What Is Right for Children?

What Is Right for Children? The Competing Paradigms of Religion and Human Rights

Edited by Martha Albertson Fineman and Karen Worthington

What is right for children?

To our children

What is Right for Children?

The Competing Paradigms of Religion and Human Rights

Edited by Martha Albertson Fineman Emory University School of Law, USA Karen Worthington Emory University School of Law, USA

© Martha Albertson Fineman and Karen Worthington 2009 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the publisher. Martha Albertson Fineman and Karen Worthington have asserted their right under the Copyright, Designs and Patents Act, 1988, to be identified as the editors of this work. Published by Ashgate Publishing Limited Ashgate Publishing Company Wey Court East Suite 420 Union Road 101 Cherry Street Farnham Burlington Surrey, GU9 7PT VT 05401-4405 England USA www.ashgate.com British Library Cataloguing in Publication Data What is right for children? : the competing paradigms of religion and human rights 1. Children’s rights - United States 2. Children’s rights Cross-cultural studies 3. Children’s rights - Religious aspects 4. Children - Legal status, laws, etc. - United States I. Fineman, Martha II. Worthington, Karen 323.3'52 Library of Congress Cataloging-in-Publication Data What is right for children? : the competing paradigms of religion and human rights / [edited] by Martha Albertson Fineman and Karen Worthington. p. cm. Includes bibliographical references and index. ISBN 978-0-7546-7419-1 1. Freedom of religion--United States. 2. Children’s rights--United States--Religious aspects. 3. Parent and child (Law)--United States. 4. International and municipal law-United States. I. Fineman, Martha II. Worthington, Karen.



KF4783.W43 2009 342.7308'772--dc22

ISBN

978 0 7546 7419 1 (hbk)

2009000941 ISBN 978 0 7546 9901 9 (ebk.V)

Contents Notes on Contributors   Acknowledgements  

ix xi



1

Introduction What is Right for Children?   Martha Albertson Fineman

Part I

Children’s Rights as Human Rights   

1 The United Nations Convention on the Rights of the Child: Empowering Parents to Protect Their Children’s Rights   Barbara Bennett Woodhouse and Kathryn A. Johnson 2

Child, Family, State, and Gender Equality in Religious Stances and Human Rights Instruments: A Preliminary Comparison   Linda C. McClain

3 Rhetoric, Religion, and Human Rights: “Save the Children!”   Barbara Stark 4 Feminist Fundamentalism on the Frontier between Government and Family Responsibility for Children   Mary Anne Case

7

19 45

59

Part II Children in the United States: The Legal Context    5 6

Using International Human Rights Law in US Courts: Lessons from the Campaign Against the Juvenile Death Penalty   Linda M. Keller

83

The Lesser Culpability of the Juvenile Offender: Trial in Adult Criminal Court, Incarceration with Adults, and Excessive Sanctions   107 Bernardine Dohrn

What is Right for Children?

vi

7

Parental Rights Doctrine: Creating and Maintaining Maternal Value   123 Annette R. Appell

8

Placing Children in Context: Parents, Foster Care, and Poverty   145 Naomi Cahn

9

Expanding the Parent–Child–State Triangle in Public Family Law: The Role of Private Providers   Susan Vivian Mangold

169

Advocating for Children’s Rights in a Lawless Nation: Articulating Rights for Foster Children   Barbara Bennett Woodhouse and Brooke Hardy

195



A Proposal for Collaborative Enforcement of a Federal Right to Education   Kimberly Jenkins Robinson

205

12

Taking Children’s Interests Seriously   Martha Albertson Fineman

10 11

Part III 13

Comparisons: Children within the Context of Human Rights   

The Child’s Right to Religious Freedom in International Law: The Search for Meaning   Ursula Kilkelly

14 Clashing Rights and Welfare: A Return to a Rights Discourse in Family Law in the UK?   Shazia Choudhry 15

229

Accommodating Children’s Religious Expression in Public Schools: A Comparative Analysis of the Veil and Other Symbols in Western Democracies    Catherine J. Ross

243

269

283

16 Children, Education, and Rights in a Society Divided by Religion: The Perspectives of Children and Young People   311 Laura Lundy

Contents

vii

17

Children, International Human Rights, and the Politics of Belonging   329 Alice Hearst

18

The Right of Children to Be Loved   S. Matthew Liao

Appendix   Bibliography   Index  

347

365 389 439

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Notes on Contributors Editors Martha Albertson Fineman is the Robert W. Woodruff Professor of Law and the Director and founder of the Feminism and Legal Theory Project at Emory University, USA. Karen Worthington is Director of the Barton Child Law and Policy Clinic, Emory University Law School, USA. Contributors Annette R. Appell is Associate Dean of Clinical Affairs and Professor of Law at Washington University Law School, USA. Naomi Cahn is the John Theodore Fey Research Professor of Law at George Washington University Law School, USA. Mary Anne Case is Arnold I. Shure Professor of Law at the University of Chicago Law School, USA. Shazia Choudhry is Lecturer in Law at Queen Mary Law Department, University of London, UK. Bernardine Dohrn is Associate Clinical Professor at Northwestern University School of Law and founder of the Children and Family Justice Center, USA. Brooke Hardy is an Associate at Sutherland Law Firm, Atlanta, GA, USA. Alice Hearst is an Associate Professor of Government at Smith College, USA. Kathryn A. Johnson is an attorney working in international law and human rights, New York, NY, USA. Linda M. Keller is Associate Professor of Law at Thomas Jefferson School of Law, USA.



What is Right for Children?

Ursula Kilkelly is Senior Lecturer in Law at University College Cork, Ireland. S. Matthew Liao is Deputy Director for the Program on the Ethics of the New Biosciences in the Faculty of Philosophy at Oxford University. Laura Lundy is a Reader in Education and Director of the Research Forum for the Child at Queen’s University Belfast, Northern Ireland, UK. Susan Vivian Mangold is Professor of Law at the University of Buffalo Law School, USA. Linda C. McClain is Professor of Law and Paul M. Siskind Scholar of Law at Boston University School of Law, USA. Kimberly Jenkins Robinson is Associate Professor of Law at Emory University Law School, USA. Catherine J. Ross is Professor of Law at George Washington University Law School, USA. Barbara Stark is Professor of Law at Hofstra School of Law, USA. Barbara Bennett Woodhouse is the L.Q.C. Lamar Chair in Law and Co-Director of the Barton Child Law and Policy Clinic at Emory University Law School, USA.

Acknowledgements We would like to thank the contributors for their time and dedication to this project. We appreciate their willingness to revise their essays and patiently wait as we prepared the final manuscript. We would also like to thank all those who have helped to bring this book together in its final form, including assistant editor Melanie Mendenhall and research assistants Tiffany Hodge, Amelia Kuhn, and Samantha Lemery. Staff members of the Feminism and Legal Theory Project, particularly Celeste Bocchicchio, also offered assistance. Finally, we would like to thank Emory University’s Center for the Study of Law and Religion (CSLR), which supported the development of this book through a grant from The Pew Charitable Trusts. The book is an outcome of the CSLR research project, “The Child in Law, Religion, and Society.” The editors serve as CSLR Senior Fellows.

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Introduction

What is Right for Children? Martha Albertson Fineman

What is Right for Children? is built around a series of provocative assertions. The first is that in the United States, conservative religious beliefs about the appropriate ordering of authority in the family have been strengthened by law. Second, these beliefs are intertwined with a complementary and well-entrenched secular sense of non-intervention into the family, which is based on narrow common law principles of parental rights and family privacy. These intertwined religious and secular premises form part of an explanatory framework for considering the failure of the US to ratify the United Nations Convention on the Rights of the Child (CRC) (1989), a failure that distinguishes the US from all the world’s nations, save Somalia. This collection is intended to raise important questions for policy makers in the United States in light of the unanimous acceptance of the Convention on the Rights of the Child by the international community. It will also be of interest to other nations as they struggle to implement the objectives of the CRC. The most basic issue for us all is whether historic balances struck between parental and state authority over children remain appropriate, particularly as both national and international understandings of children and childhood evolve. The Convention on the Rights of the Child The CRC was adopted by the United Nations in 1989, after ten years of crafting. It contains a comprehensive list of human rights relating to children. Some provisions mirror those found in other human rights treaties, but the CRC also sets forth specific provisions directed at the survival, protection, and development of children. Most CRC provisions on their face should not be controversial in a liberal democracy. For example, the CRC establishes that the basic principle of nondiscrimination applies to children. This mandates that girls and boys are to be treated equally. Children with disabilities are not to be discriminated against. However, some Americans believe that the possibility of intra-family conflict is inherent in the very idea that children have rights. They argue that the antidiscrimination principle has the potential to go beyond merely putting children on an equal footing; it could be used to advance the truly “radical” argument that children should be viewed as the equals of adults for many purposes and should not



What is Right for Children?

be discriminated against on the basis of their youth. Such arguments would lead us beyond the non-controversial assertion that, as human beings, children have the same inherent value as adults. It is a more contested assertion; children should have an age-appropriate and gradually increasing right to self-determination, as well as the ability to meaningfully participate in decisions that affect them. To opponents of the CRC, this would undermine parental authority as well as threaten the very existence of the traditional family. Religion, State and Family The United States is theoretically a secular state, but religion is far more central in US policies than in European states with national religions, such as France, or countries with which the US shares common history, such as Canada. In these other contemporary advanced countries, international human rights norms now explicitly form the background for discussion of domestic policies and define governmental obligations. Human rights norms have, in a very real political sense, displaced historic ideas about family hierarchy and traditional roles. By contrast, in the United States resistance to emerging international norms of individual dignity and substantive equality seem particularly pronounced in regard to gender, sexuality, and family issues. Historically, religious doctrines shaped our cultural and social understanding of the American family. Religious mandates gave us the “family values” through which we constructed images of what was normal and what was deviant, as well as defining appropriate family roles for men, women, and children. Law in other common law countries such as England and Canada also initially incorporated and reflected conservative religious sensibilities in defining what is considered appropriate or legitimate in regard to family form and function, as well as what is “moral” in regard to intimate behavior. The historic image of the common law family was initially forged in ecclesiastical courts in England, which developed the laws that defined and regulated the legitimate family. Historically, and in accordance with the church’s approach to marriage, legal and other texts analogized the relationship between husband and wife to other “natural” hierarchical arrangements. Thus, a man was enthroned as head of the family, just as Jesus reigned as the head of the church, and the King was the head of the state. The respective positions of husband and wife were rigidly distinct and patriarchally ordered—husband’s role, as frail wife’s protector, was deemed “divinely ordained.” Common law rules and regulations which eventually took over regulation of the family continued to aid in the construction and maintenance of subordinate gender roles in the family. The structure of the common law mired married women, in particular, in family responsibility and left them on a legal plane far from access to independent and autonomous decision making. Among the religious mandates that found expression in law was that of marriage as a lifelong sexual union blessed

Introduction



and sanctified by God, whose purpose was procreation. Laws prohibiting sexual relations outside of marriage reinforced its preferred position. In addition, family relationships reflected the hierarchical organization of religious society. Authority over children in the common law family was fairly extensive. Its justification was founded upon the necessities of parental responsibility. William Blackstone in his Commentaries on the Laws of England (1811) declared: The power of parents over their children is derived from the former consideration, their duty; this authority being given them, partly to enable the parent more effectually to perform his duty, and partly as a recompense for his care and trouble in the faithful discharge of it … [t]he power of a parent by our English laws [is] sufficient to keep the child in order and obedience. He may lawfully correct his child, being under age, in a reasonable manner; for this is for the benefit of his education. (p. 452)

References to “parents” in this context should be understood in light of the further admonition by Blackstone, in the same chapter, that he was discussing the “legal power of a father (for a mother, as such, is entitled to no power, but only to reverence and respect) …” (p. 453). James Kent’s Commentaries on American Law [1827] shows how this version of a gendered and authoritarian family also took root in the US: In regard to wives—the husband acted as her guardian, and was bound to maintain her. Therefore “the law has given him a reasonable superiority and control over her person and he may even put gentle restraints upon her liberty if her conduct be such as to require it …” (p. 181)

State v. Rhodes (1868) set out the role of family privacy, which abandoned both subservient wife and child to discipline and possible abuse: The courts have been loath to take cognizance of trivial complaints arising out of domestic relations … the evil of publicity would be greater than the evil involved in the trifles complained of … however great are the evils of ill temper, quarrels, and even personal conflicts inflicting on temporary pain, they are not comparable with the evils which would result from raising the curtain and exposing to public curiosity and criticism the nursery and the bed chamber. (p. 454)

In the United States, the moral or divine sensibilities swirling around that early common law history have tended to endure, and the family in both the arenas of form and function is viewed by many Americans as a “natural” entity, pre-dating and existing independent of the state. Yet, even in America the laws regulating the family have changed over time, reflecting a more egalitarian set of expectations, at least in regard to husband and wife. The very definition of what or who constitutes



What is Right for Children?

a family has undergone transformation as same-sex couples gain access to marriage and adoption in more and more instances. As changes in the legal perception of the family have occurred, proponents of religious orthodoxy in the United States have reacted as though religion itself was threatened. It is not just the possibility of new forms—but the fear that religion is being displaced by an even more secular framework. Resistance to secularism seems to be a key feature of American fundamentalism. Therefore, it is not surprising that there is vigorous resistance by large segments of the religious community to the movement to expand the definition of the legal family, as well as condemnation of shifting family behavior that would make the institution more egalitarian and flexible. Since this “natural” family is as primary to legal analysis as it is fundamental in religious orthodoxy, it is not surprising that increasingly we find corollary resistance and condemnation of innovations in family form in political discourse and policy platforms. In other countries the lines drawn historically to balance authority over children between family and state have been substantially redrawn and they have moved beyond the traditional notions confining the family and afford greater protection and support for the child as an individual. This has not been the case in the US. In the United States we need to rethink our approach to children with explicitly secular, rather than religious, sensibilities providing the framework and defining state obligations. How should our expanded and deepened political sense of equality and individual liberty, even within the family, be integrated with our understanding of the rights and responsibilities of children within and without the family? Certainly the law reflects a tremendous shift in our understanding of the state’s obligation in restructuring and monitoring the rights and responsibilities of adult family members. Does it not have a corresponding obligation to act in regard to children? How should we proceed to rethink and adjust the lines of parental dominion over children in response to the demise of the hierarchical, gendered, and role-defined family? What does the state owe the child in a world in which relationships among individual, family, and state are no longer defined in terms of status, but by norms of individual liberty and autonomy?

Part I

Children’s Rights as Human Rights Introduction As the chapters in this section discuss, the concept of rights for children, even the most basic human rights, is complex. Because children are by their very nature and physiology dependent beings, discussions of rights for children require consideration of how those rights can be exercised and how this might undermine or interfere with the rights of those who have authority over and responsibility for children. The authors in this section explore some of the public and political conversations about human rights, assessing whether the provision of basic human rights to children would destroy the American family as we know it (or as it is envisioned by conservative Christian groups). The authors provide a rich background for assessing the claims of and resistance to children’s rights. Barbara Bennett Woodhouse begins this section with a discussion of how the United Nations Convention on the Rights of the Child (CRC) aligns with American values and laws. Much of the opposition to the CRC in the United States relates to perceived infringements on parents’ rights. Woodhouse investigates the merits of this objection and asserts that the CRC strengthens rather than undermines the role of parents and families. In her analysis, the anti-CRC rhetoric does not reflect the actual provisions of the CRC, which she argues need not be viewed as antagonistic to parents’ rights in regard to their children. Barbara Stark gives us the other side, introducing us to the threats to the family inherent in the CRC as they are perceived by certain Christian groups. She considers the ways in which religious groups have claimed and reshaped discourse around human rights and children’s rights. Stark places this in historical context by providing an overview of past campaigns for human rights and civil rights in the US. She compares the political and cultural shifts in thinking associated with the human rights campaign after World War II and the domestic civil rights movement of the 1960s with the current campaign for children’s rights. She concludes that the contemporary rhetoric casting God and family as the victims of a rights movement was not possible in other rights’ struggles, which were more sympathetically embraced by the majority of Americans. Linda McClain provides some insight into the extent to which some conservative Christian groups are impacting US public policy. She analyzes and compares the approaches of some American conservative Christian religious groups to children and the family, expanding on the ways in which they perceive the threats posed by a human rights paradigm. McClain challenges our current notion of the “ideal



What is Right for Children?

family” and the concept of “family values” that underlies that idea. Drawing on the importance of contemporary American political and constitutional values, such as equality, as well as international human rights doctrines, she then contrasts the rights vision with different religious groups’ concepts of child, family, and the State. The question she poses is whether these differences in conceptualization can ever be reconciled. Mary Anne Case presents her argument as a feminist fundamentalist by adapting the language used to describe religious positions in order to highlight her commitment, and, indeed, the US constitutional obligation, to sex equality. Although Case illustrates this constitutional obligation in a variety of cases before the Supreme Court, she notes that those cases involving children and religion in the family are not so clear in supporting sex equality. In fact, she argues that judges have been reticent to deny parents the right to socialize their children, even if such socialization encourages discrimination based on sex and particularly if the parents’ claims are based on religious convictions. Case’s chapter brings us back to the first chapter in the section, reminding us of the intimate relationship between women’s rights and children’s rights.

