal lives, and its influence may be felt in subtle ways. Government may indirectly coerce conformity to its religious messages by making nonconformity more difficult or costly, regardless of whether it carries any threat of legal penalty. Expanding the concept of coercion beyond direct or legal means provides a reasonable and necessary check on the power of the modern regulatory state. The Court’s current approach to coercion, however, is limited as it determines what constitutes an indirect coercive threat. For example, in Lee v. Weisman (1992), the Court responded to a classic example of indirect coercion. In that case, the student could have avoided participating in prayers offered at her graduation ceremony by choosing not to attend; by avoiding graduation, she would not have been offended, nor would she have been forced to participate in religious exercises or say what her conscience would not allow. The approach embraced by the majority in Lee suggests that social pressure to engage in religious activity may give rise to an Establishment Clause violation if the government has created and retains sufficient control over the setting in which that pressure occurs. When the state creates the occasion, controls the program, and is the sole or principal religious speaker, it is easier to attribute to the state’s coercive process any pressures to conform to that message that occur. The government violates the coercion principle when it forces individuals to choose between participating in or protesting a religious exercise and forfeiting some right, benefit, or privilege. This approach remains potentially limiting. So long as graduation prayers confront dissenters with the choice of participating unwillingly in a religious activity, openly dissenting, or electing to miss their graduation exercise, it makes little difference whether student volunteers or school officials deliver the prayers; participation in such prayers can hardly be considered voluntary. Rather than reducing the effects of peer pressure, the school’s policy actually sanctions it, allowing students to use the machinery of the state to impose their approved religious exercise on nonadherents. The approach parallels the manner in which the Court approached Establishment Clause challenges to afterschool religious club meetings, as affirmed in Good News Club. It would be disingenuous to ignore the pervasively coercive environment of public secondary schools. It also is disingenuous to think that, in environments as controlled and authoritarian as public high schools, officially sanctioned student activities involve teachers in only a neutral, nonparticipatory, custodial fashion. How the legal system approaches the regulation of adolescents’ environments, then, plays down the state’s omnipresent role in adolescents’ lives.
Fourth, the legal system does not necessarily address the rights of adolescents when adolescents are outside the control of their parents. This is most explicit in analyses of service providers’ rights. Restrictions on the speech of publicly funded physicians, for example, pose a threat to patients’ interests. Compelling physician speech, like silencing it, implicates both doctors’ right to speak and patients’ right to receive information. The Court characterized and decided Rust and Casey as though they involved a bipartite conflict between physicians’ right to speak and states’ right to regulate professionals, rather than a tripartite conflict among physicians’ speech rights, government’s power to regulate professionals, and patients’ right to receive information. The Court’s neglect of these audience-based concerns led it to formulate standards for judging the constitutionality of content restrictions on doctor-patient speech that do not necessarily protect patients. For example, restrictions on publicly funded physicians are unconstitutional only if patients have an “all-encompassing” relationship with their doctor that gives rise to a reasonable expectation of receiving comprehensive medical advice. As a result, publicly funded specialists can be forbidden to speak to patients about specific medical procedures. Further, under Bowen v. Kendrick (1988), teachers and counselors may be prohibited from providing full information and from engaging in open dialogue with students, despite their professional responsibility to do so. Government may not impose viewpoint-based restrictions that do not afford publicly financed physicians the opportunity to distance themselves from the state’s message. Although physicians may distance themselves by offering disclaimers, they are not likely to do so if they agree with the government’s position about a particular treatment. If a doctor’s silence is compelled, that doctor’s patients will be deprived of governmentally disfavored information without notice that they are receiving only partial information and advice. In the case of compelled speech, these patients will hear a biased message intended to steer them toward the government’s preferred course of treatment, with no knowledge that the message stems from state opinion rather than from their physician’s best medical judgment.
