Religion and matters of faith played powerful roles in every-one’s lives, including the lives of nonbelievers, long before modern social sciences turned their attention to religious institutions and their impact. Indeed, the social sciences often have ignored the manner in which religious institutions and beliefs affect society’s response to individual and social needs. Although considerable attention is now being paid to the subject, the resulting research remains narrow. None has focused on how religions’ roles and new policy developments relating to religion affect adolescents’ development and their place in civil society.
The previous chapters suggest that four factors account for the pervasive failure to examine more systematically the impact of religion on adolescents and to explore more deliberately how social policies regulate adolescents’ religious environments. The first is the misperception that the legal system formally excludes consideration of religion, that there exists a firm “separation of church and state.” As we have seen, the common use of the phrase does not match its relevance to the task of legal interpretation or to the law’s impact on religion. Absolute separation between the state and religious institutions and beliefs is neither a goal nor a possibility. There is a long history of attempts to remove religion from public policy, even though, as we have seen, religious values play powerful but highly stealthy roles in policy-making. Despite this, religion continues to be viewed as a private matter of personal belief, with little practical relevance to policy, largely because considering religious issues in public policy-making would suggest the imposition by the government of religious beliefs. This belief assumes the possibility of a clean and clear distinction between the religious and the secular and constitutes the second reason religion is ignored by policymakers: the distinction between public and private may be recognized by nonreligious individuals but is likely to arouse objections among religious individuals, who are likely to find faith relevant to all aspects of their lives. The assumption that people can and should separate their religious beliefs from their social and cultural identities ignores the inseparability of religious (and antireligious) beliefs from people’s worldviews. The third factor is the popular perception and social tradition that affirms parents’ right to control, guide, and even determine both adolescents’ religious orientations and their religious environments. Although parents can and often do play powerful roles in adolescents’ lives, perceptions of that power frequently overestimate parental influences. Indeed, our close look at religious environments, the impact of religious beliefs, and the development of religious orientations suggests many reasons to question the extent to which parents directly control adolescents’ religious experiences and developments. This third factor leads to the fourth—the wide power the law bestows upon parents to raise their children as they see fit and the prevailing tendency to treat adolescent minors as children under the law. As we have seen, parents do retain wide latitude, but the legal system, to a degree that varies with the context, allows adolescents to exercise their own religious rights and protects those rights from state-sponsored encroachment. Even where parents retain great control, the law allows the state to intervene to protect the rights of adolescents or to address potential conflicts that may arise when the rights of parents interfere with the broad interests of civil society, local communities, or others who interact with adolescents. Equally important, the law impacts religions, which, in turn, impact parents and adolescents—and the influence on adolescents does not necessarily flow directly through parents, as seen by the regulation of religious communities and adolescents’ peers. To conclude, then, that religion is of little significance to policies that affect adolescents requires us to ignore the fundamental social, developmental, and legal realities that impact adolescents’ religious development, their religious environments, and the demands of living in a civil, religiously pluralistic society.
To suggest that there are significant misperceptions about adolescents’ place in religion, law, and policy, and to challenge accepted beliefs about parents’ control of their children’s religious development, is undoubtedly controversial. Yet, that these misperceptions exist undergirds the importance of evaluating the role of religion in adolescent development and policies that affect adolescents. Several features of the historical moment, coupled with these misperceptions, render urgent a close look at intersections among religion, adolescent development, families, communities, and the law.
Adolescents today face changed and often troubled realities in their families, communities, and peer relationships. Adolescents live in distressed families and communities that limit opportunities. An increasing number of families struggle to nurture and care for their children and even to provide basic physical necessities (Montemayor, Adams, & Gullotta, 2000). Likewise, adolescents painfully experience a loss of effective community ties and supports. Many locales no longer offer the important sense of place and connection to others that long has characterized neighborhoods and local institutions such as schools (see Weissbourd, 2000). In addition, large numbers of adolescents grow up without opportunities to ponder transcendent meanings, and religious communities often fail to address adolescents’ needs (Roof, 1994). Evidence of the resulting failure to support adolescent development abounds, particularly in rates of victimization, school failure, and unmet mental health needs among adolescents (see Levesque, 2002). Importantly, even if adolescents are able to grow up in stable families and in communities that have strongly established social and religious groups, these groups, even with the best of intentions, may in fact harm adolescent development or foster biases against individuals or members of other groups and, by doing so, place a burden on broader society. Adolescents, families, and communities cannot ignore adolescents from their own and other communities; adolescents face many communal challenges even as communal institutions themselves face challenges.
In addition to changes in social relationships, shifts in governments’ role in providing for basic human needs makes necessary a reconsideration of religion’s role in adolescence. Even as communities and private community groups confront major social challenges, they are increasingly assuming responsibility for providing necessary social services. Although religious institutions always have played a dominant role in the provision of social services, the pace of this shift is indicative of a lessening sense of public responsibility and accountability in this area (see, e.g., Bane, Coffin, & Theimann, 2000). In addition to proving potentially problematic for adolescents, this change may prove problematic for the very fabric of society. The push for using public dollars to pay for private and religious schools, for example, challenges the shared context that connects private and public lives. Current reforms encourage use of public funds to educate adolescents outside the common, public system. This focus dismantles the very idea of a common school committed to the inculcation of a shared American tradition and capable of integrating students from a variety of backgrounds (Levesque, 2002). The policy shift runs deep. The recent injection of private religious options into the delivery of welfare services becomes particularly worrisome in view of the rampant discrimination revealed by numerous evaluations of child welfare services (Levesque, 2000b). Discrimination in the provision of social services is difficult to eradicate, and the risk of discrimination may increase as we increasingly rely on private religious groups to provide services (see Minow, 1999).
There have been revolutionary developments in the laws and policies that regulate religion, family life, and adolescents. We have seen how the legal system increasingly entangles religion with matters of state. For example, the legal system has become increasingly receptive to claims that allocations of public funds for social services must not discriminate against religious groups that also offer those services. Likewise, we have seen how the legal system now appears ready to intervene in family life and to protect adolescents from religious behaviors. Recent changes in medical neglect laws have reversed past efforts to protect the religious rights of parents. Although parents and religious communities still retain the right to raise children according to their religious dictates, the states appear increasingly willing to intervene and protect children (see, e.g., Palmer & Hardman, 1999). Last, we have seen that the legal system increasingly recognizes that adolescents are persons worthy of constitutional protection in their own right. For example, the legal system now bestows on adolescents procedural rights when they become involved in the juvenile justice system, a recognition fueled by the due process revolution of the 1960s (see Levesque, 1997). The imprints of these legal developments are most prominent in the public sphere. The legal system protects adolescents’ expression of religious views and prevents state officials from supporting environments that would coerce adolescents into supporting or professing certain religious beliefs (Santa Fe Independent School District v. Doe, 2000). All of these developments in the regulation of adolescents’ private and public lives reflect a recognition of the need to protect adolescents from harm and to prepare them for responsible citizenship. These developments, however, remain far from systematic, coherent, and as liberative and as pernicious as alleged by those who champion a more aggressive turn to parental rights (see Hafen & Hafen, 1996). Many incongruities mark the legal systems’ responses to adolescents, and developments in law and policy do not necessarily respond well to the current understanding of adolescent development, adolescents’ place in society, and the social world they inhabit.