Chapter 1

The United Nations Convention on the Rights of the Child: Empowering Parents to Protect Their Children’s Rights Barbara Bennett Woodhouse and Kathryn A. Johnson

Responding to the horrors of child abuse, the deaths of children from war and conflict, and children suffering from disease and hunger, the nations of the world agreed to draft a document addressing the special dangers children face and articulating their rights as young humans. On November 20, 1989, the United Nations General Assembly adopted the Convention on the Rights of the Child (CRC), which guarantees children individual human rights while strengthening the role of parents and the family. The overall principles of the CRC recognize the child as a person, with evolving capacities. The seven rights set out by the CRC have been described as falling under four core areas: non-discrimination; the best interests of the child; the right to life, survival, and development; and the views of the child. Article 2 of the CRC spells out the non-discrimination rights. State Parties must ensure that all children within their jurisdiction enjoy their right to live without suffering discrimination. This applies to every child, “irrespective of the child’s or his or her parent’s or legal guardian’s race, color, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status” (Article 2). When governments make decisions that affect children, the best interests of children must be a primary consideration as defined in Article 3 of the CRC. This principle applies to decisions by courts of law, administrative authorities, legislative bodies and both public and private social-welfare institutions (Van Bueren, 1995). While there is no concise definition of the “best interests of the child,” persons involved in the child advocacy field evaluate different factors to determine what is best for the child overall. Those factors include physical safety, emotional wellbeing, and a child’s healthy growth and development (Woodhouse, 1999). Article 6 of the CRC relates to the right to survival and development, which governments must ensure “to the maximum extent possible.” The term  This chapter appeared in The United Nations Convention on the Rights of the Child: An Analysis of Treaty Provisions and Implications of U.S. Ratification by Jonathan Todres, Mark E. Wojcik and Cris R. Revaz (2006), and is reprinted by permission of Koninklijke Brill NV.



What is Right for Children?

“development” in this context is interpreted in a broad sense, referring to the physical, mental, emotional, cognitive, social, and cultural development of the child. Developmental rights include the rights to nurture, love, food, health care and education. The State has a duty to support parents’ responsibilities in these contexts by providing appropriate economic and social supports. Survival rights include the rights to life and life-protective interventions (Van Bueren, 1995). The participatory views of the child are also very important and are detailed in Article 12 of the CRC. Children have a right to participate in all matters affecting them, and their views should be given due weight “in accordance with the age and maturity of the child” (Article 12). In short, children have the right to be heard and have their views taken seriously, and the same Article confers on the child the right to be consulted in matters that affect his or her well-being. Since its adoption, 192 countries have ratified the CRC (United Nations Children’s Fund [UNICEF] 2006), and only two countries have not. Those two countries are the United States and Somalia. Somalia cannot ratify the treaty because it lacks a formal government due to civil strife. The US fully participated in the drafting process, and President Clinton signed the CRC in 1995, but the Bush Administration failed to bring the CRC before the Senate for a vote on ratification. Meanwhile, the US ratified the two Optional Protocols to the CRC on December 23, 2002 (subject to certain reservations, understandings, and declarations). The first Optional Protocol deals with children in armed conflict. The Protocol states that the minimum age for compulsory recruitment into a State Party’s armed forces is 18. Also, the State Parties must take “all feasible measures” to ensure that members of their armed forces who are under 18 years old do not take a “direct part” in hostilities (Article 1). The second Optional Protocol deals with the sale of children, child pornography, and child prostitution. The Protocol requires State Parties to protect children up to the age of 18 by treating the exploitations of children as criminal acts that merit serious punishment. The ratification of these Protocols suggests that the US can ratify the CRC without compromising sovereignty or robbing parents of their roles and duties. Additionally, it demonstrates that the US is finally addressing the human rights abuses against children (Detrick, 1992). Ratification of the CRC in the US would indeed provide an opportunity to focus on children’s rights as we have on the rights of other groups. Ratification means considering children as persons with clear interests and individual voices. Around the world and increasingly here in the US, the CRC provides children and adults with a shared framework for thinking about rights for children. The CRC gives the world a “clear, coherent, and comprehensive” legal instrument devoted solely to children’s rights as opposed to the “incomplete” and scattered provisions in the previous treaties (Detrick, 1992). However, the Bush Administration’s position on the CRC is best demonstrated by a US State Department statement:

The United Nations Convention on the Rights of the Child



It is misleading and inappropriate to use the Convention as a litmus test to measure a nation’s commitment to children. As a non-party to the Convention, the United States does not accept obligations based on it, nor do we accept that it is the best or only framework for developing programs and policies to benefit children. (Free the Children, 2005)

The CRC and Traditional Family Values Opponents believe the CRC will undermine parental authority, interfere with parents’ ability to raise and discipline their children, and make the rights of children more important than the rights of parents. Nothing could be further from the truth. In reality, the CRC repeatedly refers to the importance of the parent-child relationship, places new obligations on parents through responsibilities owed to their children, and requires governments to respect the rights and duties of parents. Many existing US policies are already aligned with the CRC, and these policies do not interfere with parental rights but instead help parents protect their children from harm. Another reason for US reluctance to ratify the CRC is a fear that the rights enumerated must translate into individual causes of action against the State. Traditionally, the US recognized civil and political rights (such as the rights to expression, assembly, and due process) but not economic, social, and cultural rights (such as the right to education, health care, and an adequate standard of living). The CRC includes both. But the economic, social, and cultural rights are qualified by language sufficiently broad to accommodate a wide range of approaches by nations of varying levels of economic development and with all kinds of political systems. While each child has a moral right under the CRC to health care and education, the methods adopted and the levels of care supplied will vary according to the circumstances and traditions of each nation. Americans, by definition, assume that rights exist to be asserted in relation to someone or something that could potentially take the rights away. When Americans think of rights, they imagine a person who asserts his or her right to speak under the First Amendment or his or her right not to speak, after receiving a warning about the right not to incriminate oneself. Some critics assumed the CRC would give children the same rights against their parents that individuals have against their governments. It is a mistake to read children’s rights in the CRC as rights against their parents. Parents rightfully occupy a special role within the CRC scheme, as protectors, not oppressors, of children. What the CRC does provide children (and their parents) is protection from the intrusion of government into their rights. Many nations agreed to observe basic human rights for their adult citizens and signed the United Nations Covenant on Civil and Political Rights (1976). This Covenant is consistent with the US Constitution’s fundamental principle that citizens must be protected from government interference with basic human rights. The CRC extends this reasoning to children. The CRC aims to protect vulnerable children by providing a range of

10

What is Right for Children?

civil, political, economic, social, and cultural rights appropriate to children and youth, which the government agrees to uphold. It is not possible to talk about children’s rights without talking about parents’ rights. Parents’ rights play a central role in the concept of children’s rights and vice versa. The CRC recognizes that to strengthen the rights of children, it is essential to strengthen the rights and responsibilities of parents. Children are not competent to function as adults, and the CRC does not suggest that they are. During the period of development from helpless infants to competent adults, children require the nurturing care and support of parents or guardians. Children do not exercise their rights in a vacuum, and they do not exercise their rights without parental supervision and guidance. For US parents confused or concerned about the intent of the CRC, it might be helpful to consider an analogy to a trust fund. Children often have savings accounts held in trust by their parent or guardian. The philosophy behind this is that the money belongs to the child but, because the child may not be mature enough to have control of these resources, that job falls to the responsible adult. The responsible parent or guardian is the steward of the child’s property. Similarly, the CRC views parents as the stewards of their children’s rights. To extend this analogy, the CRC acts to make a large deposit into the child’s trust fund of rights. Instead of the parents having stewardship over a small savings account, they now have stewardship over a much more significant account. When a child’s trust fund grows, the child is wealthier, but the parent is not poorer. The CRC adds to the rights guaranteed to children, but it does not diminish the rights guaranteed to their parents. This concept is reflected in the CRC by identifying a developmental principle called “the evolving capacities of the child,” which establishes that it is up to parents to provide “appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention” (Article 5). The CRC is explicit in its support of the role of parents and the family. Article 5 states that “States Parties shall respect the responsibilities, rights and duties of parents, or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child” (Article 5). One area of the CRC that provokes controversy and opposition is the notion of children’s participatory rights: the right to express their views freely in accordance with their age and maturity, the right to be represented in all judicial and administrative proceedings, and the right to be considered as persons with interests apart from their parents. However, Americans should realize that recognizing children’s rights as stakeholders and citizens to participate in society and in legal proceedings is nothing new. Under existing laws and decisions, children have First Amendment rights to free speech and rights to a lawyer in a criminal case. Doctrines and procedures are tailored, however, to meet children’s special circumstances as developing persons. Voting age limts are one example of ways in which children’s and adults’ rights are not equal. The CRC does not suddenly liberate children to subscribe to pornographic magazines or hijack classroom discussions with topics of their own choosing. Such

The United Nations Convention on the Rights of the Child

11

extremes only undercut children’s rights to nurture, education, and protection. The CRC certainly does not allow children to usurp the authority of parents. On the contrary, the CRC promotes the same principles implicitly supported by the Constitution and developed through judicial decisions. Over 80 years ago, in Meyer v. Nebraska (1923), the Supreme Court recognized parents’ rights to control and custody of their children and to raise them as they see fit as fundamental rights. In Ginsberg v. New York (1968), the Court wrote that “constitutional interpretation has consistently recognized that the parents’ claim to authority in their own household to direct the rearing of their children is basic in the structure of our society” (p. 639). This realm includes family relationships, child rearing, and education. Parental authority is not absolute, and there are limitations on this right. If the parental decisions amount to abuse or neglect of the child, the parental right is no longer constitutionally protected. In the United States we have long accepted that children are separate individuals apart from and distinct from their parents and we have incorporated this notion into our laws by making children’s best interests the cornerstone for resolving disputes between family members (Woodhouse, 1999). We presume that the parents agree on a course of action and are acting with the child’s best interest in mind. This presumption can be rebutted with evidence that parents are actually harming their children. When abuse or neglect is present, the State may utilize either its parens patriae power or its police power to interfere. The State must provide due process of law and show by clear and convincing evidence that parents failed in their duties to justify supplanting them as decision makers (Santosky v. Kramer, 1982). This principle is consistent with the CRC’s respect for parental authority. Many of the children’s rights articulated in the CRC are simply mirror images of rights already existing in American law but typically described as rights held by parents. For example, Article 9 ensures “that a child shall not be separated from his or her parents against their will” except through due process of law consistent with the child’s best interests. This right, protecting the family unit from disruption without due process of law, is well established in US law as a right of parents (Santosky, 1982). The CRC recognizes that the right of parents to raise their children is mirrored by the right of children to be raised by their parents. Ironically, some of the provisions of the CRC viewed by American parents as possibly eroding their authority might actually have the opposite effect. Article 13(1) states: The child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or though any other media of the child’s choice.

This is interpreted as meaning that the States signing the CRC agree not to infringe upon the child’s rights to free expression. In the past, the government might interfere with parental discretion by deciding when and how to limit a child’s

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What is Right for Children?

access to information or right of free expression. Under the CRC, the government agrees to protect the right of the child, exercised under the guidance of the parents or guardian, to freedom of expression. The analysis of Article 13 establishes an important philosophical principle of the CRC. Parents are seen as caretakers who will always endeavor to provide guidance and direction in the best interests of their children. The CRC recognizes that children are entitled to basic human rights, and the exercise of those rights will be protected by the parents and gradually turned over to the child when parents consider it appropriate to their child’s individual growth and development. A helpful analogy is parents’ supervision of children’s allowances and earnings. Families vary widely in how much money they give their children and how much freedom children have to spend it. The law recognizes parents’ authority in this realm by requiring parents’ permission before children are permitted to work. Many families believe children learn responsibility by gradually being given opportunities to earn and spend money, but these decisions are still made within the privacy of the family. Article 17 is a provision of the CRC that discusses a child’s right to receive information from a variety of sources. This Article contains five specific ways that States agree to encourage the mass media to provide children with a variety of information and material, especially information “aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health.” The Article also encourages States to develop guidelines to protect children from information and material injurious to his or her well-being. The theme of Article 17 is that the State should encourage, rather than discourage, the media to make appropriate materials available to children. Since children cannot always decide for themselves what information is appropriate, parents, acting in the best interests of their children, would continue to oversee the specific information made available. The US already has programs in effect that help parents protect the rights of their children, as discussed in Article 17. In 1996, the US Congress addressed the concerns of children being exposed to indecent and inappropriate broadcasts by creating the Telecommunications Act of 1996. The Act did not limit broadcasting, but rather required the broadcast industry to create a ratings system. This ratings system is used in conjunction with the VChip to give parents more control over what their children watch. As of January 1, 2000, the Federal Communications Commission (FCC) required all new television sets 13 inches or larger to contain the V-Chip technology (FCC, 2005). The V-Chip allows parents to block television programming they do not want their children to watch. Most television shows now include a rating, as previously established by the broadcasting industry. This rating is encoded into the programs, and the V-Chip technology reads the encoded information and blocks shows accordingly. Using the remote control, parents can program the V-Chip to block certain shows based on their ratings. This is a clear example of how discretion about what children watch on television is left to their parents. Furthermore, the Motion Picture Association of America (MPAA) ratings system and video game ratings systems

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give parents guidelines for what may be appropriate for their children. Video stores are not supposed to rent or sell video games with an “M for Mature” or DVDs with an “R” rating to children under the age of 17. Additionally, the government, through the FCC, regulates interstate and international communications by radio, television, wire, satellite, and cable, thus providing a safer viewing environment for children. Moreover, the CRC in Article 13(2) and Article 17(e) recognizes restrictions necessary to protect children and encourages the development of guidelines to protect children from materials injurious to their well-being. Consistent with this concept, US courts and legislatures have already developed guidelines and restrictions for protecting children from information injurious to their well-being while still allowing for the freedom of information. For example, Congress passed the Children’s Internet Protection Act (CIPA) and the Neighborhood Children’s Internet Protection Act (NCIPA) in 2000. This former Act requires schools K12 and public libraries receiving federal funds to install internet filters that block access to obscene materials, child pornography, and materials harmful to minors (CIPA, 2000). Furthermore, the Act requires the schools and libraries to additionally create internet safety policies in order to continue to receive federal funding (CIPA). CIPA was upheld against First Amendment challenge in US v. American Library Association (2003). Such legislation illustrates how, consistent with the CRC, governments can recognize the interests of libraries and schools in protecting children from harmful materials while still recognizing the child’s rights to free access to information that is not harmful (Article 13; Article 17(e)). Perhaps the clearest statement of how the CRC integrates the rights of children into the scheme of parental rights and authority is reflected in Article 14. Article 14(1) states, “States Parties shall respect the right of the child to freedom of thought, conscience and religion.” The right to freedom of thought, conscience, and religion are generally included in statements of “basic human rights,” and the CRC explains that children are people and are therefore entitled to these rights that we recognize as fundamental to adults. When States agree to grant basic human rights to adults, they are agreeing that the government will not infringe on those rights. This is the type of agreement required in Articles 14, 28, and 19 of the CRC. States are agreeing not to infringe on the freedom of thought, conscience, education, or religion of children. The experience of Jewish children during the Holocaust, and more recently Muslim children in Bosnia and Christian children in China, provide dramatic evidence of the need for protection from such infringement by governmental authorities. Similar to First Amendment reasoning, Article 14 does not regulate intrafamilial relationships, but rather protects children from governmental oppression. Article 14(2) recognizes that these freedoms for children must be understood in the context of their parents and their families: “States Parties shall respect the rights and duties of the parents, and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with

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What is Right for Children?

the evolving capacities of the child.” This Article recognizes the right of parents and guardians to make appropriate decisions for each child. Once again, the stewardship principle is presented. Children are not adults, but they are entitled to basic human rights. Therefore, their rights must be held in trust by their parents and guardians. The assumption is that parents and guardians are in the best position to act in the best interests of their children, and parents have unique roles to play in inculcating religious and cultural values in the next generation. Parents are entrusted with providing direction to their children in the exercise of the child’s rights. As children develop and their capacities evolve, parents and guardians will be in the best position to gradually direct the transfer of rights from being held in trust to being held independently by the children themselves. To promote parents’ ability to protect their children’s rights, some Articles are specifically concerned with protecting the rights and authority of parents. Article 18 ensures that States will “use their best efforts” to ensure that both parents have common responsibilities for their children. Article 18(1) says in part that “[p]arents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child,” while Article 18(2) provides that States “shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities.” Furthermore, Article 29(1)(c) actually establishes that one of the goals of a child’s education should include “[t]he development of respect for the child’s parents.” Other Articles discuss States having responsibilities to assist parents in providing stewardship for their children. Article 27 concerns a child’s right to a decent standard of living. Article 27(3) provides that States “shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programs, particularly with regard to nutrition, clothing, and housing.” The exact legislative schemes and definitions, however, are to be determined by specific governments, as opposed to the CRC. This provides great leeway in how a government applies the CRC. The CRC and US Sovereignty Concerns about US sovereignty were triggered by provisions that appeared to conflict directly with US practices. For example, before 2005, the US objected to the CRC and its implications for the death penalty. The CRC prohibits the use of the death penalty for offenses committed by persons under the age of 18. Since 1990, juvenile offenders are known to have been executed in only eight countries: China, Democratic Republic of Congo, Iran, Pakistan, Yemen, Nigeria, Saudi Arabia, and the United States (Death Penalty Information Center, 2006). On March 1, 2005, by a vote of five to four, the US Supreme Court held that the Eighth and Fourteenth Amendments of the Constitution forbid the execution of offenders who were under the age of eighteen when their crimes were committed (Roper v. Simmons, 2005).