Last, the law fails to consider adolescents’ peculiar circumstances. Adolescents’ potential susceptibility to coercion is a clear example of this, as we have seen, but equally illustrative is the manner in which the legal system views adolescents’ impressionability and their ability to perceive (or to misperceive) government endorsement of religion or of religiously influenced practices. The circumstances the Supreme Court let stand in Bowen v. Kendrick (1988) are illustrative. In Bowen, the Court did not find an unacceptable risk that the no-establishment principle was violated, even though the ultimate beneficiaries of services were adolescents in circumstances that could challenge their ability to decipher the biases behind the offered services. The Court therefore let stand the use of government funds to pay religious organizations to teach and counsel adolescents on a highly sensitive subject of considerable religious significance, even on church or parochial school premises and without any requirement that religious symbols be removed from the sites. The impact of adolescents’ impressionablity under these circumstances appears worth considering, especially because the risk of imposing a government orthodoxy is particularly great. Pregnant teenagers seeking information from AFLA programs, for example, may be in crisis, both economically and psychologically, and, given the general paucity of adolescent health services, may be both unable to go elsewhere for unbiased and complete counseling and unaware that the counseling they are receiving is one-sided. When AFLA programs take place in public schools, the arguments against government orthodoxy seem even stronger because of the compulsory character of school attendance and because of the role of public educators in preparing students for full citizenship participation in a democratic society. Against a background of deference to the school board’s authority to define the curriculum, the Supreme Court has recognized the free speech rights of students in the public school setting to speak, to “opt out” of speaking, and to receive uncensored ideas (Levesque, 2002). When the education and health programs take place in sectarian, non-school settings, their impact may even be greater; locating AFLA programs away from public schools removes the traditional political checks that might ordinarily be provided by the reactions of school boards, teachers, taxpayers, and state education departments. AFLA grantees are not likely to protest against the program restrictions, because they have already been preselected (they by definition accept the anti-abortion orientation required of grant applicants) and already censor their speech because of their own preexisting missions; the subject matter of AFLA closely aligns with the fundamental tenets of some religious faiths. Under such circumstances, the government’s speech will not be neutralized by political or institutional forces but instead will align with sectarian and ideological interests. Indeed, the reasoning behind Charitable Choice is that faith-based organizations have a better track record than the government in solving adolescents’ problems precisely because of their religious orientations (see Hamilton, 2001). Given that reality and the very aim of AFLA, the law formally assumes that adolescents are not impressionable, an assumption that renders the law permissible, while hoping that they are not (and that they will accede to the law’s effort to have them act as the government, and some dominant religious beliefs, would have them act).
Given the wide diversity in approaches to adolescents’ place in law and society, it is not surprising to find that legal responses to adolescents’ religiosity and religious environments are a mixed bag. No simple calculus determines the nature of religious rights as they affect adolescents and how those rights may be balanced with the rights of others. When the legal system does address adolescents’ own rights, the analyses remain limited, and the extent to which the rights are tailored to adolescents remains debatable. Although the current laws seem comprehensive in their regulation of adolescents’ religious development and environments, a close look reveals that they have important limitations. Even when the needs of adolescents are thought to be addressed, other values are at stake.
The lack of simple rules makes inevitable the need to take a close look at adolescents’ place in society and law. To a large extent, adolescents continue to be the objects of regulations rather than their subjects. For example, the parental presumption focuses only on extremes: only real or potential harm to the child or the burden that a parent’s actions threaten to place on society leads the legal system to recognize that adolescents have rights or potential interests different from those of their parents. Likewise, communities can exert important control over adolescents’ religious identities; they have so much power that the leading cases that deal with communal claims do not even bother to address adolescents’ rights. We have seen that some cases that deal with service provision do address adolescents’ rights, but those discussions remain far from complete. To complicate matters, when adolescents’ rights are addressed, even the most liberal policies remain quite limited. The legal system has yet to confront its extensive regulation of religious concerns, its lack of appropriate responses to private actions, and its pervasive failure to even consider adolescents’ peculiar needs.