The extent to which the legal system fails to respond to adolescents’ peculiar needs, and thus those of society, is yet another reason to reconsider the legal regulation of religion as it affects adolescents. The legal system has had considerable trouble responding to the current understanding of adolescent development. Much of the failure is understandable in light of the nature of the law; law cannot respond to or address one issue without considering that issue’s impact on others. Given the extent to which adolescents must rely on others to meet their needs, it is necessary to consider other peoples’ rights and responsibilities as one considers the jurisprudence that affects teens. However, the legal system cannot achieve greater efficiency and ensure justice if it responds to misperceptions about adolescents, rather than to reality. The traditional view of adolescents is that they are passive recipients of social beliefs and traditions, including religious ones. Although that view appropriately highlights the relative power of social forces and their dominance over adolescents, it fails to note adolescents’ active participation in their own development. As we already have seen and will see more clearly, research on how adolescents idiosyncratically evoke, interpret, and respond to their social environments continues to revolutionize the study of their development (see Levesque, 2000a, 2002). This new understanding of the adolescent period reinforces the need to examine the legal regulation of adolescents’ religious development.
Given the context-dependent peculiarities of the legal regulation of adolescents, the legal system should welcome an improved empirical understanding of adolescence to ensure that its provisions closely correspond to adolescents’ realities. Yet, political or moral expedience often substitutes for policy based on evidence from the social sciences. As we have seen, many appropriately lament the legal system’s failure to consider the realities of adolescents’ experiences and attribute the failure to the lack of an overarching doctrine, a lack that results in inconsistency, confusion, incoherence, and an apparent inability to recognize adolescents’ peculiar needs. To a large extent, the diversity of views of and responses to adolescents’ place in society reflects the complexity of adolescence, making essential attention to specific contexts. The lack of an over-arching doctrine and the need to accept context-dependent approaches, however, need not necessarily translate into inadequate, ill-thought-out, problematic, or even harmful approaches to the regulation of adolescents and their social contexts. Given the existence of important social science findings related to adolescents, we find peculiar the legal system’s continued hesitancy about considering and benefiting from them.
The misperceptions, diversities, failures, and complexities we have discussed do much more than suggest a need for the current evaluation. They complicate our effort, though they do not render it impossible or futile. The previous chapters suggest that a sharper focus on adolescents’ basic rights and a firmer social science understanding of adolescence could help us achieve the desired outcomes of secure, healthy, and responsible adolescents. This focus, importantly, responds to the complexities of adolescent life. Thus, it does not unnecessarily limit the firmly established rights of parents and communities to influence their children’s religious environments and development. Instead, it clarifies and supports those rights and rejects the popular view that envisions and assumes the inevitability of a clash between adolescents’ rights and those of their communities—for, whether or not adolescents, parents, or the broader society recognize it, adolescents are community members. This point deserves emphasis, since those who adhere to a firm parental rights model may lose sight of the fact that others too have rights that must be considered.
Although the following analysis considers extending innovations in adolescents’ rights, these expansions are far from radical and are not beyond the realm of possibility. Likewise, although the analysis suggests taking an alternative direction to achieve a traditional end, the proposals are consistent with numerous legal mandates. These suggestions are supported by existing legal structures that are largely undeveloped or simply ignored. The proposal, then, in some ways is quite simple: we can better develop legal and policy mandates, respect adolescents’ basic rights, reflect the realities of adolescent life, and foster healthy individual and social development while addressing adolescents’ religious needs and their religious environments. To achieve those ends, we propose the following as one possible course of action.
The legal system undoubtedly can benefit from insights generated by research in the social sciences. The diversity of approaches to addressing different contexts, and the obvious attachment of religious beliefs and religious environments to deep moral and political issues, suggests that empirical accounts may not contribute greatly to the legal regulation of religion that affects adolescents’ experiences. Yet, regardless of the political and religious stances taken by policymakers and those who interpret and implement existing laws, they must address adolescents’ peculiar place in society and balance adolescents’ rights against those of their parents, communities, and civil society. The hope that adolescents, parents, and society can benefit from findings in the developmental sciences as they relate to adolescents and religion lies in policymakers’ ability to integrate these findings into the values that guide jurisprudence and public policy. Regulating adolescents’ behavior and environments in ways consistent with social science suggestions necessarily requires a close examination of the rights of adolescents in different contexts and across different relationships.
The discussions in the preceding chapters suggest some basic principles that can guide policies and reforms that seek to balance more effectively the rights of adolescents, parents, communities, and the broader society. The principles champion respect for adolescents and ensure young peoples’ membership in a society that takes their interests seriously and that fosters the growth of citizens who also take their own and societal interests seriously. The following discussion examines these principles, clarifies where they diverge from current law and policy, evaluates available social science suggestions regarding the appropriateness of the principles, and responds to potential challenges to a serious consideration of their content.
Two caveats arise as we move from a more descriptive to a more proscriptive analysis. First, the highlighted principles are meant to serve as guiding tools. None has particular talismanic qualities; all the principles deserve close consideration, and their content obviously must be weighted differently according to contextual requirements and to the peculiar exigencies that arise from the need to respect other people’s interests and those of civil society. Second, the principles all interrelate and even overlap. The models certainly could be much more conceptually tidy, their essence shaped to maximize their independence, but such contorted models and efforts would not necessarily offer much in terms of practical utility. The conflictual interactions among the worlds of law, religion, and adolescence present complex and, when in need of rebalancing, highly context-dependent outcomes. Bearing in mind these realities, we now revisit our previous discussions to detail possible directions in the law’s approach to adolescents’ religiosity and religious environments.
Traditional jurisprudence in adolescents’ rights generally bestows the control of adolescents’ rights upon parents. For example, parents generally control the context of family life. Where parents do not have control, the state intervenes to act as parents otherwise would to control adolescents’ rights. It may therefore be difficult to imagine that this system, which also bestows upon adolescents control over their own rights, substantially differs from traditional orientations. Yet, modern jurisprudence has accorded adolescents increasing control over their own rights by allowing them to share in the experience of autonomy rights enjoyed by adults. Despite the greater attention to adolescents’ rights in recent decades, this trend has not eliminated all paternalism from the legal treatment of adolescents. Importantly, even when innovative developments in adolescents’ rights do seek to recognize adolescents as subjects of their own rights, those developments firmly attach to traditional jurisprudence and continue to recognize the fundamental reasons for giving parental rights much of their valence and the government so much power—to protect adolescents and to produce socially responsible citizens (see Levesque, 1997). In terms of law, then, taking adolescents’ competencies seriously might mean beginning to bestow the control of adolescents’ rights directly upon adolescents themselves, rather than continuing to confer them upon parents or the state.
The law’s attitude toward the question of whether some adolescents’ decisions should be treated no differently from adults’ decisions largely has been based on assumptions regarding minors’ decision-making competence. As we have seen in chapter 5, laws that deal with adolescents’ competencies and their place in the law often markedly vary, depending on the context. The law sometimes must explicitly or implicitly judge the competence of minors to make significant decisions about the course of their lives. To the extent that minors exhibit competence as great as that displayed by adults, it seems to follow that their decisions should be respected, at least no less than those of similarly situated adults. Respecting adolescents’ decisions, as with adult decisions, can mean depriving the adolescent of the beneficial consequences of those decisions on the grounds that those consequences are outweighed by negative consequences either to the decision maker or to others. Respecting an adolescent’s decision also might mean allowing the teen to experience negative consequences. Given the risks involved, the determination of what constitutes appropriate competency undoubtedly is quite tricky. The social sciences have much to offer as we strive to formulate general rules in this area.