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As recently as 2003, 25 US states allowed executions of juvenile offenders, and on July 1, 2001, there were 85 juvenile offenders on death row in the US (Roper, 2005). In the five years prior to the Supreme Court’s Roper (2005) decision, eight executions of juvenile offenders were carried out in the US. The majority opinion in Roper noted that the execution of juvenile offenders was contrary to the norms established by several international treaties, including the CRC and the International Covenant on Civil and Political Rights. In addition, the Court stated that the overwhelming weight of international opinion against the juvenile death penalty provides confirmation for the Court’s own conclusion applying US constitutional doctrines, that the death penalty is disproportional punishment for offenders under 18. Perhaps predictably, the Supreme Court suffered criticism in the US for drawing upon international law for guidance for its decision. Yet it seems unrealistic and short-sighted to visualize fundamental rights under our Constitution as developing in a domestic bubble, isolated from world developments. The Court’s decision in Roper serves to emphasize that the US, while retaining its sovereignty, does not exist in isolation from the international community. Concerns about federal and state jurisdiction or “federalism” plagued the CRC ratification effort even before Roper. Federalism, the US system of government, grants certain specific rights and reserves all other rights to the states or the people. Implementation of treaties presents special challenges in a federal system of government and the United States is no exception. Through the Treaty Clause found in Article II § 2 and Article VI, the US Constitution grants power to the President, with advice and consent of the Senate, to make treaties with other governments. These treaties are the supreme law of the land. In the Tenth Amendment of the Constitution, “the powers not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Some are concerned that the CRC would derogate from states’ rights because many of the issues addressed by the CRC lie primarily within the jurisdiction of the 50 states, rather than with the federal government. For example, in the United States, individual states are responsible for education and for setting laws related to the administration of juvenile justice. Some critics fear that ratification of the CRC would sweep away all laws at the state level and make the CRC the law of the land. These fears are misplaced. Under established principles of US and international law, the CRC would not be considered a self-executing treaty. The CRC could only be implemented by laws enacted at the local, state, and federal levels. In areas where uniformity is absolutely essential, federal laws might be the best vehicle for its implementation. Federal law already addresses topics such as child custody jurisdiction and child trafficking (Parental Kidnapping Prevention Act, 1980), but state and local bodies would continue to play the leading role in enacting laws adapted to their own needs and circumstances. By contrast, some opponents of CRC ratification claim that the US already implements everything the treaty espouses and ratification would make no practical difference. This reasoning is flawed because there is no comprehensive

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What is Right for Children?

legal scheme to define children’s rights in the United States. Although the US has many programs in place that help safeguard children’s rights, there is still much to do to promote children’s rights and children’s well-being in the United States. Furthermore, the US Constitution does not explicitly enumerate children’s rights, and only some rights have been implied through judicial action. Therefore, the US would benefit from clear benchmarks and standards to ensure the protection of children. In ratifying the CRC, governments commit themselves to promoting all the rights of the child, social and economic, as well as civil and political rights. The CRC places primary responsibility with parents to provide for their children’s needs but it exhorts State Parties to provide support and assistance to parents in fulfilling their roles. Sadly, the US lags behind other developed nations in the resources it provides to assist parents. Working parents in the US lack access to affordable housing, day care and medical care for their families, resources that are routine in the rest of the developed world. Ratification of the CRC would reinforce the notion that our government has a special obligation to support families and invest in America’s children. The periodic reviews mandated by the CRC would remind Americans not to let children disappear from our radar screen of national priorities just because they are smaller, have weaker voices, and are poorer than other interest groups. Under the CRC, children are not only protected from abuses of State power but from all forms of physical or mental violence or abuse while in the care of “parent(s), legal guardian(s) or any other person who has the care of the child” (Article 19(1)), including in schools. While violent and abusive parents are the exception to the rule, they are an exception that must be addressed through effective programs. Disturbing statistics make it clear that the US has not succeeded in protecting all children from abuse and neglect. The National Child Abuse and Neglect Data System (NCANDS) reported an estimated 1,400 child fatalities in 2002 (US Department of Health and Human Services [DHHS], 2004). NCANDS defines “child fatality” as the death of a child caused by an injury resulting from abuse or neglect (DHHS). Sadly, research indicates that children younger than one year accounted for 41 percent of fatalities, while children younger than four years accounted for 76 percent of fatalities (DHHS). Even more troubling to note, the perpetrators of fatal abuse are by definition individuals responsible for the care and supervision of their victims (DHHS). According to a study in 2002, 79 percent of the time when a child fatality occurred, one or both parents were involved in the child abuse or neglect fatalities (DHHS). Although it is important for local authorities to determine who is abusing a child, it is also important to connect and combine the data from child abuse and neglect systems so that abuse and neglect may be properly defined and dealt with. Official statistics do not provide the whole story. For example, studies in Colorado and North Carolina have estimated that as many as 50 to 60 percent of deaths resulting from abuse or neglect are not recorded (Crume, DiGiuseppi, Byers, Sirotnak and Garrett, 2002; Herman-Giddens et al., 1999). According

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to these studies, neglect is the most under-recorded form of fatal maltreatment. Inconsistencies in the definition of key terms such as “child homicide,” “abuse,” and “neglect” cause the numbers and types of child fatalities to vary from state to state, study to study. Some deaths ruled accidental could be more accurately attributed to child abuse or neglect if more comprehensive investigations were conducted, or if there was greater uniformity in the coding of abuse on death certificates. Moreover, the response to child abuse and neglect fatalities is often hampered by inconsistencies, including the inaccurate reporting of the number of children who die each year as a result of abuse and neglect, a lack of national standards for child autopsies or death investigations, the different roles child protective services agencies in different jurisdictions play in the investigation process, and the use in some states of medical examiners or elected coroners who do not have specific child abuse and neglect training (DHHS, 2004). The statistics on child abuse and neglect demonstrate the need for a comprehensive approach to aid parents, guardians, and the state in more effectively protecting children. While ratification of the CRC would not create a uniform code of abuse and neglect, it would focus national attention on the importance of these issues. Periodic review by the Committee on the Rights of the Child would engage the federal government in analyzing systems throughout the states to assure that they were meeting CRC standards. Periodic review of the status of children’s rights has a salutary effect. In fact, many of the 192 countries that have ratified the CRC have begun to change their policies and laws regarding children in response to the Committee’s suggestions. For instance, in Rwanda prior to the ratification of the CRC, children being detained for alleged war offenses were held in adult detention facilities alongside adults, and the detained children did not have the right to legal defense. After the CRC periodic review, reforms were enacted, children are now housed in a separate juvenile facility, and lawyers are permitted to defend them (UNICEF, n.d.). Belgium and Germany both changed their laws in response to the CRC by extending national jurisdiction to cases of child prostitution and pornography (UNICEF). Similarly, in response to the CRC, Romania changed many aspects of its juvenile laws. Overall, the Romanian government reformed the child protection system and trained its magistrates for juvenile delinquency and child abuse cases. Scotland enacted two pieces of legislation, the Children in Scotland Act of 1995 and the Standards in Scotland’s Schools Act of 2000, giving children the right to express their views in a far wider range of decisions. These decisions included court decisions on parental responsibilities, local authority decisions for “looked after” children, and matters relating to children’s education. Adoption laws have also been amended to reflect the intent of the CRC (UNICEF, n.d.). Moreover, in Vietnam, the Ministry of Justice works with UNICEF and nongovernmental organizations to review the judicial process for juveniles, as well as to train judges, police, and other legal professionals on how to apply the CRC (UNICEF). Finally, new justice codes beneficial to children have been enacted in El Salvador, Peru, and Bolivia since the ratification of the CRC (UNICEF).

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What is Right for Children?

Conclusion As other countries have seen, far from threatening the rights and authority of parents, the CRC recognizes the primary role of parents in the care and protection of their children. States signing the CRC agree to assist and support parents in their vital role. Recognizing that children are human beings, entitled to the spectrum of basic human rights, makes the responsibility entrusted to parents more meaningful and accentuates the importance of the State supporting the rights and authority of parents in every way possible. The US should ratify the CRC and take the necessary steps to implement children’s rights in a more pronounced way because the existing measures in the US are not adequate to fully protect American children. Children are still dying at an alarming rate from abuse and neglect in the US, and children’s rights are being ignored on a daily basis. Although the US no longer executes people who committed their crimes when they were juveniles, the country still has a long way to go in the children’s rights arenas. Amnesty International and other children’s rights advocates have set out a list of ways for the US and other countries to implement the CRC into their governmental systems. According to the rights groups, the US, in ratifying the CRC, should pass legislation guaranteeing the rights set out and make available adequate resources to implement these rights. Timely reports should be submitted to the Committee regarding implementation of legislation so that the Committee can make recommendations as needed. Additionally, the US must ensure that children in detention or in the care of public or private institutions are protected from torture or cruel, inhuman, or degrading treatment. In furtherance of the previous suggestion, children who come into contact with the justice system must be subject to special procedures for juvenile justice based upon the CRC. The US must ensure that children are free from sexual exploitation and any other work that threatens the health and welfare of the child. Finally, the US, after ratification, must through legislation and other efforts make the best interests of the child a national priority. Rather than fearing the CRC as an unwelcome intrusion on parental authority, American parents should welcome the CRC as an ally in ensuring their children’s well-being.

Chapter 2

Child, Family, State, and Gender Equality in Religious Stances and Human Rights Instruments: A Preliminary Comparison Linda C. McClain Gender equality will not only empower women to overcome poverty, but also their children, families, communities and countries. When seen in this light, gender equality is not only morally right—it is pivotal to human progress and sustainable development. Moreover, gender equality produces a double dividend: It benefits both women and children … But the benefits of gender equality go beyond their direct impact on children. Without it, it will be impossible to create a world of equity, tolerance and shared responsibility—a world that is fit for children. (UNICEF, 2006, p. viii) The natural family—part of the created order, imprinted on our natures, … the bulwark of ordered liberty—stands reviled and threatened in the early 21st century. Foes have mounted attacks on all aspects of the natural family, from the bond of marriage to the birth of children to the true democracy of free homes … We affirm that women and men are equal in dignity and innate human rights, but different in function … The goal of androgyny, the effort to eliminate real differences between women and men, does every bit as much violence to human nature and human rights as the old efforts by the communists to create “Soviet Man” and by the Nazis to create “Aryan Man.” … We see the prospect of a great civil alliance of religious orthodoxies, within nations and around the globe … to defend our family systems from the common foe. (Carlson and Mero, 2005, pp. 5, 16, 33)

How do religious organizations and human rights instruments compare when envisioning the child, the family, and the state? What are their stances on the role gender plays in families? These questions invite impossibly broad answers, given the manifold relationships and regulatory questions implicit in the child, family, and state formulation. It complicates matters additionally to consider the meaning of equality and its proper domain. Thus, my chapter’s subtitle, “a preliminary

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What is Right for Children?

comparison,” signals that I offer here an exploratory, instead of exhaustive, survey. International human rights instruments declare a commitment to gender equality and to advancing the best interests and rights of children, but a gap persists between these ideals and the lives of women and children. For example, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (1981) (which the US has signed but not ratified) is a benchmark for the advancement of equal status for women. So, too, the United Nations’ Convention on the Rights of the Child (CRC) (1989), the most comprehensive international document bearing on children, seems to reflect an advance in international human rights formulations. It seems to have generated “an unprecedented degree of formal commitment on the part of governments,” as evidenced by its quick and virtually universal ratification (with the notable exception of the United States, which has signed but not ratified the CRC) (Alston, Parker, and Seymour, 1992, pp. v–viii). With the CRC as a cornerstone, the UN continues to sponsor summits on children, to issue declarations, and create action plans to make “a world fit for children.” However, “despite the near universal embrace of standards for protecting children,” “more than half of the world’s children are suffering extreme deprivations from poverty, war and HIV/AIDS, conditions that are effectively denying children a childhood and holding back the development of nations” (UNICEF Press Release, 2004). Clearly, a gap remains between universal standards and the reality for many children. A recent UNICEF report (quoted above) on the state of children connected this gap to the gap between human rights ideals of gender equality and continuing forms of inequality, disempowerment, and discrimination women experience worldwide in concrete areas like the household, employment, politics, and government. Indeed, it reports gender equality as offering a “double dividend”: advancing the equal status of women in the household and other domains can benefit both women and children (UNICEF, 2006). The report finds that women and men have different priorities in household decision making, and women, often disadvantaged in the bargaining process, are more likely to use their influence and resources to meet the family’s needs (UNICEF). It praises the role of the CRC and CEDAW for improving the status of women and children, but calls for continuing efforts to achieve The Millennium Development goals of “a world fit for both women and children” (UNICEF). What might help realize this promise? Pointing to the paradox of impressive human rights declarations and, contrarily, gross violations, legal scholar John Witte, Jr. (2001) argues for the need to enlist the unique resources of religions to ground a culture of human rights. Although his specific focus concerns the human right to religious freedom, his point is extendable to human rights for the child  Information on these sessions and on the documents emanating from the May 2002 Special Session, A world fit for children (UNICEF, 2002b) and from the commemorative session (UNICEF, 2007).

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and the family. Is the lack of a rights culture the problem? If enlisting religion as a resource could close the gap between rhetorical declarations and children’s lives, then there may be a stumbling block. Human rights declarations, particularly concerning children, may threaten rather than reinforce religious conceptions of family, and of parental rights and responsibilities (Anderson, 1996). Thus, Christian ethics scholar Terence Anderson (1996) draws the conclusion with specific reference to Christian conceptions of family and generalizes his point: the human rights framework is inspired by liberal conceptions of the primacy of the individual, of choice, and of self-development. It clashes with the concept of organic communities with mutual obligations found in many religions and creates adversary relationships within the family. In addition, the CRC’s “sanction of a high degree of state authority over families” threatens the religious freedom of Christians and “those of other faiths who believe that to be a community transmitting a particular way of life is central to their calling” (Anderson, pp. 49–50). He contends the CRC, “taken as a whole, is not … the best instrument for developing public policy that would protect children” (Anderson, p. 52). A more polemical form of this critique of the CRC is expressed by various conservative religious organizations in the United States. They attack the CRC and CEDAW as a threat to parental, cultural, religious, and national sovereignty and as a dangerous denial of sex difference. Those polemics are the subject of this chapter. My epigraph from the recent conservative call to action, “The natural family: A manifesto” (Manifesto), indicates conservatives invoke the “natural family” as a rallying cry to form a “great civil alliance of religious orthodoxies, within nations and around the globe” to defend the family “from the common foe” (Carlson and Mero, 2005, p. 33). Threats to the natural family, I explain, include international human rights instruments and domestic family law and policy trends. Human rights instruments express stances about the relative positioning of child, family, and state, as well as about the place of gender equality. Are religious conceptions of child, family, and state congruent or conflicting with human rights conceptions? The same question may be asked about viewpoints on gender equality as it shapes family life. The answers vary significantly. Indeed, conservative religious groups perceive the UN and many NGOs as anti-family and anti-religion. Observers describe this as “the conservative and progressive divide” between religious groups at the UN (Knox, 2002). This chapter focuses on the normative vision of the natural family held by several conservative Christian organizations in the United States and how that vision shapes their critique of the human rights projects. An intriguing feature of this vision is how such groups use certain human rights declarations about the family to critique others. They invoke Article 16(3) of the United Nation’s Universal Declaration of Human Rights of 1948 (Declaration), which states that “the family is the natural and fundamental group unit of society and is entitled to protection by society and the State,” as a benchmark to critique the CRC and other human rights efforts as hostile to the natural family. Some US governmental officials, defending the United States’ continual failure to ratify the CRC, sound a similar

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What is Right for Children?

theme. The CRC’s project of children’s rights, however well intentioned, threatens the vital role of parents and thus, the family, which government should support and respect (Horn, 2004; Horn, n.d.; Sauerbrey, n.d.). Embracing the Declaration’s language on family, officials espouse a foreign policy goal to promote and protect “strong families,” to empower women and children despite the US failure to ratify CEDAW (Sauerbrey, 2007). The natural family, as envisioned by the groups this chapter examines, has theological significance. Marriage, the family’s foundation, entails a proper gender complementarity between husband and wife; father and mother. These conservative critics of the CRC and CEDAW warn that such instruments embrace gender equality and threaten this complementarity, undermining the family and the vocation of motherhood. Indeed, conservatives warn such instruments threaten cultural traditions in the United States about gender roles, and thus about national sovereignty. They identify the promotion of gender equality, whether by domestic governments or by international bureaucrats, as a radical feminist agenda threatening the family. This stance ignores and expressly rejects (at times) the emergence of gender equality as a basic political and constitutional value within family law and constitutional law. As one step in a comparative project, I assess how this vision of the natural family compares with the conception of child, family, and state and the international human rights project as articulated by the United States Conference of Catholic Bishops (Conference). The Conference is difficult to characterize in terms of the “conservative/progressive divide” at the UN (Knox, 2002) or in simple right/left terms. On the one hand, there is convergence with the conservative religious groups on some issues, including marriage, parental authority, contraception, and abortion, and on the idea that individual rights threaten the family and its rights. On the other hand, the Conference elaborates a “family perspective paradigm,” which calls for partnerships between families and government and with other institutions of civil society to help families meet their important responsibilities (Conference, 1998) rather than hearkening back, as the Manifesto does, to an earlier era of the self-sufficient family. Moreover, the Conference emphasizes social justice and public responsibility for the poor and vulnerable. This chapter first explicates the missions and normative visions of family elaborated by Concerned Women for America (CWA), the Heritage Foundation, the Family Research Council (FRC), the Howard Center, and its affiliated World Congress of Families (WCF). It draws on the way these groups present themselves on their websites and on the idea of the natural family in the Manifesto. Second, it examines these groups’ objections to the CRC and CEDAW, including how their normative vision of child, family, and state and of proper gender ordering shapes these objections and clashes with contemporary political and constitutional values of sex equality. Third, it offers a preliminary comparison of the viewpoints these groups have on the natural family and on the human rights project with those of the Conference It concludes with some reflections and questions.

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Conservative Religious Visions of the “Natural Family” Concerned Women for America CWA describes itself as “the nation’s largest public policy women’s organization with a rich 29-year history of helping our members across the country bring Biblical principles into all levels of public policy” (About CWA, n.d.). Core issues for CWA include the “Family,” the “Sanctity of Human Life,” “Education,” and “National Sovereignty” (Our core issues, n.d.). Concerns over family definition and national (and parental) sovereignty drive CWA’s opposition, at the UN, to the CRC and CEDAW (Lerner, 2002; Wright, 2007). CWA’s Vision: Biblical Design of the Family CWA’s website states, “CWA believes that marriage consists of one man and one woman … [and] seek[s] to protect and support the Biblical design of marriage and the gift of children” (Our core issues, n.d.). The link on CWA’s website for “Family” lists hundreds of writings adamantly opposing same-sex marriage and making clear that the “Biblical design” of the family centers on marriage between one man and one woman (Thomasson, 2001). Some writings discuss the theological meaning of marriage. For example, “A Christian Declaration on Marriage” (2000) (co-authored by the National Conference of Catholic Bishops, the National Council of Churches, and the National Association of Evangelicals) describes marriage as “God’s first institution,” “established … in the order of creation and redemption, for spouses to grow in love of one another and for the procreation, nurture, formation, and education of children” (para. 2). Society’s stake in the well-being of marriage, this Declaration on Marriage explains, is that “when a marriage is true to God’s loving design it brings spiritual, physical, emotional, economic, and social benefits” to the couple, the family, the Church, and the “wider culture” (para. 4). The Declaration on Marriage illustrates the centrality of the ideas of creation and redemption in Christian thought about marriage and family (Browning, 2003). CWA leaders also endorse the Manifesto, which defends the natural family as “part of the created order,” as a necessary, “unambiguous statement about the family” (Featured endorsements, 2005–2006, para. 7). In CWA’s vision of the natural family, marriage is protective of women and children. As is explored further in this chapter, a recurring theme in CWA’s writings and advocacy at the UN is the imperative need to protect traditional gender roles in marriage and to defend motherhood against pernicious radical feminist ideas (Crouse, 2004). The Heritage Foundation The Heritage Foundation is one of the most powerful social conservative thinktanks in the United States. Its goal is to conserve “traditional American values” (Heritage Foundation, n.d.a). It does not explicitly identify its mission as promoting Biblical values, but its explication of such traditional values and ideas reveals

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What is Right for Children?

expressly religious views about child, family, and state and the respective roles and responsibilities of family, religion, and state. The Two Pillars of Family and Religion The Heritage Foundation describes marriage as “a fundamental institution, deeply rooted in all societies, which has been tested and reaffirmed over thousands of years” (Heritage Foundation: n.d.b). Heritage Foundation author Patrick Fagan explains marriage by reference to the Biblical idea that “man is made in the image and likeness of God, whose nature is to belong.” He asserts the religious importance that belonging plays in marriage and parenthood, declaring that persons come closest to divinity through such belonging. He contrasts this ideal with America’s “culture of rejection,” manifest in family fragmentation, abortion, the disinterest young women and men have in marriage, and “gulag prisons” filled with fatherless young men. He has praised the Manifesto for calling to rebuild structures that allow us “to belong to each other again,” so that when we “face God” at the end of our lives we can place before Him our efforts to belong. Fagan (1996) stresses the religious importance of belonging by explaining why married family life and religious practice are two vital pillars of society. He contends, “the core of the religious commitment is an intention to have a positive relationship with another Being, a transcendent … Being,” and theorizes that religion’s positive effects emanate from its contribution to persons forming “positive reciprocal relationships” with others in families, marriages, and elsewhere in society (p. 23). Fagan elaborates, “Religion performs the foundational work that ensures the success of secular society’s other four basic institutions: family, school, market-place, and government” (p. 27). He also argues, “many of the goals of social policy and social work can be attained, indirectly and powerfully, through the practice of religion” (p. 28). This social health argument bears obvious similarities to the social health arguments the marriage movement makes. Some governmental officials describe promoting “healthy marriage” as necessary to nourish healthy children, foster adult well-being, and reduce social pathology. (McClain, 2006, pp. 117–54). Fagan’s essay anticipates the current political interest in “faith-based initiatives” to enlist religious organizations to address social problems. He sounds themes familiar in calls to revive civil society: that the Founding Fathers viewed religion and family as “seedbeds of civic virtue” (McClain and Fleming, 2000; McClain, 2006, pp. 50–54). He asserts that the Founding Fathers did not intend that federal government establish a state religion, but they also did not intend to banish religion from the public square or “from the operations of the state” (Fagan, 1996, p. 24). In developing the salutary relationship between religious practice and family life, the essay focuses on consequences like lower rates of divorce and cohabitation and higher levels of marital happiness (including sexual satisfaction). Fagan asserts that “the religious practices of parents … powerfully   All the quotations in this paragraph are from the remarks by Patrick Fagan (n.d.), made at the press conference for “The natural family: A manifesto.”

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influence the behavior of children,” for example, reducing the likelihood of nonmarital pregnancies and births, crime and delinquency (pp. 11–13). The Family Research Council The FRC is a conservative religious organization. Its motto is to “Defend Family, Faith, and Freedom,” and like CWA, its mission statement is to bring “the JudeoChristian worldview” to re-shape public policy (Family Research Council, n.d.). Among FRC’s “Core Principles,” three concern the place of family: (1) “Life and love are inextricably linked and find their natural expression in the institutions of marriage and the family;” (2) “Government has a duty to protect and promote marriage and family in law and public policy;” and (3) “American democracy depends upon a vibrant civil society composed of families, churches, schools, and voluntary associations” (Family Research Council). The FRC’s website lists many papers by Dr Allan C. Carlson, Distinguished Fellow in Family Policy Studies at FRC and co-author of the Manifesto. The prominent place that Carlson’s listed work has on the FRC website suggests the influence of his view of the natural family. Religion, Fecundity, and Marriage Carlson contends that procreation and fecundity are vital aspects of marriage. The “unwritten sexual constitution of our civilization,” whose genesis in the sexual order was adopted early in Christianity, has been the bond between marriage and procreation (Carlson, 2004). Earlier laws prohibiting contraceptives preserved that constitution, but the notion of marital privacy in Griswold v. Connecticut (1965) was a “direct assault,” emptying marriage of meaning and denying natural law. In the wake of Eisenstadt v. Baird (1972) and Lawrence v. Texas (2003), the Court found “a right to uninhibited sexual expression” (Carlson, p. 7). These opinions sever procreation from marriage and/or glorify sexual experience apart from marriage; but because recriminalizing contraception is not a viable position, Carlson urges political strategies to oppose same-sex marriage and public policies to favor “child-rich homes” (p. 9). Carlson argues that the declining influence of religion in Europe is responsible for lower fertility rates and the diminished place of children (Carlson, n.d.a). A related culprit is the embrace of the “Swedish model” for society. This model, he contends, welcomes “the disappearance of motherhood as a vocation” and demands full gender equality, the priority of work over family, day care, and the like. Seemingly family-friendly policies like “generous day care, paid parental leave, child allowances and other welfare benefits” reflect “post-family, anti-child values” by degrading stay-at-home motherhood and replacing parental responsibility with state responsibility for children (Carlson, p. 8). Thus, Carlson urges that, in foreign policy, the United States, which has enjoyed a sustained increase in fecundity in relation to the greater religiosity of Americans (as compared to Europeans), should pursue an alliance with nations with strong “family morality systems” and, in domestic matters, adopt policies that stress marriage’s procreative purposes and view “large families, created responsibly through marriage,” as “special gifts to their societies deserving affirmation and encouragement” (p. 10).

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What is Right for Children?

The Family as a Home Economy Carlson’s writings propose the idea of family as a home economy or a source of productive activity. One source of family decline is the shift from the “productive home” to the “companionate home,” and he proposes to bring parents back into the home by home-schooling children (Carlson, 2003). Replacing common public schools with home education would be a “homecoming,” recovering a “vital family function” lost to “the aggressive state” and returning families to “the primal or natural social units” (Carlson, n.d.b, p. 8). Restoring motherhood as an honorable vocation is prominently featured in this scheme. Stay-at-home mothers in suburbia, Carlson (2003) writes, were the “linchpin” of the suburban way of life (p. 7). Anti-discrimination laws of the 1960s and feminism, according to Carlson, eroded this way of life (Carlson, n.d.b). The Howard Center and the World Congress of Families Carlson is President of the Howard Center, whose motto is “For Family, Religion, and Society” (“Howard Center FAQ,” n.d.). The Howard Center initiated the World Congress of Families (WCF). WCF affirms that “the natural family is established by the Creator, … is fundamental to the good of the society,” is “inscribed in human nature,” and is “centered on the union of a man and a woman in the lifelong covenant of marriage” (World Congress of Families III, 2004, p. 1). WCF’s aim is to unite people who will “work together to strengthen the natural family as the fundamental unit of society” (p. 1) and to address threats to the family. The Geneva Declaration (1999) rose out of the World Congress of Families II. It identifies “devaluation of parenting, declining family time, morally relativistic public education, confusions over sexual identity, promiscuity, sexually transmitted diseases, abortion, poverty, human trafficking, violence against women, child abuse, isolation, excessive taxation and below-replacement fertility” as dire threats to the family (p. 1). The Mexico City Declaration (2004), emanating from the World Congress of Families III, enumerates “challenges to the family’s very legitimacy as an institution” rising from “extreme individualism, easy divorce, radical homosexual activism, irresponsible sexual behavior, and the reinterpretation and misapplication of human rights” (p. 1). The Warsaw Declaration (2007) from the World Congress of Families IV contrasts the falling population rates in Europe as a “demographic winter” with “springtime”—and “rebirth”—of civilization when families are “faithful to their conjugal and parental vocations” (p. 1). It also embraces the papal document, the Charter of the Rights of the Family (discussed below). Speakers at WCF’s events echo these declarations. They criticize human rights instruments like the CRC and CEDAW as threats to the family (Balmforth, 1999; Saunders, n.d.).  Nonetheless, at the most recent World Congress of Families meeting, a gathering of “parliamentarians” issued a declaration calling upon their governments to implement fully a number of human rights instruments bearing on the family, including CRC (Declaration, 2007).

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“The natural family: A manifesto” The conception of the natural family elaborated by Carlson and the conservative religious groups discussed in this chapter finds vivid expression in “The natural family: A manifesto,” which anticipates “the prospect of a great civil alliance of religious orthodoxies, within nations and around the globe … to defend our family systems from the common foe” (Carlson and Mero, 2005, p. 33). The Manifesto has been endorsed by a number of conservative leaders and groups and one US Congressman since its release. It offers a theological and often apocalyptic political statement about the natural family. The Manifesto’s authors state, “[r]egarding the natural family, we deny any such thing as social evolution. The changes we see are either decay away from or renewal toward the one true family model” (p. 29). The Manifesto continues, “we are all called to be the … moral soldiers, in this drive to realize the life ordained for us by our Creator,” and promises “the time is close when the persecution of the natural family, when the war against children, when the assault on human nature shall end” (p. 35). However, it warns that the Manifesto’s “true allies” are those who embrace “the whole case for the natural family,” not just parts (“One cannot affirm the natural family while also defending … infant day care”) (p. 32). Family sovereignty is at the core of the Manifesto’s political vision. Thus, the Manifesto takes a dim view of state invasions of the home, under the guise of protecting children from parents, as well as of children “turned over to state-funded day care” and to public schools that mock chastity and fidelity and marriage (pp. 7, 11–12). What of state intervention to address family violence? The Manifesto acknowledges that “all families fall short of perfection and a few families fail,” but asserts that research makes clear that women and children are safest within the marital family: “The natural family is the answer to abuse” (p. 28). Households “framed by marriage,” in this political vision, are also “the primal economic unit” (p. 13). Carlson envisions home economy, a fertile, productive, intergenerational household (conjugal, but not nuclear), which is evident in the Manifesto as it looks forward to a world “restored in line with the intent of its Creator” (pp. 13–14). The Creator’s intended design for the family entails the gendered division of household labor. Indeed, the Manifesto identifies feminism as a force against the natural family and counters with an affirmation that the sexes are complementary, equal in dignity and innate human rights, but different in function. The Manifesto says in marriage, these “profound biological and psychological differences” become a source of strength and wholeness (p. 17). It follows that men and women should be allowed “to live in harmony with their true natures” and not be subject to “the aggressive state promotion of androgyny” (p. 21). The Manifesto affirms “women’s rights,” yet takes the familiar conservative

 These endorsements appear at http://www.familymanifesto.net. Carlson and Mero have expanded the Manifesto into a book (Carlson and Mero, 2007).

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rhetorical attack upon feminism as a form of totalitarian social engineering to a startling—and frankly, offensive—level: The goal of androgyny, the effort to eliminate real differences between women and men, does every bit as much violence to human nature and human rights as the old efforts by the communists to create “Soviet Man” and by the Nazis to create “Aryan Man.” (pp. 25–6)

This categorical attack on governmental efforts to redress sex discrimination and foster sex equality illustrates the conservative conviction that fostering equality within families is harmful. The vision the Manifesto sets forth is the primacy of the natural family and of the complementarity of male and female within the marital family. The state serves—and should not usurp the authority or functions of—the family, the primary locus of sovereignty. The institutional place that organized religion holds in this new society is curiously absent. Perhaps this is because the home itself, with home schooling and the return of mothers and fathers to the home, will be the first, most vital site of religious life. This zealous concern over guarding the prerogatives of the natural, gender-complementary family against usurpation also drives conservative religious groups’ opposition to the CRC and CEDAW. Conservative Religious Opposition to UN Human Rights Instruments: Defending the “Natural Family” Against “Anti-Family” Agendas The conservative religious groups discussed above have certain recurring themes in their opposition to the CRC and CEDAW. First, such groups use the Declaration as a benchmark to critique the CRC and CEDAW. Measured against the former, the latter reflect an “anti-family” agenda that threatens family, religious, and national sovereignty. A second theme is that the CRC, which gives children rights, usurps parental authority by empowering children to challenge their parents and authorizing governmental officials and UN bureaucrats to police parents. Third, the CRC and CEDAW attack motherhood as a vocation and promote a gender equality that is hostile to the family. Fourth, in attacking motherhood and denying sex differences, such treaties attack national and cultural sovereignty and impose a radical feminist form of social engineering that would never succeed if forced to go through the democratic process. Thus, they resist the UNICEF report’s linkage of CRC and CEDAW and characterize its idea of gender equality as a “double dividend” as “gender equality gobbledygook” that “merely re-packages the feminist agenda” (Crouse, 2007, p. 1).