An increasingly large body of work has empirically examined the quality of adolescent decision making and its similarity to or difference from that of adults (see, e.g., Woolard, Reppucci, & Redding, 1996). Although early work in this area received considerable criticism for being politically biased, vague, and based on imperfect assumptions, the work nevertheless yielded significant conclusions and trends. The vast majority of studies on the cognitive elements of decision making have supported the conclusion that the decision-making competence of older adolescents does not differ greatly from that of adults (Scott, Reppucci, & Woolard, 1995). That research has now been complemented by studies that index a wide range of factors that might lead adolescents to outcomes significantly different from those that adults would experience when making significant life choices. Existing literature on these noncognitive factors tends to support the notion that the differences between older adolescents and younger adolescents are more prominent than are differences between older adolescents and adults (Steinberg & Cauffman, 1996; Scott, Reppucci, & Woolard, 1995). Most notably, studies that focus on the ability to make decisions independently, that is, free of parental or peer group influence, show that, while peer group pressure clearly increases during early adolescence, both peer pressure and parental influence diminish during the high school years. For other factors, such as impulsivity and sense of personal responsibility, there are also greater differences between early and late adolescence than between late adolescence and adulthood. Thus, even when a particular context demands more than cognitive skills to make sound decisions, adolescents may not be particularly deficient in those skills, or so incompetent as to influence the way others treat them.
Decisions about religious matters are no exception to this rule. In terms of adolescents’ religious environments, religious development, and religious consciences, existing research reveals many complexities and— although much still remains to be determined—important conclusions. Parents greatly influence adolescents’ religious development and religious beliefs. This influence is particularly powerful with regard to early experiences that establish the working models individuals use to approach their social worlds. As we also have seen, however, by adolescence, children’s religious beliefs are impacted by factors besides parental influence. Available religious institutions, community beliefs, peer groups, and social environments such as schools and social service providers also impact adolescents’ religious development, attitudes, and behaviors. In addition, religious development is an active process, a process of exploration within the available social environments. Indeed, the most recent research reveals that the most healthy forms of religious identity emerge through adolescents’ active exploration of alternatives and subsequent decisions regarding their own religious orientations. Likewise, it becomes increasingly clear that to understand the social influences on adolescents, one must recognize the many recursive influences on those who interact with them, such as the impact of the community and peers on parents.
These findings suggest that matters of faith may not involve issues of competence as traditionally described by available research. Matters of faith seemingly depend on others for their development, and decisions regarding matters of faith clearly depend on others to the extent that religion involves communal experiences. Likewise, decisions on matters in which faith plays a part (such as medical decision making) also are complex, with religious issues weighing differently in decisions depending on the adolescents’ faith and the nature of the religious influences around them. Adolescents, then, actively make decisions about the significance of religion in their lives; religious beliefs impact their other decisions; and others are involved in the development and exercise of their faith. To a large extent, we may conclude that adolescents seem competent enough to have faith in a religious sense and to hold religious beliefs and attitudes worth respecting. That conclusion is significant: adolescents can be deemed to hold religious convictions.
It remains to be determined whether the law can benefit from these findings. The research suggests the need to at least consider ways that the legal system can better address adolescents’ religious needs as it grants adolescents greater control over their own rights and as adolescents respond to religious environments and contexts that may be influenced by others’ and their own religious beliefs. A close look at the current laws that regulate adolescents’ religious environments and religious development reveals that providing greater respect for adolescents’ abilities to make decisions regarding matters of faith is both feasible and far from radical. In fact, it is much less extremist and less radical than the traditional trends that have viewed adolescents as possessions over which parents and others must exert power and control. Two examples demonstrate that the approach remains consistent with less extreme traditional laws and that it respects traditional concerns.
Providing adolescents with greater autonomy to exercise their religious rights requires accepting the state’s control of adolescents, a reality that is not surprising given that the state also ultimately controls adults. That limitation, however, still leaves immense leeway. Our approach proposes that greater scrutiny be given to efforts that deny adolescents the rights others enjoy. That is, it simply demands that adolescents be treated with the respect given other groups and that they not suffer from invidious discrimination. For example, innovative policies already ensure that adolescents have exit options, for example, in the form of judicial relief or social service delivery when their rights would otherwise be violated by parents or others acting in ways that control adolescents. We have seen that the highly charged example of parents’ rights to control their children’s reproductive freedoms provides the starkest example of the many ways the law skirts parental rights to provide adolescents with ways to exercise their own rights when they conflict with those of their parents (see also Levesque, 2000a). We have seen other examples, in the context of community service requirements in public schools, that have been challenged on students’ own free exercise claims, with the result that schools must provide alternative programs. Schools even have included religious harassment in their new policies to combat school violence. All of this has been spurred by recent Supreme Court decisions that recognize the need for schools to address civil rights violations against adolescents (see Levesque, 2002). Likewise, we have seen that courts have required alternative services when delinquent adolescents would otherwise be required to participate in treatment programs that require the expression of religious beliefs. All of these developments directly protect adolescents’ religious rights and shield them from environments that infringe on those rights. Importantly, adolescents have the competence to hold religious convictions, and such convictions are worthy of respect.
Although these laws may remain controversial, they respect traditional concerns to the extent that they take seriously society’s interest in assisting victimized and vulnerable adolescents. This societal interest challenges efforts to justify denying adolescents access to resources and benefits simply because they are not seen as adults. The extent to which adolescents can receive greater protection from victimization because of their own religious orientations reveals how the legal system can respond in a manner that takes adolescents’ needs more seriously. Traditionally, when harm occurred in relationships with families and service providers, adolescents did not receive assistance because they were not recognized as legal actors and essentially were not recognized as having been harmed. Our approach’s plausibility and feasibility finds clear expression in the manner in which some states provide adolescents with direct access to courts and services and the manner in which schools now must enact policy responses to religiously motivated harassment and conditions that fail to respect adolescents’ religious rights.
Although the legal system increasingly recognizes the peculiar legal needs of adolescents and their potential competencies, the recognition that adolescents possess significant competencies has not eliminated continued challenges to the idea of conferring on them greater access to legal mechanisms meant to protect them from harm and to foster their healthy social development. The challenges may seem particularly great, but they reveal the complexities that jurisprudence and litigation must address even when the rights of adults are at issue. Even these recent developments accept the realities of adolescents’ special incapacities and their roles in families and communities. This means that adolescents’ increased control over their own rights as they gain rights does not translate into society’s abandoning them to their own rights. Like adults, adolescents remain social beings with social responsibilities. The next issue becomes, then, how to determine when, and in what contexts, adolescents should be allowed to express and experience religious environments and beliefs as they see fit.
Recognizing that adolescents may be competent enough to hold religious beliefs worth protecting and that they may be deemed legally competent to control their rights in some contexts underscores only part of what the legal system may need to consider if we are to take adolescents’ religious rights seriously. Taking their rights seriously would mean that the legal system would respect their right to self-determination and structure their social environment in ways that foster self-determination simply because it remains unlikely, and inappropriate in most contexts, to bestow upon adolescents total control of their rights. Their rights and obligations must be balanced against those of others. In envisioning how to achieve this balance, the need to enhance dynamic self-determination is key in guiding the development of policies to regulate adolescents’ religious development and environment.
The central tenet of dynamic self-determination directly focuses on the manner in which the legal system bestows and frames rights. The standard suggests that adolescents must gain more control over their own decisions as they develop and that they should enjoy autonomous rights consistent with their evolving capacities. Most fundamentally, the principle demands that adolescents be allowed space within their personal relationships, families, religions, and cultures to find their own mode of individual fulfillment. As conceived, self-determination aims to position adolescents to develop their own perceptions of their well-being as they enter adulthood, rather than foreclose on the potential for such development. The principle also involves ensuring that the legal system structures adolescents’ environments so that they can recognize violations against their religious rights; the legal system can play a powerful role in raising adolescents, parents, and broader society’s awareness. Despite the focus on individual fulfillment, the principle recognizes the social nature of development and seeks to involve adolescents in community membership and to foster responsible citizenship. A close look at social science evidence and the law reveals that efforts to achieve an appropriate balance are already occurring and that adolescents, families, and society would benefit from legal environments that recognize and respond to adolescents’ need for self-determination.