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The Declaration Versus the CRC and CEDAW: Good Intentions Gone Awry Conservative religious opponents of the CRC and CEDAW distinguish between the good intentions and sound principles of the Declaration and the dangerous social engineering manifest in later human rights instruments, such as the CRC and CEDAW (Fagan, 2001). They favorably invoke Article 16(3) of the Declaration: “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State” (Fagan, p. 1). They approvingly refer to Article 16(1), which affirms “the right to marry and to found a family,” and they appeal to Article 25(2)’s statement, “motherhood and childhood are entitled to special care and assistance,” and the recognition in Article 26(3) of the right of parents to “choose the kind of education that shall be given to their children” (Fagan, pp. 4, 7). The Manifesto decries attacks on the Declaration, “a document which proclaims fundamental rights to family autonomy, to a family wage for fathers, and to the special protection of mothers” (Carlson and Mero, 2005, p. 26). The Manifesto infers that the family wage is for fathers because the Declaration uses the pronoun “his” in referring to a worker’s right in Article 23(3) to “just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity” and, in Article 25, that “everyone has the right to a standard of living adequate for the health and well-being of himself and of his family …” Fagan (2001) measures the UN’s “new countercultural agenda” against the Declaration’s pronouncements about protecting the family. In his view, the UN’s long-standing respect for national sovereignty, evident in the inclusion in treaties and documents of “language affirming a nation’s right to determine its cultural norms and practices,” has given way to a “countercultural agenda espoused in UN committee reports and documents,” particularly if the CRC and CEDAW are implemented (Fagan, p. 1). This agenda attacks “the natural rights of the family,” along with each nation’s sovereignty to determine “domestic policies on parental rights and the free expression of religious values and beliefs” (Fagan, p. 2). The CRC and CEDAW threaten the trio of “family, religious freedom, and national sovereignty” (Fagan, p. 1). It should be noted that the CRC echoes the Declaration, affirming the family as “the fundamental group of society,” and stating that the family “should be afforded the necessary protection and assistance” so that it can “fully assume its responsibilities” as the “natural environment for the growth and well-being of all its members and particularly children” (Preamble). How then does it go astray and, in so doing, threaten the natural family? Children’s Rights Usurp Parental Authority A common objection to the CRC is that, despite its rhetoric about protecting the family, it actually usurps parental authority by giving children rights and enlisting the state—and UN bureaucrats—as children’s protectors against parents

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(Marshall and Smith, 2006). The CRC, for example, states “the best interests of the child” shall be a “primary consideration” in “all actions concerning children” (Article 3). A CWA critique charges that this would “make Congress the national guardians of children, charged with seeking ‘the best interests of the child’ … and answerable to the United Nations” (UN Rights of the Child, 1997, para. 5). But “the government’s definition of a child’s best interests is often very different from a parent’s definition” (para. 5). Spanking would likely be labeled as a form of child abuse, which would have “severe legal implications for many American families” (para. 5). The FRC argues that the CRC has languished in Congress partially because of the fact that it potentially “would outlaw spanking.” It has urged its members to pray that “no spanking” laws proposed in state legislatures be defeated and parental authority upheld (Prayer targets, 2007). Another ground for criticism is the CRC’s various references to governments’ duties to respect parents’ rights as well as duties to direct children exercising their own rights “in a manner consistent with the evolving capacities of the child” (Articles 5, 14). A CWA critique charges that this wrongly envisions children as “autonomous agents who are capable, in all areas, of making adult decisions and dealing with adult situations” (UN Rights of the Child, 1997, para. 6). This perception stands “in stark contrast to the traditional concept, upheld in America, that children are ‘minors’ in need of parental protection” (para. 6). This “radical legal doctrine” gives children the same legal rights as adults and, in effect, lets government assume “the primary role of rearing your children” (paras 4, 7). The Attack on Motherhood and Sex Difference A third objection directed at the CRC, and even more frequently directed at CEDAW, is that they reflect an “anti-family” agenda that denigrates motherhood as a noble vocation and contradicts the provision in the Declaration that “motherhood and childhood are entitled to special care and assistance” (Article 25(2)). Such a provision, Fagan (2001) contends, recognizes that the family plays a central role that the state cannot replace and implies that society “should enable mothers to nurture their children and not push policies that would force mothers to forfeit precious time with their young children to go to work” (p. 4). How troubling then, that UN committees “disparage stay-at-home mothers and urge nations to make publicly funded day care widely available, even for newborns,” so mothers can work outside of the home (Fagan, pp. 3–4). A related critique is that CEDAW and the CRC (by directing states to educate the child concerning the “equality of sexes” in Article 29) require nations to indoctrinate children in gender neutrality. According to critics, this doctrine would prohibit children and teachers “from recognizing there are fundamental differences between boys and girls and that some roles based purely on sex, such as motherhood, are noble” (Wright, 2007, § 1). Similarly, CWA writers charge that the CRC’s goal of eliminating forms of discrimination against girls and improving

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their status (for example, by educating parents to treat girls and boys equally within families) wrongly dictates “how a family runs” (Hurlburt, 2000, p.2). The Attack on Motherhood as an Attack on Cultural and National Sovereignty The attack on motherhood, conservative critics argue, is also an attack on culture and national sovereignty. They critique provisions in CEDAW that forbid discrimination on the basis of sex; its assertion in the Preamble that “a change in the traditional role of men as well as the role of women in society and in the family is needed to achieve full equality between men and women”; and its call in Article 5(a) for countries “to modify social and cultural patterns of conduct of men and women” to eliminate prejudices and practices “based on … stereotyped roles for men and women” (Wright, 2007, § 1). UN reports, Fagan (2001) contends, “instruct nations to eliminate, through legislation, cultural norms that support the role of the mother at home” (pp. 7–8). This countercultural agenda, he charges, includes changing cultures by “changing sexual norms” through promoting sex outside of marriage, abortion, and legalized prostitution, and “redefining gender” by “reconstructing social norms” (p. 17). As evidence that UN officials charged with implementing CEDAW view the maternal role as “demeaning,” he cites a reference in a CEDAW report expressing “concern” that the Irish Constitution continued to reflect a “stereotypical view” of the role of women: the constitutional text refers to a woman’s “life within the home” as supporting the state and declares that the state shall seek to ensure “mothers shall not be obliged by economic necessity to engage in labor to the neglect of their duties in the home” (Fagan, p. 8). To ratify and implement the CRC and CEDAW, in this view, would allow “anti-family” NGOs to force on particular nations a radical feminist form of social engineering—a cultural colonialism—that would never succeed if forced to go through the normal democratic process. Speakers at WCF gatherings decry the overweening influence, within the UN system, of “radical feminists” and “homosexual rights activists” who would not be able to prevail at home or internationally in a fair and open process (Balmforth, 1999). This “anti-family” agenda includes moving away from speaking about marriage and “the family” to speaking of “families,” opening the door to legitimizing non-marital families and homosexual relationships. Similarly, CWA author Janice Crouse (2004) contends that the radical agenda includes “children’s autonomy from their parents” and “leftist ideas about equality and sexual freedom;” an agenda that clashes with United States “culture” and threatens the family (p. 2). CEDAW, she alleges, is a form of “neo-Marxist contemporary colonialism.” It dumps feminist ideologies on the Third World and allows unelected UN bureaucratic elites to intrude “into our lives … with a radical vision incompatible with the values and wishes of the vast majority of citizens” (Crouse, p. 2). Contrarily, CWA supports efforts at the UN to end sex trafficking (and has received federal money for its own “faith-based” work on this issue); yet, it contrasts this worthy focus on protecting vulnerable women

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and children with the UN’s usual “utopian spin and radical drivel” (Crouse and Wright, 2004, p. 2). CWA expressed dismay that UNICEF’s Executive Director, Ann M. Veneman, whose appointment by President George W. Bush was “supposed to signal a retreat from the feminists’ domination of the UNICEF agenda,” instead produced a report so focused on gender equality (Crouse, 2007, pp. 1–2). Point for point, CWA scorned the report’s identification of “pernicious” forms of gender inequality as merely “gender gobbledygook.” Finding it unbelievable that an entire section of the report was devoted to “equality in the household,” it alleged that the report finds motherhood itself “pernicious” (Crouse, p. 1). The Conservative Rejection of Sex Equality as a Political and Constitutional Value A basic tenet in the conservative attack against CRC and CEDAW is that convictions about gender difference are rooted in cultural and religious traditions, and the human rights instruments threaten to trample such traditions in the name of gender equality. In addition, the United States’ failure to ratify CEDAW is often justified in terms of arguments about US constitutionalism and federalism (Powell, 2005). But these warnings of cultural colonialism, sounded by conservative religious groups (as well as by some conservative legislators), reveal that another objection is culture: CEDAW will interfere with the United States’ right to cultural selfdetermination (Powell). A theme that unites conservative religious groups’ vision of the natural family and their opposition to the UN’s supposed “anti-family” agenda is the conviction that governments and international organizations’ efforts to promote gender equality and to eliminate stereotypes are, in actuality, dangerous forms of social engineering that would deny and eliminate differences between women and men, denigrate motherhood, and attack the gendered division of labor between women and men in the family and society. However, such conservative groups are not wholly against governmental regulation. Rather, they view efforts to shore up the natural family and gender complementarity and to steer males and females into the vocations of fatherhood and motherhood as proper because they are in line with human nature and the sexes’ essential identities. By contrast, legislation premised on equal capacity and opportunity distorts and confuses human nature. These arguments about US culture seem to overlook that sex equality is a feature not only of US family law but also of constitutional law (McClain, 2006, pp. 50–84; see also Case, 2002). For instance, Fagan’s (2001) critique of the UN’s agenda of combating stereotypes is in tension with recent decisions by the US Supreme Court (beginning in the 1970s), which held that the Equal Protection clause prohibits governmental reliance upon outmoded, stereotypical assumptions concerning women’s and men’s capacities and their rights and responsibilities in the home and society. In such cases, the Court took a more skeptical look at

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claims about gender difference, observing that states should no longer legislate on the assumption that women are destined only for the home and men for the world of work and ideas. Rather than view this skepticism about gender-based classifications concerning family roles as part of US constitutional culture, the Heritage Foundation sees it as simply the “feminist agenda in the United States,” paralleled by CEDAW’s efforts to use a bar on sex-based discrimination to bring about social transformation (Marshall and Smith, 2006, p. 10). Government, I have argued elsewhere, may and should promote sex equality as an important public and constitutional value (McClain, 2001, 2006). By contrast, conservative groups who argue “complementary but equal” and urge that government prepare males and females for their proper roles as fathers and mothers apparently deny the emergence of sex equality and equal rights and responsibilities as a feature of US political “culture.” As Powell (2005) observes, “cultural” objections to CEDAW or other instruments asserting women’s equality often treat culture as static and monolithic rather than subject to contestation, change, and internal dissent. When conservatives indict UN concern over countries’ laws reflecting stereotypical views about women’s role in the home and as mothers, they are implicitly attacking US constitutional law, as well as a substantial transformation in family law from a hierarchical model of marriage to a model of equal partnership. Federal legislation aiming to promote the equal employment opportunities of men and women is also incompatible with this vision, as is evident from Carlson’s attacks on Title VII for destroying the “family wage” system of male breadwinner/female homemaker (2003, 2006). While citizens may hold diverse views about gender and gender roles within the family and society, the political and constitutional value of sex equality bars federal and state governments from requiring or legislating based on the gendered division of labor once legally sanctioned in “traditional” marriage. Thus, it would offend sex equality constitutional requirements for government to undertake the gender education the Manifesto urges. Children’s Rights, “Familism,” and Subsidiarity What of the objections, by conservative opponents of CRC and CEDAW, rooted in parental authority and national sovereignty? To some extent, these resonate with objections not explicitly grounded in religion. In US constitutional jurisprudence, parents have primary authority and responsibility for children, but the government also has authority to foster their healthy development and to protect children’s rights. When this triangle of child, family (parents), and state confronts the new angle of UN responsibility for monitoring and encouraging compliance, questions  A line of US Supreme Court decisions have prohibited reliance on stereotypical assumptions concerning women’s and men’s capacities (see Orr v. Orr, 1979; Stanton v. Stanton, 1975).

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What is Right for Children?

of parental and national sovereignty and jurisdiction multiply (Stewart, 1998). Some critics contend that if the US ratified the CRC, it would violate parental liberty: charging states with protecting human rights and using such ambiguous terms as “best interests of the child,” or a child’s “evolving capacities,” opens the door both to empowering children to reject the exercise of parental authority and to injecting the state’s view of the child’s best interest into the family (Stewart, pp. 171–5). Communitarian scholars who criticize individual rights as a focus in US family law also criticize the CRC for its rights-based focus. The problem is “abandoning children to their autonomy” (Hafen and Hafen, 1996). The CRC’s recognition of positive rights also engenders criticism, given the US constitutional tradition of negative liberties (Stewart, 1998). Religiously based objections share these concerns about sovereignty and disaggregating the family into individuals. But they also focus on the special place of the family as a vital site of cultural and religious transmission and on the dangers of paternalistic state intervention, especially when bureaucrats have a different conception of child well-being than religious parents. In a similar vein, theologian Don Browning (2003) identifies the threat posed to the family by the rise of “bureaucratic rationality,” or the state taking on more and more functions that were once fulfilled by families and other institutions of civil society (pp. 218–19). This development conflicts with the Roman Catholic principle of “subsidiarity,” under which parents naturally take an interest in their children and should have primary responsibility for them. Yet, in contrast to Anderson (1996) and conservative religious critics, Browning detects “subsidiarity” at work in the CRC (pp. 218–19). For example, conservative critics attack Article 5’s reference to children’s exercise of rights, consistent with their evolving capacities; however, Browning points out that this Article recognizes the priority of parental and family rights with respect to rearing and socializing children and guiding their moral development, and it directs government to respect and facilitate the responsibilities, rights, and duties of parents as they help children exercise their rights. The conservative religious groups’ view of the natural family seems to insist more zealously on the family’s primacy. This is evident because they advocate stayat-home motherhood, a home-based economy, home schooling, and they indict paid child care and public schools. Their emphatic opposition to human rights instruments rests in part on “familism,” the conviction that “throughout human history, the family has been the fundamental component of a civilized society” and that “the traditional family is a design ordained by God” (Christiano, 2000, p. 46). Familism, some scholars argue, animates the so-called “new Christian right” (Christiano, p. 46). The historical roots of this familism in America are evident when religious metaphors describe the home as a church, a little congregation, a temple (Christiano, pp. 45–6). To understand better how this “familism” compares with other religious conceptions of family and subsidiarity and the respective positioning of child, family, and state, I now consider certain stances taken by the Conference. This is a preliminary but illuminating comparison.

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The United States Conference of Catholic Bishops Conservative religious organizations and the United States Conference of Catholic Bishops (Conference) agree on the primacy of the family—based on marriage as a natural society, part of the divinely created order and prior to the state (A Christian Declaration on Marriage, 2000). Both affirm the complementarity of male and female as fundamental to marriage and oppose same-sex marriage because it is contrary to the nature and purposes of marriage (Conference, 1996). Both articulate that the family has unique and irreplaceable functions, and both, by embracing some form of the principle of subsidiarity, argue that the shift of certain functions once carried out exclusively by families to other social institutions and by government is cause for concern. Additionally, some writings on the Conference website strikingly parallel conservative religious groups’ objections to the UN’s human rights project as reflected in the CRC and CEDAW. But Catholic critics, to a greater degree than other conservative religious opponents, advocate critical engagement with, rather than rejection of, this project. Notable divergences between the Conference and the conservative groups with respect to the articulation of family’s place in society include: (1) the Conference’s more realistic, supportive approach toward family diversity; (2) its lack of nostalgia for the era of the agricultural, self-sufficient family and its call for the contemporary family, which shares many of its responsibilities with other institutions and government, to develop partnerships with such institutions; (3) a somewhat more positive stance toward the changing roles of women in society; and (4) a greater emphasis upon the positive rights of families and the correlative responsibilities of society to provide the supports needed for families to carry out their responsibilities. To sketch the normative vision of family and then the stance on the CRC and CEDAW, I draw on three documents posted or referred to on the Conference’s website: (1) “Family and society: International organizations and the defense of the family” (Glendon, 1997); (2) the Holy See’s “Charter of the rights of the family” (1983); and (3) A family perspective in church and society (National Conference of Catholic Bishops’ Ad Hoc Committee on Marriage and Family Life, 1998). Glendon’s Defense of the Family Against “Anti-Family” Forces at the United Nations What stance does the Conference take on international human rights instruments? One clue appears in an article by Mary Ann Glendon (1997), who has represented the Vatican in various UN human rights gatherings. Glendon raises a critique parallel to the four objections that conservative religious organizations have  The United States Conference of Catholic Bishops was formed in 2001 by the merger of the National Conference of Catholic Bishops and the United States Catholic Conference.

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raised. First, as a benchmark to critique the CRC and recent UN human rights efforts, Glendon begins with the Declaration’s “pervasiveness” of references to the family as society’s “fundamental unit,” entitled to protection and to rights relating to family life (para. 4). The Declaration, she suggests, reflects “dignitarian” or “personalist” assumptions about “man and society” (para. 5). It treats the “bearer of individual rights not as a self-sufficient monad, but as a person situated in community and relationship” (para. 5). At the outset Glendon contends, “there is no evidence that the Declaration’s drafters expected the United Nations itself to play much of a role in protecting the family” (para. 2). By contrast, the UN and its various agencies are now “sprawling bureaucracies symbiotically entwined with large international lobbying associations,” but it is not obvious how such institutions can assist families (para. 2). The bigger problem, Glendon contends, is a “surprising trend” of a “many-sided assault on several fundamental principles” enshrined in the Declaration, including recognition and protection of the family (para. 3). The decades since 1948 have brought a “steady rise in diverse movements that sought to treat the family (and religion) as obstacles to human rights, rather than as subjects of human rights protection,” which lead to the present crisis that “family-friendly principles of 1948” are at risk of “being suppressed or distorted beyond recognition” (para. 23). A second parallel to conservative religious critiques is Glendon’s argument that children’s rights impair family rights. She identifies “the subtle erosion of the moral authority of parents” as problematic in the CRC and the 1995 Guidelines issued in connection with the International Year of the Family (para. 10). Together these documents look like “a deliberate effort to set individual rights in opposition to family relationships, to insert the state between children and parents, and to undermine the status of the family as a subject of human rights protection” (para. 10). Although the 1995 Guidelines referred back to language about the family as the basic unit of society, they also state that “the power of the family is and should be limited by the basic human rights of its individual members. The protection and assistance accorded to the family must safeguard these rights” (para. 9). Interestingly, this vision of family rights—rather than individual or children rights—is consistent with the “Charter of the rights of the family” (Holy See, 1983). A third parallel is Glendon’s defense of motherhood and her charge that feminists who failed at home are cultural colonialists. Glendon directs her ire in particular towards the draft documents emanating from Beijing’s 1995 UN Women’s Conference and the scant mention of “marriage, motherhood, or family life” except as “sources of oppression or obstacles to women’s progress” (para. 11). She argues that the UN Committee on the Status of Women has become “the tool of special interest groups promoting a brand of feminism … that had alienated the great majority of women through its inattention to the real life problems of work and family, its hostility to men and its disgraceful indifference to the welfare of children” (para. 11). Efforts made by a coalition led by the European Union to “deconstruct” the family and “remove every positive reference to marriage, motherhood, family, parental rights and religion,” the very sort of language that was “central to most

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of their own national constitutions” (para. 11), were also objectionable. Glendon views these groups as a new, “anti-family” class that seeks to preserve privilege, power, and to exert social control (paras 14–15). The portrait Glendon paints is of international “anti-family initiatives” that lead to an “iron triangle of exclusion” in the home countries of backers of this agenda: “excluding new life through abortion and sterilization … barring the door against the stranger through restrictive immigration policies; and … turning their backs on the poor through cutbacks in family-assistance programs” (para. 16). She further indicts this elite as seeing in the children of the poor “only a menace to the environment, a portent of social unrest and a threat to their own level of consumption” (para. 16). Glendon describes this new, “anti-family” class as a “bureaucratic-managerialtherapeutic class animated by little more than the desire to consolidate the unprecedented prosperity” it attained in the late twentieth century; as “the mobile, semi-educated, knowledge workers that populate every nation’s governmental agencies, corporations, universities, professions, mass media, and social service agencies” (paras 18–19). Rather than be in solidarity with the poor in their own countries, they have more in common with their cohorts in other countries. They “flock” to international organizations for favorable rulings, shunning the “ordinary political processes” of their home countries, which would “expose their agenda to the judgment of their fellow citizens” (para. 21). Here, the parallel to the charges of cultural colonialism and threats to national sovereignty made by CWA and the Heritage Foundation is striking. Glendon does not, however, counsel complete rejection of the CRC or the contemporary human rights project. Catholic Christianity calls for action in the world, she affirms, and the church has engaged the UN because of the good it has accomplished despite its flaws. The Holy See, unlike the US, has ratified the CRC (OHCHR, 2006), and the National Conference of Catholic Bishops (NCCB) has favorably referred to this human rights instrument. Glendon concludes her essay by echoing John Paul II’s call to families themselves to become “‘protagonists’ of what is known as ‘family politics’ and assume responsibility for transforming society” (para. 32), offering several admonitions as to how to do so, most of which involve the reassertion of family (and national) sovereignty with respect to children (paras 35–8). Charter of the Rights of the Family The “Charter of the rights of the family” (Charter), presented by the Holy See in 1983, predates by several years the UN CRC. It resembles the Declaration and other human rights instruments by referring to the family as “a natural and universal society,” possessing rights, and warranting governmental support (Charter, para. 2). Addressed principally to governments, but also to intergovernmental international organizations, the Charter describes itself as a “prophetic call in favour of the family institution, which must be respected and defended against all usurpation” (para. 4). But it is also directed at families in order to reinforce their

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“awareness of the irreplaceable role and position of the family,” to inspire them to unite “in the defence and promotion of their rights,” and encouraging them to “fulfill their duties” in a way that will make the family’s role “more clearly appreciated and recognized” (para. 9). Like the Manifesto, the Charter refers to the family as a “natural society” and “prior to the state” (Preamble (D)). Family is defined by “marriage, that intimate union of life in complementarity between a man and a woman,” freely contracted, indissoluble, and “open to the transmission of life” (Preamble (B)). Marriage is the “exclusive” natural institution to which transmitting life is entrusted, and it is also an intergenerational place, in which people come together to “harmonize the rights of individuals with other demands of social life” (Preamble (F)). As noted above, WCF endorses the Charter as expounding “the Truth about the family” (WCF IV, 2007, p. 1). What are the family’s rights in this document? The number of positive rights or preconditions for family life is noteworthy. Article 1 declares persons’ “right to the free choice of their state of life and thus to marry and establish a family or to remain single,” and includes the affirmative right to marry and have a family. Article 3 declares an “inalienable right to found a family and to decide on the spacing of births and the number of children to be born” (excluding “recourse to contraception, sterilization, and abortion”). Positive rights are the family’s “right to assistance by society in the bearing and rearing of children,” including the right of married couples with a large family to “adequate aid” and freedom from “discrimination” (Article 3). In comparison with the CRC, the Charter recognizes fewer rights for children. The family is the rights-bearing unit, and sometimes adult members of families hold rights as parents. Article 5 of the Charter affirms parents as the “first and foremost educators of their children.” It declares parental rights “to educate their children in conformity with their moral and religious convictions, taking into account the cultural traditions of the family which favor the good and the dignity of the child” (Article 5(a)). Positive rights include “necessary aid and assistance” to perform their educational role properly, including “public subsidies” for school choice (Article 5(a)–(b)). The Charter’s emphatic message of public responsibility appears in its declaration of a right families have “to be able to rely on an adequate family policy” (Article 9) and of a right to “a social and economic order in which the organization of work permits the members to live together, and does not hinder the unity, well-being, health, and stability of the family” (Article 10). Article 9 further states that families have “a right to economic conditions which assure them a standard of living appropriate to their dignity and full development” and a “right to measures in the social domain which take into account their needs.” The needs mentioned include those arising from contingencies, such as the premature death of a parent, abandonment by a spouse, accident, sickness, unemployment, as well as what Martha Fineman has referred to as “inevitable dependencies” (Fineman, 2004b)—“whenever the family has to bear extra burdens on behalf of its members for reasons of old age, physical or mental handicaps or the education of children”

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(Article 9(b)). (In contrast, the Heritage Foundation criticizes “social rights” of this sort (Marshall and Smith, 2006)). Article 10 recognizes a family’s right to an organization of work that fosters family unity and well-being. It refers to “remuneration for work” sufficient to maintain a family with dignity, through a “family wage, or through social measures such as family allowances or remuneration of the work in the home of one of the parents.” The Charter states that remuneration “should be such that mothers will not be obligated to work outside the home to the detriment of family life and especially of the education of the children” (Article 10(a)). Moreover, “the work of the mother in the home must be recognized and respected because of its value for the family and the society” (Article 10(b)). The Charter’s affirmation of the mother’s special role resembles provisions in the Declaration, often invoked by conservative religious opponents to critique more contemporary UN efforts to support women’s employment. The Charter also affirms a family’s right “to decent housing, fitting for family life and commensurate to the number of its members, in a physical environment that provides the basic services for the life of the family and the community” (Article 11). The NCCB (1998) refers to the Charter as expressing “fundamental parameters for legislation from a family perspective” (p. 47). But even as it sounds themes found in the Charter and other papal writings on the family, it attempts to apply the Catholic principle of subsidiarity in the context of the needs of contemporary families. In this respect, and in its approach to gender roles, work/family conflict, and family diversity, it also contrasts notably with the Manifesto. A Family Perspective Paradigm The NCCB’s A family perspective in church and society (A Family Perspective) (1998), addresses leaders in the Catholic Church and in social institutions, urging a “family perspective paradigm” to address challenges facing contemporary families (p. v). This perspective is a “systems orientation,” viewing individuals “in the context of” family and “other social relationships” and using family relationships “as a criterion to assess the impact of the Church’s and society’s policies, programs, ministries, and services” (p. 7). The perspective has four elements: (1) “The Christian vision of family life;” (2) “the family as a developing system;” (3) “family diversity;” and (4) “the partnership between families and social institutions” (pp. 7–11). The Christian Vision of Family Life According to this perspective, families have theological significance. Conjugal love is a “unique form of human friendship love” because it is “sacramental, redemptive, exclusive, fruitful, procreative” (NCCB, 1998, p. 16). The family is rooted in the “complementarity and equality” of husband and wife. This reference to equality self-consciously distances contemporary Catholic teachings about marriage as a “partnership of equality” from the earlier Canon Law’s “authority-focused view” of male headship as being

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the family’s cohesive force (p. 16). Family is “the domestic church”: it builds up God’s kingdom. It is defined as “an intimate community of persons bound together by blood, marriage, or adoption, for the whole of life” (p. 17). The church takes a “normative approach”: “The family proceeds from marriage—an intimate, exclusive, permanent, and faithful partnership of husband and wife” (p. 17). At the same time, family also includes households of more than two generations, as well as single persons and their family relationships, whether or not they reside together (p. 17). Drawing on the writings of Pope John Paul II, A Family Perspective elaborates the four tasks comprising the family’s mission in the world. First, the family is an “intimate community of persons,” a task calling for “faithful and permanent love,” challenging “exaggerated individualism” by “calling all members to self-giving,” and requires attention to the rights and dignity of every member (p. 18). Second, the family “serves life” by bringing children into the world, passing on values and traditions, and promoting “the development and potential of each member at every age” (p. 18). Third, “the family participates in the development of society by becoming a community of social training, hospitality, and political involvement and activity” (p. 18). Fourth, “the family shares in the life and mission of the Church by becoming a believing and evangelizing community, a community in dialogue with God, and a community at the service of humanity” (p. 19). The political role families have is also evident in the papal teaching that families should be “protagonists” of “family politics” and “assume responsibility for transforming society” (p. 19). Families should be “the first to take steps to see that the laws and institutions of the state not only do not offend, but support and positively defend the rights and duties of the family” (p. 18). The Family as a Developing System A Family Perspective envisions the family not as a mere “collection of individuals,” but as “a system of relationships, expectations and responsibilities by which people connect the very heart of who they are to other people” (p. 23). Family members are “radically interdependent,” and the Book of Genesis’s reference that God created “male and female” creates “the mystery that is known as the family” (p. 23). To understand such dynamics and help families, church and social leaders should focus on issues such as family strengths, family health, and the family life cycle, and they should recognize that families operate according to rules, which may be explicit or implicit (p. 24). Family Diversity The family perspectives paradigm—to a greater extent than the perspectives of conservative groups canvassed in this chapter—seems to accept family diversity and to embrace a functional approach to helping families. Similar to the Supreme Court’s observation in Troxel v. Granville (2000), the report observes that there is no longer a “typical” American family (p. 31). The report adopts a more functional approach to families, calling for a cultural shift away from a focus on structure to “the strengths and challenges inherent in each kind of family structure” (p. 32). For example, the report comments that “the values and

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traditions inherent” in many families’ “ethnic and religious heritages” are a source of strength (p. 38). It comments on the way black families have coped with “severe environmental stress” through a “wider supportive network” extending beyond the home to include intergenerational family members, friends, and church members who become “fictive kin” (p. 38). Families, “regardless of their structure,” face some similar challenges (p. 31). But families of different structures have special needs and problems. There are limits to the acceptance of diversity: families formed by gay men and lesbians are not mentioned (and elsewhere, the NCCB expressly rejects same-sex marriage (Conference, 1996)). In contrast to the Manifesto’s celebration of the self-reliant family, the report treats this as an unfortunate “myth” (p. 32). It also asserts that the myth that “families should be places of love and warmth and … essentially problem free” pressures families “to keep special needs and problems (e.g., marital conflicts) hidden” and only reluctantly turn to others for help (p. 32). This acknowledgment of family problems contrasts sharply with the Manifesto’s championing of the natural family as a protection against abuse. The report additionally addresses changing views about sex roles and their “relationship with the world of work,” which are featured among the “social trends” affecting families (p. 33). The report chronicles the shift in the cultural meaning of women working: in earlier times, a wife’s earnings were for “extras” and the husband’s wage supported the family (pp. 33–4). Today, two-worker families are becoming the norm. Women work not just out of economic necessity but also for self-fulfillment (p. 34). Further, “even women who opt to stay home to be fulltime mothers feel pressure in the form of a subtle prejudice” that assumes that a paying job gives meaning and purpose to life (p. 34). The social problem rising from this view about the primacy of paid work is that “parenting is placed on a part time basis” (p. 34). What is the solution? The report does not hearken back to the earlier cultural message. It urges that leaders make sure programs and policies help families deal with the “tensions of changing sex roles” and “take these new roles into account” (p. 39). It does not condemn the use of paid child care or call for the government to steer children into proper gender roles. The distinct Catholic focus on social justice informs the NCCB’s family perspective. The report notes that economic factors—such as poverty and the struggles of the working poor and middle-income Americans—are “the greatest stressor of family life, among all income levels” (p. 35). The report refers to the admonition to individuals and families in “Economic Justice for All” (1986) to “reflect on our personal and family decisions and curb unnecessary wants in order to meet the needs of others,” and to reflect more broadly on “the nature of our economic system” and whether it puts “maximizing profits” ahead of “meeting human needs and fostering human dignity” and protecting the environment (p. 37). The Partnership Between Families and Social Institutions  “Subsidiarity,” discussed earlier in this chapter, is an important principle associated with Catholic thought about the family and other institutions of civil society. A Family Perspective

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embraces this idea. It warns that social institutions “can never totally usurp family responsibilities” without enormous social and financial costs (p. 44). Nor should families be reduced to “bit players in their relationships with their own members” (p. 44). At the same time, it counsels realism about the many responsibilities that were once performed primarily by families and have now been transferred or are shared with government and other social institutions. The crucial contemporary task is to form “a partnership between families and those institutions that now share the responsibilities once held by families” (p. 41). A Family Perspective lacks the nostalgia for the agricultural family that the Manifesto would revive. It traces the shift in family functions from the nineteenthcentury agricultural-based family to the twentieth-century industrial family and, finally, to “the family in technological society” (pp. 42–3). The family in agricultural society was “the social institution in which important family responsibilities were met” (p. 42). However, the agricultural family’s multiple responsibilities did not mean family life was “easy” or “successful”: “At its best, people belonged to caring systems and had a clear sense of identity. At its worst, individual needs were not recognized because the families’ needs dominated; individuals, frequently women and children, were abused” (p. 42). The report concludes that the evidence argues that a range of services “became institutionalized precisely because the family was no longer able to exclusively shoulder all its previous responsibilities” (p. 43). Whatever the causes for these shifts, the relevant point is that a shrinking number of responsibilities were placed solely with families and there was a growing number of shared or transferred responsibilities. Families in industrial society still had a number of responsibilities “as theirs alone” (p. 43). By contrast, “the family in technological society” can claim only two responsibilities as “exclusively theirs”: (1) “reproduction;” and (2) “identity, affection, and love” (p. 43). The remainder of the “responsibilities that once constituted family life are now shared with a variety of institutions,” such as governmental social welfare programs, paid child care, and, for entertainment, television and other leisure-time industries (p. 43). The transfer of family responsibilities, however, does not tell the whole story: “institutions provide services,” but families are still “primarily responsible for these human needs”—for example, ensuring that a seriously ill family member gets the medical treatment she needs (p. 43). Families have also taken on new responsibilities. Industrial families had to coordinate the family’s use of institutional services, but that responsibility “has expanded for today’s technological family,” given such factors as “the major place of consumerism in family life, the family’s increased reliance on services, and its ever-increasing need for information” (pp. 43–4). Given the increased privatization of family life, the greater survival rate of family members, and the higher expectations of emotional fulfillment that people bring to marriage and family life, “the role of love, affection, and protective care in the family” has taken on a new importance (pp. 43–4). Families still have basic—even if not sole—responsibility for “economic support and basic welfare, health and mental health care, education and socialization, social control,