Much controversy clearly would accrue to any suggestion that adolescents would benefit from being allowed to explore, question, and resolve their own matters of faith. Even more resistance would arise if the proposal were to suggest that parents and communities would benefit from such self-determination. Yet, existing research clearly favors those proposals, rather than authoritarian, external impositions of religious beliefs and practices. Active self-determination in supportive environments may be difficult to imagine after years of thinking of religion as something imposed according to traditional beliefs, but the reality that emerges from research is that traditions become most relevant to individuals whose beliefs result from internal pressure, rather than from external sources. This is especially true in our complex, civil society, which lacks clear religious rituals for adolescents that would cement respect for religious principles and traditional hierarchies (as are present in more traditional, violent rites of passage, for example). In authoritative environments, adolescents actually become more religious, in the sense that they search for meaning in life, evaluate the importance of faith in their lives, commit themselves to community causes, and become more accepting of others’ religious beliefs and practices. We also have seen that adolescents who approach religious issues in this manner have the healthiest social and psychological outcomes. Those who fear that adolescents may become irreligious and shirk responsibilities, then, may feel confident that the opposite seems to occur. Those who fear that adolescents will become more religious may be the ones with more grounds for concern, but their concern loses legitimacy to the extent that our legal system formally seeks to protect matters of faith and protect individuals’ religious choices.
As with other legal developments discussed earlier, existing legal systems already attempt to foster self-determination. The use of the maturity standard illustrates the feasibility of this approach. The standard, for example, has been used to determine access to medical services, including access to abortion, medical testing, and treatment. Following their initial reluctance to interfere with the judicially recognized sacred duty of parents to raise their children, the courts have since the late 1970s taken a more active role in ordering medical care for children, religious objections by parents notwithstanding. In some instances, the courts have been willing to order life-saving and even life-enhancing medical treatment, no matter how remote the threat of death or how dangerous the procedure, so long as the medical treatment offers the hope of improving the child’s health. Through these developments, the courts have infringed on the rights of parents, including their religious rights. Thus, as adolescents’ rights have come to be seen as fundamental, and adolescents have been deemed able to determine the outcomes they themselves want, jurisprudence and legislation has increasingly allowed adolescents access to services, courts, and extraprocedural protections.
Although our legal systems increasingly recognize adolescents’ right to self-determination, the principle is still applied narrowly and in limited contexts. For example, current conceptions of the maturity standard generally do not allow for direct intervention into family dynamics and redirection of familial dynamics consistent with adolescents’ levels of maturity. Nor has the principle typically been used to regulate adolescents’ educational environments and their access to such environments. In those instances, clear lines dictate how groups of adolescents gain rights. Few jurisdictions expansively accept the need to better recognize adolescents’ right to self-determination as part of the effort to respect adolescents’ individual rights.
Given the limited attention that is formally paid to adolescents’ self-determination, it is fruitful to examine instances where the legal system distinguishes less between adolescents and adults and more between adolescents and civic concerns. Such instances highlight the critical point that respecting adolescents’ need for self-determination does not mean that adolescents’ rights necessarily trump those of their parents and their communities, but it does mean that adolescents should be treated as individuals able to determine their beliefs and to suffer the consequences when those beliefs lead to harm to themselves or to others. The Supreme Court’s response to the recent slew of statutes to stem hate crimes, including crimes resulting from religious hate, reveals the limits of self-determination. Interestingly, both of the leading cases that set the standards involved adolescents and, equally interestingly, the fact that adolescents were involved simply did not matter to the resolution of the constitutional issues. The first case, R.A.V. v. City of St. Paul (1992), involved a group of juveniles who shaped broken chair legs into a cross and burned it inside the fenced yard of an African American couple who lived across the street from the juvenile who appealed his conviction. The city chose to charge the juveniles under the St. Paul Bias-Motivated Crime Ordinance, which provided that:
Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reason to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor. (R.A.V. v. City of St. Pau l, 1992, p. 2541)
Although recognizing that such statutes try to address hate-motivated conduct, the Supreme Court nevertheless found that they abridge First Amendment rights by regulating the content of expressions. In other words, the ordinance invalidly attempted to regulate expression on the basis of favoritism, or hostility to a certain message. The legislature’s power to proscribe “fighting words” does not extend to the proscription of “fighting words” that embrace a particular message disfavored by law-makers (R.A.V. v. City of St. Paul, 1992, pp. 2544–2545). The Court conceded that the city did have a compelling interest in protecting the physical and emotional well-being of citizens who traditionally have been harassed, but it also noted that the only reason for the city to impose a content-based proscription on expression was to express “their disfavor with certain types of expression” (R.A.V. v. City of St. Paul, 1992, pp. 2549–2550). The Court found the legislature’s efforts unconstitutional, holding that nonverbal expressive activity can be banned because of its action but not because of the idea it expresses. This meant that, while the defendant in R.A.V. could have been prosecuted for violating state statutes that prohibit criminal damage to property, threats of terror, and arson, he could not be prosecuted under an ordinance that punishes the burning of crosses and other hateful expressions.
The Supreme Court construed hate action differently in the next opportunity it had to address the issue, in Wisconsin v. Mitchell (1993). In that case, as we have seen, the Court unanimously supported the state’s penalty-enhancement statute for hate crimes. In Mitchell, an African American adolescent received an enhanced penalty for a criminal assault on a white teenager who was targeted after the adolescent had watched a scene from Mississippi Burning in which a gang of white thugs beat up an African American child while he was praying. In his ruling, Justice Rehnquist distinguished R.A.V. from Mitchell, noting that the former case concerned the content of speech, while the latter concerned “conduct unprotected by the First Amendment” (Wisconsin v. Mitchell, 1993, p. 2196). The distinguishing features of these cases are their violations of what have been referred to as “hate speech statutes,” as opposed to “hate crimes statutes.” The Court noted that “bias-inspired conduct” is “more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest”—all valid state concerns (Wisconsin v. Mitchell, 1993, p. 2201). Accordingly, Wisconsin’s penalty-enhancement legislation passed the constitutional balancing test: the interest of the state in redressing these harms outweighed its obligation to protect the beliefs or biases of the defendant.
The two cases delimit the contours and the significance of self-determination. R.A.V. stands for the freedom to express one’s thoughts and to act on them within the context and confines of content-based expressive conduct, while Mitchell stands for the state’s freedom to regulate proscribed conduct and to impose more severe sentences for crimes motivated by thoughts and beliefs. The distinction between the cases is important because the perpetrators of hate crimes cannot shield themselves with First Amendment speech protections when they commit crimes in order to express their hatred for a group. The holding in Mitchell punishes more severely those who succumb to these protected predilections. The approach is significant; it allows individuals to express themselves, and it assumes that they can determine their actions, regardless of whether they are adolescents. The approach also is significant for one of the key jurisprudential principles on which it stands—faith in the marketplace of ideas. While it could be argued that R.A.V. supports belief in the marketplace of ideas that nurture hate crimes, the Court addressed that concern rather pointedly. A society dedicated to a free exchange of ideas from diverse communities has the responsibility, if not the obligation, to confront bias-motivated hate messages, and, equally important, a community that confronts hate messages will ensure that destructive messages do not win out in the marketplace of ideas, including adolescents’ marketplace of ideas. Society has an obligation to ensure support for responsible self-determination, even and especially for adolescents.