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recreation, reproduction, and formation of identify, affection, and nurturance” (pp. 45–6). Therefore it is in society’s best interest to enter “creative partnerships with families so that families can fulfill those responsibilities” (p. 46). The report directs employment institutions to realize that two-parent and single-parent families face “tremendous pressures trying to balance the demands of family life and work,” and the contention that “truly serious consideration” of innovative practices will not come about until employers realize that family well-being is not just the family’s issue, but also affects workplace productivity (p. 46). The report’s realism about family needs contrasts strikingly with the Manifesto’s concerns about educating girls for the role of mother and boys for the role of father, and conservative groups’ concerns that support for paid child care derogates from the special vocation of motherhood. Subsidiarity and a vision of the positive rights of the contemporary family feature strongly in the report’s discussion of a developing partnership between families and government. Governmental support of family rights, whether such rights are characterized as “developmental, environmental, or political,” are crucial because “families’ lives and government are … deeply intertwined,” yet governmental policies too often fail to take families into account (p. 48). In discussing such failures, the report mentions inattention to family diversity and changing sex roles. Most government programs are based on “outdated” assumptions about family structure and sex roles (p. 48). The report further calls for giving families a voice—“rightful input”—into decisions affecting their daily lives (p. 48). Conclusion What implications follow from this preliminary comparison of religious stances on child, family, and state with human rights instruments concerning the family? Can the resources of religion be enlisted to shore up support for human rights and for adopting domestic laws and policies that secure the well-being of children and families? Is the gulf unbridgeable between conservative religious understandings of the family and what would strengthen families and other understandings (whether liberal, feminist, or progressive)? If there is agreement across the ideological spectrum on the vital role of families in forming citizens and meeting their dependants’ needs, then why are disagreements about how best to support families so sharp? Addressing this question becomes increasingly important as conservative religious groups heighten their efforts to shape foreign policy on such issues as AIDS and sex trafficking. Explicating how the natural family features in conservative religious groups’ normative visions of family, as well as their objections to the supposed “antifamily” agenda promoted under the guise of UN human rights instruments, reveals concerns about threats to the primacy of marriage, parental and national sovereignty, and proper gender ordering. Common motivations behind such groups’ domestic and international agendas include “distrust of secular government, determination to

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preach and practice their beliefs without hindrance or restriction,” and “opposition to any perceived threat to ‘traditional family values’” (Martin, 2003, p. 337). Thus, even as such groups deride human rights projects as dangerous forms of social engineering hostile to US “culture,” they lodge this same attack against domestic laws and policies. This attack evidences a conviction that strong families require reinforcing a gendered division of labor and that women’s changing roles are part of the alarming transfer of family functions to the state. My explication of the NCCB’s “family perspective” indicates that less alarmist stances are possible concerning subsidiarity and gender roles. This chapter studies a small subset of a far broader spectrum of religious denominations and coalitions. A fruitful area of further study would examine how, along this spectrum, religions both disagree with and find positive support for the CRC and other human rights projects aimed at children, women, and families. Finally, to turn from religion to politics, identifying gender equality as a “double dividend” and linking the CRC and CEDAW, as the recent UNICEF report does, poses interesting questions about foreign policy, given that the US stands nearly alone in failing to ratify the CRC and that ratifying CEDAW seems equally unlikely in the near future (Blanchfield, 2006). In attacking the report, conservative religious groups, including the ones studied in this chapter, assert that Ann Veneman, Executive Director of UNICEF, a Bush appointee, reassured them that she would steer UNICEF away from the allegedly radical feminist agenda and back toward child survival (Crouse, 2007; Singson, 2007). What inferences, then, can one draw from the fact that, under her watch, UNICEF has expressly linked children’s well-being to fostering gender equality? In Veneman’s words: “Gender equality and the well-being of children go hand in hand. When women are empowered to lead full and productive lives, children prosper” (UNICEF, 2006, p. vii). Conservatives diagnose this stance as evidence of how deeply entrenched the radical feminist agenda is in the UN (Singson, 2007). A more optimistic reading is that even a skeptic about gender equality was persuaded, based on the concrete evidence about forms of disadvantage in women’s lives and their spillover effects on children, that empowering women in areas in which they face discrimination and disadvantage is a necessary strategy to close this gap (UNICEF, 2006, p. vii). Tempering this optimism, unfortunately, must be realism about the extent to which even terms like “empowerment” spark controversy over meaning and over what constitutes sex differences rather than disadvantage. Given the conservative fear of a human rights agenda compelling androgyny, it is ironic that one explanation of why gender equality matters to women and children is precisely because women in households make different choices and investments than men, which may be more protective of child wellbeing (UNICEF, p. 6). Controversy also breaks out with respect to what is best for children. For this reason, canvassing the resources, religious and otherwise, to help to generate a commitment to a world “fit for children,” as well as for the equal citizenship of women and men, must remain a work in progress.

Chapter 3

Rhetoric, Religion, and Human Rights: “Save the Children!” Barbara Stark

I began teaching international human rights law in 1990, and I have been buried in human rights junk mail ever since. The first information I received about the UN Convention on the Rights of the Child (CRC, 1989) was a flyer in my Knoxville, Tennessee mailbox. The flyer told of a United Nations plot to take children away from their parents (and Jesus) and put them under the control of the State. The flyer provided the phone number of a local Baptist church, where loving parents, like myself, had begun organizing a resistance. Religious groups in the United States appropriate the rhetoric of “save the children!” and leave liberals, progressives, and feminists behind. These religious groups link international human rights, including children’s rights, with the breakdown of the family, and fundamentalist religion with the preservation of the family. Feminism and human rights break down the family and, ultimately, children are worse off. Thus, strong families, grounded in strongly held religious beliefs and supported by local religious communities, are the best hope for “saving the children.” In contrast to this religious rhetoric, human rights rhetoric situates parents and children in a broader socio-political context. Most children in the United States are indeed worse off than their counterparts in other Western democracies, as illustrated by the most commonly cited indicators—economics, education, health, and violence. Contrary to the religious rhetoric, human rights rhetoric attributes this decline in children’s well-being to macro causes—increasing economic polarization, slashed social safety nets, globalization, and the mobility of capital—which strain families and fall particularly hard on the most vulnerable, including children. The human rights perspective is not a particularly radical or even controversial argument. Indeed, among many scholars, including liberals, feminists, and international human rights scholars, it is so obvious that it is hardly worth rehashing at yet another conference. The more interesting question is “Why does this argument remain anathema in the United States?” This chapter suggests that the answer to this question is grounded in the deep resistance to human rights rhetoric in the United States. The rhetoric of “save the children!” pre-dates the CRC. It survived the 2002 retirement of Senator Jesse Helms who effectively blocked ratification of human rights treaties for almost 40 years as the powerful Chair of the Senate Foreign Relations Committee. The United

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States’ resistance to children’s rights must be situated in the broader framework of the United States’ resistance to human rights. Like the earlier struggle for human rights (“then”), the contemporary campaign for children’s rights (“now”) is playing out in a larger international political and economic context. By comparing the forces that shaped the struggle then with those that shape the struggle now, children’s advocates can draw on strategies that were particularly effective earlier and avoid those that were not. Conversely, by recognizing the ways in which the campaign for children’s rights is different from the earlier struggle for human rights, children’s advocates can develop fresh approaches to new challenges. Part one of this chapter provides a historical overview of the human rights campaign in the United States after World War II, a campaign that provided crucial sustenance to the nascent civil rights struggle in this country. Part two of this chapter explains how the contemporary campaign for children’s rights is similar to that earlier struggle. Part three focuses on the differences between the two struggles, particularly honing in on the emergence of an activist religious right as a major player in the current struggle and the way that the religious right has transformed the domestic political landscape. As this chapter explains, the growing political power of the religious right, supported explicitly by the Bush Administration, is a key distinction between the human rights struggle then and the children’s rights struggle now. After World War II, the domestic civil rights movement was backed by the executive branch, which Cold War politics forced to recognize the movement as part of a larger international human rights struggle. Accordingly, the civil rights movement used the leverage of world opinion, reflected in and reinforced by international human rights law, to defeat domestic reactionaries, who sought to maintain racial segregation in the South under the guise of state’s rights. Now, children’s rights advocates are the target of an executive branch that sees children’s rights on the domestic, national level as a threat to parents’ rights. Similarly, on the international level, the Bush Administration saw children’s rights as part of a larger foreign movement to discredit and embarrass the United States. Thus, when the domestic children’s rights movement seeks to draw on the leverage of the world, it is criticized and stigmatized. Moreover, the United States’ failure to recognize international children’s rights cuts domestic groups off from their natural allies in the international community. Part One: The Human Rights Story The International Bill of Rights World War II was a catalyst for international human rights law. Unlike the rest of international law, which concerned the behavior of nation-states toward other nation-states, human rights law focused on the conduct of States toward their own people. States endorsed the radical notion of human rights in horrified response

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to the atrocities of World War II. For the first time in history, States conceded that their own people had rights beyond the rights granted under domestic law, rights that even the States themselves could not legally abrogate. Like the American Declaration of Independence, the Universal Declaration of Human Rights (Declaration), drafted in 1948, was originally intended as an aspirational statement. The United Nations Charter, drafted three years earlier, similarly adopted a hortatory tone with regard to human rights. While the United States was eager to declare its support for international human rights after World War II (and quickly recognized the need for other States to guarantee them), the United States was wary. As David Forsythe points out, “[I]n the 1940s and early 1950s, the United States was opposed to precise and binding obligations in the issue area of human rights. Fear of international scrutiny of its domestic practices, in the south and elsewhere, loomed large in United States calculations” (1991, p. 21). The United States was not the only reluctant State. It was not until the mid1960s, and the emergence of former colonies as newly independent States, that the Declaration took legally binding form. It was divided into two more specific instruments, the International Covenant on Civil and Political Rights (Civil Covenant, 1976) and the International Covenant on Economic, Social, and Cultural Rights (Economic Covenant, 1976). These instruments are multilateral treaties under which ratifying States ensure the human rights of their own people. Together with the Declaration, the two covenants comprise the International Bill of Human Rights, globally recognized as the definitive core of international human rights law. The Civil Covenant addresses negative rights, such as freedom of religion and expression and freedom from arbitrary arrest or detention. These rights are familiar to Americans because they are guaranteed by the Bill of Rights of the United States Constitution. The rights set out in the Economic Covenant, in contrast, have historically been marginalized in the United States. The Economic Covenant addresses positive rights, such as the right to health and the right to education. By ratifying the Economic Covenant, a government makes it a priority to assure all of its citizens an adequate standard of living. Although some commentators claim that the ideas captured by the Economic Covenant originated in the United States, tracing it to President Franklin Delano Roosevelt’s “freedom from want,” the United States is the only major industrialized democracy that has not ratified it. The United States’ refusal to ratify the Economic Covenant can be attributed to both the historical antipathy toward economic rights in the United States and to global politics during the mid-1960s when the covenants were drafted. Most scholars agree that the two covenants evolved from the Declaration “because of the East/West split and a disagreement over the value of socioeconomic rights” (Forsythe, 1986, p. 540). The bifurcation of rights into two covenants was further justified by differences in “the nature of the legal obligation and the systems of supervision that could be imposed” (Harris, 1991, p. 666). While it is a mistake to overstate the distinction between positive and negative rights, law that prescribes and law that prohibits usually require different approaches. The States accordingly

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agreed to recognize economic rights, which would be achieved through progressive realization, while implementing immediately the civil and political rights set out in the Civil Covenant. The United States, however, refused to ratify even the Civil Covenant until the end of the Cold War. The Leverage of the World Although the United States was unwilling to subject itself to the international norms set out in the human rights treaties, the executive branch was concerned about the international reaction to domestic practices. The Cold War became a catalyst for desegregation. The human rights arguments used by the United States against communism, especially our pride in our freedom and our notion of America as the land of opportunity, were undermined by the denial of basic civil and political rights to black Americans. The Soviets broadcast over 1,400 photographs of the American civil rights struggle to an appalled world. As Vicki Goldberg describes the Soviet campaign: “Those pictures of dogs and fire hoses were published in Europe, Africa, India, Japan. Photographs were especially powerful in countries where large parts of the population could not read” (1994, p. H31). As legal historian Mary Dudziak explains: At a time when the United States hoped to reshape the post war world in its own image, the international attention given to racial segregation was troublesome and embarrassing … [T]he international focus on United States racial problems meant that the image of American democracy was tarnished … Unites States government officials realized that their ability to sell democracy to the Third World was seriously hampered by continuing racial injustice at home. Accordingly, efforts to promote civil rights in the United States were consistent with, and important to, the more central United States mission of fighting world communism. As the Justice Department made clear in the Amicus Brief it submitted in Brown, desegregation had become a Cold War imperative. (1988, p. 61)

While the executive branch worried about our American image abroad, Congress was more concerned about the domestic reaction to international law making. An excerpt from the debate in the United States Senate Foreign Relations Subcommittee on the Genocide Convention reveals both Congress’ general distrust of international human rights law and its more specific concern about the possible impact of that law on domestic civil rights: If there is to be a succession of treaties from the United Nations dealing with domestic questions, are we ready to surrender the power of the States over such matters to the Federal Government? Is that the road to peace, domestic or foreign? … The report of the Civil Rights Committee appointed by the President, after considering the division of power over civil rights between the Federal Government and the States, in two places refers to the added power which may

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be given to Congress in the field of civil rights if the human-rights treaty is ratified and approved. (Rix, 1950, pp. 206–8)

Many in Congress were emphatically not “ready to surrender the power of the states over [civil rights] to the federal government” and certainly not to the United Nations. They supported Senator Bricker’s proposed amendment to the United States Constitution, which would require an Act of Congress before any human rights treaty could become United States law. The Eisenhower Administration defeated the Bricker Amendment by promising not to ratify any human rights treaties. Later presidents were not bound by this promise, of course, and President Jimmy Carter signed four major human rights treaties, including the Civil Covenant, the Economic Covenant, the Convention on the Elimination of All Forms of Racial Discrimination (Race Convention), and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Despite President Carter’s support, none were ratified, in large part because Senator Jesse Helms vehemently opposed. It was not until 1992, after the collapse of the Soviet Union, that President George Bush broke the logjam. The United States ratified the Civil Covenant in 1992 and the Race Convention in 1994. The United States still has not ratified the CEDAW or the Economic Covenant. Part Two: Now Like Then … The campaign against the CRC is similar to that earlier campaign against human rights. Now, like then, human rights are portrayed as a foreign imposition, an affront to sovereignty, and an attack on domestic values. The response, again, is to rally the faithful, and reclaim the language of rights in order to do so. Again, the whole world is watching. Finally, now like then, the surface campaign reflects a deeper ongoing struggle about race and class in America. There’s an External Threat Now, like then, those opposing human rights evoke the imagery of an external threat, a fundamental attack on American sovereignty. Then it was communism, a global conspiracy to deprive Americans of their authority over domestic questions, such as civil rights. Now, it is UN bureaucrats seeking to subject American families to international (that is, “foreign”) norms. These norms will ostensibly deprive parents of their authority over their children. The analysis by Klicka and Estrada (1999) is illustrative: There is no doubt that [the CRC] is completely devastating to the traditional parents’ rights which our nation was founded upon. [This treaty] is the perfect vehicle to fulfill all the goals of the child’s rights organizations and bureaucrats who are working for an agenda that would eradicate parents’ rights. (§ 3)

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Corporeal punishment, for example, is condemned under the CRC. In contrast corporeal punishment by parents is legal in most American states, as long as it does not rise to the level of child abuse. Rallying the Faithful In response to this perceived foreign encroachment, there is a massive, wellorganized resistance. Then, the rallying cry was, “states’ rights!” Now, the rallying cry is “parents’ rights!” The same conservative groups that have been the most vocal defenders of “family values” in the divorce context have expended an astonishing amount of energy and resources in targeting the CRC (Renteln, 1997; Kilbourne, 1996). As the Home School Legal Defense Association asserts on its website: We’ve become more and more concerned about the sovereignty of the Unites States vis-à-vis the United Nations as expressed by its policies on religious liberty, human rights, children’s rights, and the family. The UN Treaty on the Rights of the Child is an example of the UN’s view of the family. We have opposed the UN Treaty on the Rights of the Child because it would strip parents of much of their authority to educate, train, and nurture their children according to the dictates of their conscience. (2005, § 16)

It is unclear precisely how the CRC would “strip parents of much of their authority.” Opponents do not rely on specific provisions of the CRC. Nor do these opponents cite analyses of its text or of its effectiveness. There are neither studies of its impact, or lack of impact, in other States, nor is there data regarding its incorporation in national laws. Rather, the appeal to the faithful is broad, simple, and straightforward, undiluted by nuance and uncomplicated by facts. It is a rallying cry, not an argument. The Whole World is Watching Now, like then, the whole world is watching. Then, as described above, the Soviets sought to exploit the civil rights struggle in the United States, to show people of color in the developing world that the United States was racist. Now, those who seek to portray the United States as a pariah State take every opportunity to point out that the United States is the only State, except for Somalia, which has failed to ratify the CRC. But the criticism is far less strident now. This weakening reflects fundamental and dramatic shifts in the world order. First, the United States is the sole remaining superpower, and no other State has the economic clout to compete or the military might to challenge its hegemony. Even as China pulls ahead as the world’s fastest growing economy, it still depends on the American market. Even as the American military seeks to restore credibility after Abu Ghraib and extricate itself from an