Although these cases directly concerned adolescents and highlight the significance granted to the market of ideas in order to support adolescent development, other settings also take self-determination in a marketplace of ideas seriously enough to allow infringement on religious rights. Especially notable are the cases that regulate school settings that allow the exclusion of religious claims in order to further interaction with prescribed curricula deemed necessary for adolescents’ healthy development and the proselytizing of some students by other students. For example, a common religious freedom claim involves religious parents whose children are required to hear or read objectionable material in the public school curriculum. Religious claimants have asserted a right to “opt out” of classroom assignments that allegedly promote “secular humanism,” most obviously in the form of sex education programs that allegedly push promiscuity and physical education classes that expose students to allegedly immodest dress. The parents and organizations that have brought these challenges typically lose most of these claims (Levesque, 2002). The courts often couch their reasoning in the need to grant school officials the flexibility necessary to respond to the public’s interest in fostering responsible citizens. The proselytizing cases also reflect the recognized need for adolescents to interact with unlike peers. In those cases, the courts evince a greater willingness to make age-based distinctions about the appropriateness of unlike-peer interactions. Indeed, in those contexts, courts are willing to show less deference to parents’ desire to protect their children from interactions with unlike peers as those children mature. These cases reflect a greater level of attention to adolescents’ changing needs and roles. They note adolescents’ decreasing vulnerability to confusion or trauma resulting from ideological discussions among peers and the increased importance of these interactions as adolescents approach adulthood. These cases also highlight much more than the manner in which the legal system recognizes adolescents’ rights differently in different contexts; they highlight the need to ensure that adolescents participate in communities.
The next principle challenges the traditional view that others should control adolescents’ decisions and may ignore adolescents’ potential role in decisions that affect them. The effort seeks to foster adolescents’ participation in decision making and to develop decision-making skills that enable adolescents to become responsible members of society. Although adolescents are usually presumed to be dependent and unable to participate actively in determining their own development, social science evidence emphasizes the need to promote adolescent development by fostering adolescents’ participation in determining their own outcomes. Research consistently indicates that healthy adolescent development results from social and familial contexts that support autonomy, provide structure, and supply warm and involved socializing agents (Levesque, 2002). These contexts offer informational feedback and decision-making rationales and administer consistent consequences as they encourage self-initiation, minimize use of controls, and adopt adolescents’ perspectives. The healthy outcome of autonomy allows adolescents to act on their own volition while still relying on others for support, unlike the frequently fused and confused concept of independence, which implies detachment and minimal reliance on others.
As we have seen in chapter 3, similar dynamics influence adolescents’ religious development and their religious environments. Many studies that assess the values and parenting behaviors of specific religious groups conclude that religiosity engenders authoritative parenting. In turn, these behaviors help account for many positive adolescent outcomes. Importantly, authoritative parenting apparently helps to diminish the negative effects of some parental behaviors deemed harmful by many but encouraged by some religious communities and beliefs, such as corporal punishment. Likewise, certain styles of parenting and family environments clearly contribute to many of the negative outcomes associated with adolescents’ religious behaviors, such as becoming involved in hate groups and delinquent cults. Development largely involves the highly active process of negotiating the development of one’s personal set of values in the context of one’s important relationships. Although the process continues over the entire life course, the need for engagement seems particularly central to the adolescent period. Adolescents evince a high need to belong, a need for attachment to others and to communities, that makes significant the context-driven nature of religious engagement. As we have seen, the nature of that engagement changes as age significantly structures the manner in which young people negotiate their environment, the most obvious change being the developmental process of separation from parental influence, coupled with the increase in the role of peers who help rechannel the nature and saliency of religious concerns. Understanding the role of religion in adolescents’ experiences, then, requires a close look at how they are allowed to engage in the community, peer relationships, and families in which they find themselves.
The law increasingly allows for adolescents’ participation in decisions about their own lives, although still in a limited manner. Respect for the principle of participation most frequently involves efforts to provide adequate information in interventions and to foster inclusion into society. For example, the law already mandates the principle in educational provisions, through its focus on inclusion, its respect for cultural and religious differences, and its recognition of students’ rights to free speech. Likewise, laws provide adolescents in other settings with opportunities to express and explore options, for example, by requiring that adolescents receive counseling before medical services or materials can be provided. In addition, and as we have seen, the law provides some adolescents with access to genuine avenues of complaint in situations in which they feel mistreated, ignored, or abused. In sum, the basic principle reflected in due process—the right to be heard and recognized and to participate in governmental processes that impact one’s rights—increasingly applies to adolescents and different parts of their lives that do not directly involve courts.
Despite this recognition, legal contexts that involve religious matters do not encourage adolescents’ participation as much as research suggests they could. Two examples are illustrative. The first example limits discussion largely on the basis of religious grounds, while the second excludes discussion of religious issues on the basis of adolescents’ presumed inability to participate and learn. Both approaches reveal not only the limitations of approaches that ignore adolescents’ need to participate in matters that affect them but also the positive outcomes that would result if the law were changed to foster adolescents’ participation.
The first example involves recent limitations placed on the nature of discussions between service providers (including school counselors) and adolescents seeking reproductive services and receiving sexuality education. As we have seen, the Supreme Court has approved policies that seek to stifle informed participation. The Court assumes that patients will respond to physician expressions of state policies rationally and critically and that they will be neither unduly influenced nor confused. According to the Court’s vision, as a matter of course patients will simply question physicians who fail to distance themselves from a governmentally dictated message to determine whether their advice or their silence expresses their own professional judgment or results from state policy. Likewise, the Court accepts that patients will take at face value disclaimers by physicians who verbally distance themselves from state-imposed messages and will be unaffected by the apparent dissonance between the views of the doctor and those of the state. The Court’s assumptions about how patients will respond to and be affected by messages conveyed by physicians about state policy conflict with the findings of research that details the dynamics of doctor-patient communication (see Maynard, 1991). As that research shows, the purpose and structure of the doctor-patient relationship vest physicians with immense authority and power in the eyes of patients. Physicians’ authority derives from their superior knowledge, education, and high social and economic status. Patients’ dis-empowered position leads to passivity, a reluctance to question or challenge physicians, and an inability to take control of the topics of discussion; patients suspend their critical faculties and defer to physicians’ opinions (Beisecker & Beisecker, 1990). Findings from doctor-patient interactions strongly indicate that the Supreme Court overestimates the extent to which patients’ critical rationality and inquisitiveness will neutralize the coercive effect of government messages delivered by physicians. Patients are not likely to challenge physicians’ governmentally dictated silence or their biased presentation of medical options. Rather, patients are likely to give great weight to physicians’ expressions of state preferences, not because they are persuaded by the messages but merely because physicians deliver the messages. The asymmetrical, highly emotional quality of doctor-patient interaction makes it probable that physician expressions of the state’s viewpoint will intimidate patients, particularly those who are nonwhite, poor, elderly, female, or adolescent, and lead patients to respond with confusion and deference. Although adolescents (like adults) may be unable to interact the way the Supreme Court assumes they can, we already have seen that adolescents do have a level of competence that could allow them to sort out differences in information. As we have seen, evidence supports the contention that adolescents are not so incapable of complex thought that the state needs to preselect information for their welfare. Importantly, adolescents seem more likely to have the skills needed to evaluate information than those the Supreme Court has recognized in mature teenagers, such as their ability to make decisions regarding abortion and contraception without state or parental input. The available evidence suggests, then, that adolescents could benefit from being more fully included in decision making in areas that affect them.
The second example involves the central argument that underlies the refusal to provide religious groups equal access to elementary and high schools. The argument tends to be that access advances religion because adolescents are impressionable and might misinterpret the school’s involvement in the religious meetings. To the extent that adolescents’ impressionability remains relevant, properly designed policies can help eliminate their reasonable misperceptions of endorsement. Most notably, if a school’s actions might lead to reasonable misperceptions, then the school’s missions and reason for existence require that it attempt to correct it. This view suggests, in fact, that the equal access controversy in public schools presents an educational opportunity. Rather than exclude religion, schools might be better advised to teach adolescents the differences among endorsement, hostility, and neutrality. In addition, and as we will return to, schools could educate students on the fundamental principles of the First Amendment, on the difference between private and public action, and on the reasons to tolerate divergent views. It is the public school’s role to educate students and to inculcate values of inclusion and tolerance, not to foster the values of exclusion and intolerance. By responding to equal access by student religious groups, adolescents can learn to respect the values and beliefs held by others without endorsing those values. Beyond teaching, officials can take other precautions to minimize adolescents’ reasonable misperceptions of endorsement. School officials could specifically disclaim any government endorsement or disapproval of religion. Schools can inform students that groups that meet after school are gathering because they want to meet and not because of any state prescription. In fact, no psychological evidence indicates that a clear message stating that the school neither endorses nor disapproves of the groups that meet on school property after school hours would not suffice to clarify any reasonable misperceptions. Adolescents have sufficient maturity to understand policies that help ensure that school officials’ words and deeds neither endorse nor disparage religion. Through improved education and clear disclaimers, equal-access policies can reduce the possibility of reasonable misunderstanding. These possible school responses are far from far-fetched; they are precisely what seems to be required by the recent Supreme Court decision Good News Club v. Milford Central School (2001), which permits religious groups to meet on school grounds once certain protections are in place. In that case, the Court did not give unfettered and absolute free access to religious groups; the Court required that steps be taken to ensure neutrality toward religion. In fact, the Court reasoned that religious groups must be offered equal treatment for fear that not doing so would breed hostility toward religious beliefs.
Taking adolescents’ participation seriously in the context of schools raises the uncomfortable issue of religious education in public schools. We already have seen that the Court prohibits religious instruction in public education and that the legal system has long been widely understood as forbidding public schools from fostering or inculcating religious belief (see Lemon v. Kurtzman, 1971). Yet the Court also has a long history of clearly allowing public schools to require the study of religion as part of a well-rounded curriculum (see Abington Township v. Schempp, 1963). In a deliberate effort to clarify the apparent confusion regarding the place of religious instruction and education in public schools, the federal government has taken the unusual step of issuing guidelines to help school districts design their own policies relating to religious expression, inform teachers and principals of their responsibilities and the rights of their students regarding religious expression, and provide parents with accurate information about their children’s right to religious expression. The government has done so through its guidelines, Religious Expression in Public Schools (United States Department of Education, 1995). The admittedly brief guidelines simply clarify that, although public schools may not provide religious instruction, schools may provide religous education to the extent that they can teach about religion, including study of the Bible or other scripture (in the context of the history of religion, comparative religion, or the role of religion in history); consider religious influences on art, music, literature, and social studies; and even teach about the religious aspects of religious holidays. In addition, the guidelines emphasize that schools may actively teach civic values and virtues even though those qualities also may be held by most religions. Although rather simple distillations of complex jurisprudential controversies, these guidelines and related efforts nevertheless help refute the myth that religious concerns must be excluded from public schools and convey the reality that schools must address religious issues as part of the educational process.
Although the educational system can, and actually may need to, address religious matters, more systematic efforts to foster religious education inevitably encounter many difficulties. At least two challenges seem to arise that highlight the need to consider how adolescents themselves must participate in finding a proper place for religion in educational settings. The first challenge, and the most likely reason for not offering religious education in a more systematic fashion, involves the inevitability of opposition from some participants whose religious views challenge the notions of openness, dialogue, impartiality, and tolerance that generally serve as a primary rationale for religious education. For example, students who abide by an epistemology based on the authority of revelation may approach religion in ways that challenge knowledge (and actions) based on personal experience, reasoning, and the need to accommodate others’ values. Although this fear may have much merit, we have seen that our legal system already has adopted a pragmatic solution to this concern as it officially requires at least the government-sponsored approaches to religious education to acknowledge that others can hold different beliefs equally sincerely or choose different ways of life. Like our constitutional system, this approach to religious education adopts as its core purpose the promotion of understanding of and respect for people whose cultures and beliefs are different from one’s own and the promotion of positive attitudes toward living in a pluralistic society. These values serve, for example, as the basis for moral and character education movements in public schools, which have been enshrined in many state and federal laws as the foundation for education and for living in our civil society (for a review, see Levesque, 2002). Indeed, it is precisely because we live in a pluralistic society with individuals who hold extreme views that these approaches gain significance.
The second, and obviously more controversial, challenge involves efforts to promote the religious and spiritual development of pupils. This challenge is problematic in that such attempts, at least overt ones, are in fact seen as impermissible and as affronts to the Constitution. Yet, schools already profoundly influence adolescents’ spiritual development (or religious development, broadly defined), even though they may not do so directly; any educational process that shapes minds inescapably conveys a spirituality (see, e.g., Rodger, 2000). Given the paucity of research that examines religious education in public schools, the extent to which schools inevitably address spiritual or religious issues suggests that efforts to address those concerns more directly may benefit from parallel proposals submitted as necessary to address issues of cultural diversity and moral education (see Levesque, 2002) and to approach highly controversial subjects, such as sexuality education (see Levesque, 2000c). The latter analyses reveal that policies that address the broad array of religious concerns would benefit from efforts that seek to (1) recognize the potential centrality of religious faith and practices in the lives of students; (2) affirm the worth of all students, regardless of their religious or secular beliefs; (3) provide students with opportunities to develop skills necessary to gain an understanding of different ways of life and religious perspectives; (4) protect students’ right to practice their religious beliefs in a manner consistent with the demands of civil society; and (5) guard the rights of students to be free from religious intrusion, harassment, or verbal or physical assault if they choose to exercise their freedom from religion. These efforts obviously constitute only a starting point; they essentially offer a minimalist approach that needs much fine-tuning, evaluation, and development before it can address more fully the religious and spiritual needs of adolescents in schools.
Although the law may broadly structure policies that encourage schools to enact and to follow our basic guidelines, the reality is that religious education in public schools remains an emergent field that requires us to advance in uncertain territory. Yet, that territory is far from un-charted. We may draw on our understanding of educational processes and religious development. In addition, policies developed and implemented in other countries, most notably Britain and Canada, may provide useful starting points (see Leicester, Modgil, & Modgil, 2000). Foreign educationalists have shown an extraordinary increase in interest in spirituality and religiosity (see Carr, 1996; Gay, 2000). They have designed a standardized curriculum and sought to address how teachers, even with the best intentions, may lead students to adopt intolerant views. These efforts that address both overt and covert religious perspectives are an important step. At a minimum, they provide evidence that we can more systematically approach religious issues in school settings, since everyone in our society must confront the conceptual indeterminacy and competing views of what should constitute this form of education. They also underscore the need to recognize the role adolescents themselves must play in fostering environments that respect their religious rights and those of others.
The social sciences recognize the central need for adolescents to participate in their social environments, especially those wittingly or unwittingly infused with a religious belief. The legal system, however, has only started to capitalize upon those findings. As we have seen, the participation principle operates at several levels and is buttressed by numerous rights. It most notably includes adolescents’ rights to receive adequate information, to be heard in matters that concern them, and to exercise freedom of expression. It also includes the principles we already have discussed, such as those that encourage policies that allow adolescents to share in decision-making processes and to gradually control the outcomes of important decisions as they achieve legal independence. All of these principles and rights will help adolescents gain respect for and develop their own religious beliefs.
The legal system would be much improved if it were to recognize adolescents’ competencies, foster their dynamic self-determination, and support their participation in matters affecting them. Those principles, however, do not provide a standard by which to determine the extent to which adolescents’ religious rights would be protected. The frequently adopted “best interests” standard emerges as the clearest standard that already is accepted as the fundamental legal starting point to determine how we should treat adolescents.
Reconsidering the types of social environment that would protect adolescents’ religious rights necessarily involves considering what legally constitutes adolescents’ best interests. Both traditional and innovative efforts follow the rule that those who control adolescent development and adolescent’s rights should act in adolescents’ best interests. Without that fundamental rule, the power granted to others loses its legitimacy. Yet, if it is taken seriously, it may lead to results that seem peculiar and unexpected and that hold institutions and individuals legally accountable when they otherwise generally escape accountability. This is particularly critical in that, as we have seen in chapter 4, the standard holds the promise to address private as well as public actions, one of the key limitations of jurisprudence and legislation relating to religion. Despite that promise, it remains difficult to realize that both private and public actors must take adolescents’ interests seriously. In fact, that difficulty helps account for many spirited attacks on the best interest standard that charge that it remains too indeterminate and too subject to decision-maker biases. Yet, the standard still constitutes a key concept in child welfare law. In fact, a close look at existing laws and at the supporting rationales for those laws reveals that the legal system actually allows for holding individuals accountable when they do not act in adolescents’ best interests and that institutions already aim to foster accountability that would lead individuals to act in the best interests of adolescents. Understanding how these rationales could impact adolescents’ religious environments and the laws regulating them, then, first requires a quick look at those laws and their supporting rationales. Understanding these laws, and how they could work with the previously enumerated principles, could help further respect adolescents’ religious rights.
Numerous laws that regulate adolescent life, and those who interact with adolescents, already focus on adolescents’ best interests. First, parents already must act in their children’s best interests. For example, the best interests standard serves as the basic assumption that guides legal responses to family life. It provides the major rationale for allowing parents to control adolescents’ educational experiences and prevents state intervention in families not viewed as abusive. In addition, the law mandates that parents act in their adolescents’ best interests, assumes that adolescents’ best interests guide parent-child relationships, and views that situation as best for society. Second, despite the existence of communities that foster beliefs and practices that may harm adolescents, several legal rules require communities to address factors that lead to clear developmental deficits and to act in adolescents’ best interests. Most notably, several efforts direct resources to adolescents: considerable allocations of what has been called “welfare” continues to be directed toward adolescents and children. In addition, laws indirectly reallocate access to resources through education. Third, peers also must act to foster adolescents’ best interests. Admittedly, developments in law still do not reflect the powerful role peers play in adolescent development and in efforts to foster healthy lifestyles. However, several avenues may be taken to ensure that adolescents’ actions are more consistent with their peers’ interests. At a minimum, efforts could aim to prevent direct harms perpetrated by peers. Efforts also could encourage adolescents to treat each other with more respect and concern for one another’s interests and ensure that people act in others’ interests as well as their own. Although these mandates may seem far-fetched, legal mandates already exist to develop peer relations in these ways. The two institutions that provide the environment in which peers interact and that react to those interactions—schools and juvenile justice systems—already aim to encourage and foster healthy peer interactions (see Levesque, 2000a, 2002). Last, adolescents themselves are an often ignored control and influence on other adolescents. Healthy adolescents act in their own best interests. This is not to negate adolescents’ profound role as social actors but to emphasize that they actively contribute to their own development and that they have responsibilities to themselves and others. Again, laws already interfere in and regulate adolescents’ lives for their own good, as well as protect them from potential harm. In fact, the dual purpose of the law remains the general rationale that allows legal systems to treat adolescents and children differently from adults. Laws that restrict adolescents’ freedoms do so to ensure that adolescents’ best interests are considered and acted upon when practicable.
Despite the slew of legal rules and principles, it still remains difficult and disingenuous to argue that society and individuals actually follow the best interest mandates. The failure is especially true in the context of religious environments that affect adolescents. For example, states do not act on adolescents’ best interests when they allow or encourage discrimination in education, medical neglect, problem family dynamics, or even family violence, all of which have been linked to a focus on protecting religious rights. Likewise, society sometimes stands idly by and, out of respect for religious beliefs, tolerates beliefs that may foster intolerance, prejudice, and hate activity—even though the legal system, as we have seen, hopes, but the law does not require, that society will help foster appropriate responses to problematic manifestations of religiosity. When states deny the basic interests of adolescents in those circumstances, they pursue the best interests of parents, communities, and institutional actors who deny adolescents’ rights, rights that adolescents would enjoy but for their status as adolescents. As the state allows these conditions to continue, however, its actions become increasingly difficult to justify on either traditional or modern jurisprudential grounds. If anything, then, the focus on adolescents’ best interests is far less peculiar than the failure to put adolescents’ interests first when those interests arguably should take precedence in a civil society that aims to protect the rights of all its citizens.
Society, law, and policy typically frame the harms adolescents suffer in these circumstances simply as collateral costs in a system geared toward having private citizens (parents) be responsible for the upbringing of children and as the result of society’s inability to address all harms individuals suffer. Yet, the legal system could respond more effectively to the harms we now recognize as linked to respect for religious beliefs. How the legal system addresses the harms that arise from religion’s role in education and social service delivery is a clear example of the ability of the legal system to respond simply by harnessing already established legal mandates. Recall that the legal system currently tends to allow parents to use vouchers in support of sending adolescents to schools that provide instruction consonant with parental beliefs; similarly, religious groups now receive governmental support to provide services without changing their religious environments and practices. Although such efforts may not affront adolescents’ rights, the real possibility exists that some schools may foster religious and other forms of prejudice and that some adolescents may not receive services they would receive if they had access to secular service providers. That is, these policies raise the possibility that those entrusted with the care of adolescents may not respond appropriately to adolescents’ own best interests. The legal system, however, already allows for reconsidering educational and social service delivery while still respecting adolescents’ religious rights, their parents’ rights, and civil society’s basic foundational principles.
Greater protection for adolescents’ best interests can come in many ways consistent with our democratic ideals (see Minow, 1999), but programs that consider adolescents’ roles in civil society would at least benefit from considering the following possibilities, which are already permitted by our legal system. First, no private school or program should be eligible for support through public dollars or vouchers if its mission or practices exclude individuals on the basis of religion, race, ethnicity, or nationality. Second, schools that receive public funds or vouchers must engage in educational programming to address the legacies of intergroup hatred and conflict and to promote tolerance and respect across religious, racial, and ethnic groups. Such programs should include not only in-class curricula but also common activities that directly connect students with peers from other schools with a different religious affiliation, or none. Third, to permit effective comparisons of their operations and outcomes, all participating programs and schools must supply comparable information to watchdog and public groups. These requirements offer minimal protection against segregated, self-confirming enclaves and the erosion of the shared public space necessary for a complex, vibrant, and pluralistic society. Last, neither Charitable Choice nor school voucher programs should be allowed to eliminate a genuinely accessible and attractive secular option for adolescents who do not want to deal with a religious provider of services or schooling—an option that requires providing adolescents and their parents with the type of information necessary for making informed choices. Overall, the approach reflects the fundamental purpose of the public policy of this constitutional order, which involves the need to prepare people to become liberal democratic citizens. That constitutional mandate means promoting an overall order in which the values of bonding, sect-like associations are, on the whole, subordinate to the virtues of bridging associations. As much as many may argue against the rights of adolescents or champion the rights of parents to determine their children’s religious environment, that fundamental civic purpose remains the foundation on which our society stands.
Matters under familial control clearly offer a more fundamental challenge. The current focus on the best interest of the child places very high obstacles in the path of efforts to intervene directly in family life: adolescents must suffer, or be at risk for suffering, a recognized form of harm (such as child abuse). That the focus on harm exists, though, is not the end of our discussion. We already have seen how commitment to pluralism, religious freedom, and parental rights long has provided parents with the authority to opt out of the public schools. Yet, we also have seen that the power to do so is not absolute. Even when parents opt for home schooling, for example, they still are subject to state regulations. When the rights of adolescents are deemed fundamental, the state has an obligation to protect those rights. Likewise, removing adolescents from schools can be done only in the presence of alternatives; this was emphasized in the leading parental rights case that recognized the power of parents to remove their adolescent children from school, Wisconsin v. Yoder (1972). In addition, it is important to keep in mind that to think of state intervention as direct involvement in families is to take an unnecessarily narrow view of state intervention in family life and to miss what may constitute the vast majority of laws that do regulate families. We have seen, for example, that changing schools and peer relations means impacting families, as does changing the nature of social service delivery. Recognizing and responding to the powerful social forces outside families—especially religious institutions—does not mean that policies must sever the powerful bonds between parents and adolescents. Rather, recognizing the role of social forces outside families simply means that they must be considered if we are to ensure that adolescents have options when their relationships fail to operate in their best interests and to help them determine what they deem potentially so important and central to their humanity.
Religious institutions and beliefs shape us and the future of our democracy. As it has throughout the history of our nation, religion plays a key role in determining the nature of communities, family dynamics, interpersonal relationships, and even social policies. As we have seen, despite efforts to exclude religion from the public (and sometimes private) sphere, religious beliefs and groups play central but often enshrouded roles in policy-making and in shaping individuals’ cultural and personal identities. We continue to witness rapid changes in the legal foundation of adolescents’ religious environments, and evidence suggests that we have reached a critical juncture. The rapid changes in the regulation of religion and the impact of those changes on adolescents lead us to conclude that we cannot hope to address adolescents’ and society’s needs without more structured responses to adolescents’ place in the law, that we cannot rely on the received faith that adolescents’ interests are addressed adequately as we address the rights and needs of those who control adolescents’ social environments. Although it may seem irreverent and even antireligious to suggest that we cannot rely on past faiths, it serves to highlight the law’s now wide-ranging regulation of religion. Given the law’s impressive reach, we cannot cling to traditional paradigms and assumptions about the inherently private nature of religious faith that champion efforts to leave religion alone and subject to the will of those who traditionally have controlled adolescents. We cannot do so simply because the legal system structures our private and more public religious environments. Because of the law’s role and the civic ideals imbued in law, the legal system requires close scrutiny to ensure that it furthers freedoms, rather than stifles them.
A close look at how the legal system approaches adolescents’ religiosity and religious environments reveals many inadequacies. The failure to address more directly adolescents’ needs, abilities, and peculiar place in families, communities, and the law becomes quite suspect when we consider two points. First, issues relating to religious freedom clearly involve rights that deserve protection of the highest order. Although we have seen that recent Supreme Court cases do not grant religious rights absolute power over other, potentially competing rights and societal interests, religious rights nevertheless remain highly regarded and respected. Second, the Supreme Court recognizes that the legal system must respect religious rights even when the rights holders are adolescents. The Court continues to extend important due process rights to adolescents, affirms fundamental (but highly controversial) privacy rights, and even recognizes adolescents’ rights involving freedom of conscience. These extensions of adolescents’ rights, however, have yet to take full shape and have been explored only in limited contexts. In fact, we have seen that much of the analyses of adolescents’ rights involves analyses of other groups’ rights.
The need to address adolescents’ religious rights more directly makes critical the type of analyses just offered. Available social science evidence and innovative laws suggest a need to rethink adolescents’ rights and offer paths to greater legal recognition. Equally important, existing laws already provide mechanisms consistent with new conceptions of adolescents’ rights, and the existence of several innovative efforts to address adolescents’ rights suggests that such efforts are far from futile. As we have seen, effective efforts genuinely involve adolescents in the planning and implementation of programs and laws and recognize that groups and communities channel and constrain behaviors, even those as profoundly intimate as religious activity. Thus, it increasingly makes sense to ensure the fundamental democratic principle that all people have a right to self-determination, to participate in society in a democratic manner that appreciates individuals’ basic interests, and to exert more control over the rights that would benefit them. All of these ingredients have been identified as important to positive adaptations to civil society.
Although the social sciences may suggest and the law may support and even require the development of the types of principles presented, we also have seen that much controversy would attach to such efforts. This is unsurprising; the development of adolescents’ rights always has engendered much controversy. We also have seen that recognizing the right to explore ultimate questions with an unfettered conscience may prove a difficult challenge for a society that places much weight on the rights of parents to determine their children’s religious upbringing. Rather than ignoring objections to efforts to grant greater respect to adolescents, our analyses reveal the need to accept those challenges and to respond to them properly. The legal system can help recognize issues and structure responses. That the legal system can guide such intervention in adolescents’ lives as it regulates religion is just as critical for reform and inquiry as are efforts to protect adolescents from overt violations and discriminations that are now routine matters for the child welfare system, as well as the educational and the juvenile justice systems. In fact, laws already exist that may be harnessed to help foster healthy and supportive adolescent development, including adolescents’ religious identity and the impact of that identity on their social dispositions.
A close look at what the law can help accomplish also highlights its limits. Given the needs of civil society, of a society poising itself to foster and respect religious freedom, the law cannot embark wholeheartedly on many of the suggestions offered by those who seek to harness governmental resources to involve adolescents in religious activities. The legal system cannot do so even though the social sciences support the claim that religiosity is linked to an impressive array of positive outcomes for society and even for adolescents themselves. Although religious beliefs are linked to positive outcomes, we have seen that the links are not as direct as current discourse suggests. In fact, adolescents’ responses to religious concerns—adolescents’ search for meaning in their highly controlled environments—includes many potentially negative outcomes. The existence of either possible outcome may reveal limitations on the law’s impact, but it also suggests the central role of law—how the law can and must structure adolescents’ environments.
Understanding the potential role of law has meant that our investigation necessarily has ventured beyond current constitutional, jurisprudential, and legislative mandates. It has meant, first, understanding the role of religion in adolescent life. The investigation revealed that much depends on adolescents’ internal and external resources. No single psychological, social, or cultural factor explains adolescents’ religious dispositions (including antireligious dispositions) and the impact of those dispositions on adolescents’ developmental outcomes. Rather, a constellation of forces work together to achieve positive outcomes and healthy development (or their opposite). Drawing on available social science research that has explored the nature of adolescence and the possible influence of religious concerns on adolescent development, we have offered legal principles to help better guide responses to adolescents’ peculiar place in society and law. Considering these principles in our efforts to respond to adolescents can help ensure that we recognize both adolescents’ abilities and their peculiar social condition in a manner that will help ensure greater respect for adolescents’ own religious needs.
It may be naive to suggest that greater recognition of adolescents’ individual needs and concerns may lead to positive outcomes, not the least of which is allowing adolescents to negotiate their own paths to meaningful lives. Parents, not society, traditionally have carried the burden of socializing and preparing adolescents for adulthood. But, time, society, families, and the law have changed. There is a pressing need to move beyond simple causal models in order to understand fully both adolescents’ religious development and the impact of religious development on adolescents’ developmental outcomes. Religion infuses adolescents’ environments, and it is that infusion that impacts religiosity and developmental outcomes. The current social science understanding of those environments led to our development of key guiding principles, which find remarkable parallels in those that our legal system views as foundational to participation in modern civil society. Although religious choices, and the provision of environments to help recognize and foster choices, surprisingly have not been part of the discourse on adolescents’ rights and youth policy, we have seen that they can play a role in fostering a more mature, appropriate, and just development of adolescents’ rights. We have seen that jurisprudential and legislative developments, coupled with rapidly changing social conditions that affect adolescents, place us at a critical juncture that we can no longer ignore. Achieving the goals of our civil, pluralistic society requires a recognition that all people deserve and have real opportunities to develop and follow their convictions in a society that understands and responds to the potential of those convictions in every-one’s lives.