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unwinnable war in Iraq, it remains the best-trained and best-equipped fighting force on the planet. While many States may question the United States’ role in the world, these States cannot yet look to a Soviet Union or other alternative for support and protection. Second, many States that might be willing to confront the United States, such as Islamic States in the Middle East, are unlikely to do so on the issue of children’s rights. The position of our former conservative, faith-based administration on this issue, after all, was not so different from their own. Our allies in Europe, while endorsing a relatively liberal view of children’s rights in the human rights jurisprudence emerging from Strasbourg, are unlikely to focus on this as a key dispute. Although, it should be noted, these European allies were vociferous in opposing the juvenile death penalty in the United States. Unless it is a clear matter of life and death, however, the United States’ rejection of children’s rights is unlikely to generate strong condemnation. Children do not vote. It’s About Race and Class Now, like then, the deeper, underlying struggle is about race and class. There has always been a strong correlation between race and poverty in the United States. This correlation is the result of multiple, overlapping factors and is overdetermined; that is, because of the multiple factors contributing to black poverty, addressing them piecemeal is unlikely to be effective. These factors include, first, the legacy of slavery. Unlike other groups, African Americans did not come to the United States because of the promise of opportunity, but were enslaved and exploited. As emerging reparations jurisprudence demonstrates, the effects of slavery are powerful and enduring. Second, distinct but related, ongoing racism limits opportunities for blacks, and affirmative action programs are increasingly dismantled. Thus, while most poor children are not black, black children are much more likely to be poor. Economic Rights As noted, the Economic Covenant focused on economic and social rights, including welfare rights and the right to a job, familiar to European socialists but foreign to Americans. Instead of economic rights, we believed in the rhetoric of opportunity. We did not need social safety nets here. Rather, the boundless opportunity of America would assure everyone willing to work in America a comfortable standard of living, if not great wealth. For many in America, especially African Americans and Latinos, the rhetoric of opportunity lost its allure. For the first time since the census has been taken, income remains flat for five consecutive years. Poverty has grown (Leonhardt, 2005). Now, the rhetoric promises that globalization, or free market democracy, will bring prosperity to all. Even as paychecks shrink or disappear, even as struggling American businesses downsize and outsource, globalization puts the

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consumer goods on the shelves of Wal-Mart that were previously available only to the rich. Even as economists ponder the paradox of a jobless recovery, those without jobs, or those who have been forced to trade good paying jobs in the manufacturing sector for minimum wage jobs at McDonald’s, wonder how they are going to pay soaring fuel costs. Children are among the hardest hit. According to recent data compiled by the Children’s Defense Fund (2004), one in six children in America is poor, and one in three should expect to be poor at some point in his or her childhood. Poverty affects every aspect of a child’s life. Poor children are more likely to suffer from hunger and malnutrition. They are more likely to live in unsafe housing and attend overcrowded schools. They are more likely to become victims of violence. According to the Children’s Defense Fund (2004): The national crime rate has dropped nearly 25% since 1993, but more than one quarter of violent crime victims known to police in the United States are juveniles. Youth ages sixteen to nineteen currently experience overall violence, including rape and general assault, at higher rates than people in all other age categories. (para. 10)

While these figures refer to children in general, poor children are more likely to grow up in violent neighborhoods, or not grow up at all. The health risks faced by poor children, set out in the following chart, provide a stark and graphic example of the ways in which poverty diminishes quality of life. Table 3.1 Statistics based on data received from Children’s Defense Fund website, 2005 Outcomes Health Death in infancy Premature birth (under 37 weeks) Low birthweight No regular source of health care Inadequate prenatal care Family had too little food sometime in the last 4 months

Low-Income Children’s Higher Risk 1.6 times as likely 1.8 times as likely 1.9 times as likely 2.7 times as likely 2.8 times as likely 8 times as likely

In fact, the health risks faced by poor children in America are closer to those faced by children in the developing world than those of children in other developed States. Few in Washington, however, champion economic rights. Then, although the Soviets eschewed all human rights as bourgeois, economic rights were denounced in the US as a form of communism. Now, conservative groups argue that the best way to assure children’s economic rights is through

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responsible two-parent families. As many commentators point out, however, programs intended to support such families discriminate against blacks as a practical matter because of the disproportionate numbers of incarcerated adult black males and the disproportionate numbers of black children born to unmarried mothers. The Right to Education Nowhere does the underlying struggle about race and class, and the links between the two, play out more dramatically than in the context of the right to education. The long, tortured jurisprudence of this right is as close as we have come to recognizing any economic rights in this country. The right to education is assured under Article 13 of the Economic Covenant. Although there is no right to education in the federal Constitution, public education has been recognized as key to any meaningful conception of opportunity since the early nineteenth century (Stark, 2000). Although access was initially restricted to white males, by mid-century, white females also attended public schools. Despite these developments, there were no schools for black slaves in the South, and many states enacted laws against teaching slaves to read. In Boston, where black literacy was high, the Massachusetts Supreme Court in 1849 denied a claim by Sarah Roberts to be allowed to attend an integrated school (Roberts v. City of Boston). Justice Shaw, using language that the United States Supreme Court would echo in the infamous case of Plessy v. Ferguson (1896), held that there was no violation of the Massachusetts Constitution since the schools for blacks in Boston were “separate but equal.” The United States Supreme Court did not address the issue for another hundred years. It was not until 1954 that the Court rejected the doctrine of “separate but equal” in Brown v. Board of Education, which was decided at the beginning of the civil rights movement and the beginning of the larger, international human rights movement of which it was a part. As both Martin Luther King and Malcolm X understood, the realization of civil rights depended on the realization of economic rights. The arguments against civil rights in the Brown era were framed as claims for “state’s rights.” That is, the federal government should not interfere in what was historically state government responsibility. Over time, the argument developed into a claim that the federal government lacked the expertise, as well as a workable understanding of local conditions, to effectuate school desegregation. Thus, the Supreme Court softened the mandate: schools were to be desegregated “with all due deliberate speed” (Brown II, 1955). Fifty years later, the phrase is still the subject of litigation. While Brown I eliminated de jure segregation, de facto segregation remains ubiquitous. The CRC, like the Economic Covenant, requires the State to educate its children. Now, like then, the argument against State education is local control. The assertion is that schools should not be subject to abstract international norms. Rather, schools should be governed by those whose children attend them. Nor should an international treaty dictate the curriculum. The CRC, for example,

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requires that schools teach human rights. The religious right, in contrast, wants schools to teach intelligent design. Religious authorities in other States have also sought to increase their influence by establishing religious schools. Indeed, as the Committee on Economic, Social and Cultural Rights pointed out, in many parts of the world, including parts of Afghanistan and Pakistan, these religious schools are the only schools available. Part Three: Unlike the Earlier Struggle … It’s About Parental Autonomy The rhetoric of parental autonomy, or parents’ rights, pre-dates the CRC. In the 1986 case of Mozert v. Hawkins County Board of Education, for example, fundamentalist parents challenged Holt Rinehart texts used in public schools in Hawkins County, Tennessee. The parents argued the texts might encourage a child to become “a feminist, a humanist, a pacifist, an anti-Christian, a vegetarian or an advocate of a ‘one-world government’” (Mozert, 1986). The parents asked that their children be excused from classes using such texts. Their request was denied on appeal on the ground that the State had a legitimate interest in teaching independent critical thinking and tolerance. The parents’ claim in Mozert would have seriously undermined these secular purposes of education and required a major overhaul of the public school curriculum. The Mozert parents may have lost the battle, but the explosive growth of the home school movement in the United States since the 1980s suggests they may have won the war. While the Mozert parents do not control the public school curriculum, they have had a major impact on the home school curriculum. The Home School Legal Defense Association (HSLDA), representing “tens of thousands of American families,” explicitly identifies itself as a “Christian organization” (HSLDA Mission, 2005). This is clarified in a letter written by HSLDA Chairman of the Board and General Counsel Mike Farris: We are a Christian organization … This colors our way of thinking about many things. Fundamentally, it is reflected in what we believe is truth … The truth is that God created the family. It is God’s view of the family that is reflected in our western civilization and in our law until very recently. If we tear down this Godbased view of the family, then all of the God-based principles in our society are ultimately at risk. (2005, § 9)

The perception remains, however, that parents’ rights are under siege. This was shown in the response to the Clinton Administration’s measured support for the CRC. The religious right addressed the foreign threat with renewed vigor. Indeed, the perception that parents are under attack is carefully maintained. As the HSLDA defines its mission:

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To preserve and advance the fundamental, God-given, constitutional right of parents and others legally responsible for their children to direct their education. In so doing, we rely on two fundamental freedoms—parental rights and religious freedom. We advocate for these freedoms in the courtrooms, before government officials, and in the public arena. Additionally, we assist other educational organizations in similar activities, where possible and appropriate. (HSLDA Mission, 2005, para. 1)

It’s About God As Professor Martha Minow pointed out 20 years ago, family law is “underneath everything that grows” (1985, p. 819). Professor Minow explained that family law was “underneath” both in the sense that it is viewed as less important than other law and that it, in fact, serves as a foundation for deeply held societal values. This is reflected in State jurisprudence, in which matters concerning children and family are left to religious or local authorities. For example, the State regards family law as less important than finance and trade. At the same time, paradoxically, family law is often regarded as critical by those seeking to shape the national identity. As described in a recent cover story in the New York Times Magazine, “With Jesus As Our Connector: Life on the Faith-Based Frontier,” “second generation mega-churches are the new social centers and town squares—providing schools and services and advancing their own notion of community” (Mahler 2005, 3). Their pastors and their leaders are directly involved in peoples’ lives. Evangelical religious groups in the United States are not organizing the poor. Rather, like the Radiant Church described in “Life on the Faith-Based Frontier,” they are reaching out to the mostly white middle-class inhabitants of the exurbs. Evangelicals also shape the debate, by reaching out to voters—American parents— about their children and their schools, issues largely neglected by liberals, feminists, labor unions, and the Democratic Party. Similarly, religious groups in other nations have sought political power and influence through family law. For example, Muslim clerics in Nigeria established religious shari’a courts in the north that have authority over family matters. Also, when the State of Israel was established, rabbis demanded that family law be left to religious leaders. Like the clerics and the rabbis, the rising religious right in the United States resists the assertion of state authority over family law. This is an important part of the agenda of the growing evangelical movement. The Whole World May Be Watching, But Who Cares? Human rights law is a powerful and growing international system of treaties and customs—an emerging global consensus. More than 180 nations have ratified the Civil Covenant, the Economic Covenant, the CEDAW, and the CRC. By incorporating human rights law, nations accede to an international bottom line. As a corollary, domestic law incorporating human rights norms will likely be compatible with a

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broad range of foreign law similarly incorporating these norms. It is increasingly likely to resonate, accordingly, with an increasingly mobile population. But the United States does not care. Desegregation was a Cold War imperative but “saving the children” is not a globalization imperative. While people in the Third World empathized with black Americans living under segregation, it is not clear that American children inspire similar compassion. When we talk about our children eating “garbage,” we mean junk food; when UNICEF talks about children eating garbage, they literally mean “garbage,” such as the rotting fish heads on which the street children living on the shores of Lake Victoria in Tanzania subsist. Not the Federal Government Unlike the Eisenhower Administration’s support for civil rights, the Bush Administration vehemently opposed children’s rights. Instead, the administration promoted its much-criticized “No Child Left Behind” program, which focuses on standardized testing and clamps down on social promotion. Education may be the closest the United States has come to recognizing socioeconomic rights, and children may be the most appealing recipient group, but precisely because it is on the frontier, it may fail. There is little political support for the rights of children, and although some continue to press for integrated, quality public education, many see it as an illusory goal and argue that voucher programs and charter schools hold greater promise for the poor, especially poor blacks (Kozol, 2005; Glazer, 2005). There are few constituencies for whom public education is the main priority, and these groups are stretched very thin. The Soviets are gone, and the East/West conflict that drove the State Department to recognize desegregation as a Cold War imperative is over. While the Supreme Court decision in Grutter v. Bollinger (2003) recognized diversity as a globalization imperative, the decision limited both the role and the scope of affirmative action, offering little support for public education in general. Table 3.2 Statistics compiled from information given on the Children’s Defense Fund website, 2005 Outcomes Education Math scores at ages 7 to 8 Reading scores at ages 7 to 8 Repeated a grade Expelled from school Being a dropout at ages 16 to 24 Finishing a four-year college

Low-Income Children’s Higher Risk 5 test points lower 4 test points lower 2.0 times as likely 3.4 times as likely 3.5 times as likely Half as likely

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Public education in America is in crisis. American students lag behind students in other industrialized nation-states in math, science, and basic skills. Poor children are especially likely to lag behind. In fact, many argue that public education is a failure. For many of the children of the rich and middle class, it has effectively been replaced by private schools. The children of the religious right are increasingly home schooled. Poor children are left in overcrowded, chronically underfinanced public schools in poor neighborhoods. The dubious promise of charter schools is often their only hope. Conclusion This chapter described some of the ways in which the current struggle for children’s rights parallels the mid-twentieth-century struggle for civil rights, both of which may be understood as part of the larger, emancipatory project of human rights. Then, like now, the rhetoric was of local groups under attack. In the earlier era, the underlying struggles over race and class were exploited by the Soviets and quickly grasped by the newly independent nation-states of the developing world. Drawing on the leverage of the world, civil rights activists turned public opinion against segregation, culminating in Brown v. Board of Education (1954). No one argues for mandatory segregation anymore. From another perspective, however, no one has to. American schools, like American residential neighborhoods, are increasingly segregated. The story of “then” and “now” is not a simple one. Then, the polarization was East and West. Now, the axis of polarization is contested. While liberals and human rights activists talk about economic polarization, their arguments have little momentum. First, the perception of class mobility in America persists, however false it may be. Second, Americans in general—even poor Americans—remain better off than much of the world. Third, and crucially, there is no superpower nation-state seeking to exploit America’s ongoing failure to assure the human rights of its own citizens. Rather, the axis of polarization shifted, facilitated in large part because of the growing role of religion, here and abroad. There are two basic rhetorical dichotomies: secular versus religious States, or godless versus saved. The former draws on Enlightenment notions of tolerance and humanism; the latter basically abandons the notion of a secular State, drawing instead on the rhetoric of the “clash of cultures,” popularized in the West by Samuel Huntington. The Bush Administration, unfortunately, supported the rhetoric of the religious right. It is as if Eisenhower refused to send federal troops to Little Rock to desegregate the schools. The leverage of the world is still a factor, but the United States has weighed in against human rights. Many, here and abroad, regard this as a shocking betrayal. The world’s sole superpower effectively renounced its own traditions. It stands, alone with Somalia, against the CRC. We have left it to the religious right to “save the children!” but if they do, who is going to save the rest of us?

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Chapter 4

Feminist Fundamentalism on the Frontier between Government and Family Responsibility for Children Mary Anne Case

The equality of the sexes is a fundamental commitment government must follow through on, not only in law making, but in its hortatory pronouncements, funding decisions, and necessary interventions into the private sphere, such as child custody and adoption decisions. Not only in public schools and governmentfunded educational programs, but in state-licensed private schools and home schooling, it must ensure that girls and boys receive equal opportunity. Evidence of commitment to sex equality should be at least as assiduously enquired into and at least as positively weighted as a prospective adoptive or custodial parent’s commitment to providing a child with religious training, something many decision makers seem to enquire into and weigh favorably, often without much apparent attention to the substance of the religious beliefs. As things now seem to stand, however, when repressive religious beliefs are pitted against secular feminist ones, the religious beliefs often seem to begin with a presumption to respect which is even more deserved, but often not granted, to the feminist ones. Therefore, at a time when so many different religious fundamentalisms are demanding legal recognition—particularly when it comes to control over children, whether within the family, in the schools, or in the broader society—I want to vindicate something I have come to call feminist fundamentalism, by which I mean an uncompromising commitment to the equality of the sexes as intense and at least as worthy of respect as, for example, a religiously or culturally based commitment to female subordination or fixed sex roles. Sex Equality is a Particular as well as a Universal Value I could build this vindication on international human rights norms, because many feminist fundamentalist commitments are not only in accord with, but also independently mandated by, these norms, while some cultural or religious  A version of this chapter will appear in the Utah Law Review’s 2009 Symposium Issue New Frontiers in Family Law.

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commitments to women’s subordination or to fixed sex roles conflict with these norms. For several reasons, I shall instead make my case on the basis of United States constitutional law. Nation-states like the US, as well as individuals, can have feminist fundamentalist commitments. Focusing on these commitments helps dissolve any perceived dichotomy between feminist or liberal universalism on the one hand and local cultural commitments on the other by highlighting the fact that we, the people of the United States, as well as those elsewhere in the liberal, feminist, constitutional West, have our localized cultural commitments. These commitments are at least as important to us, and as entitled to protection, as the local cultural commitments of others are to them. In seeking to dissolve the dichotomy between liberal universalism and cultural particularity, I only wish to bracket, not to deny, disparage, or obviate, universal human rights claims. The fact that some of our local norms are required by, and others are at least consistent with, universal human rights norms is an independent justification for demanding respect for our norms, quite apart from their cultural significance to us, just as the fact that some other cultural norms violate or are in tension with universal human rights norms is a basis for denying such norms respect, notwithstanding their cultural significance. My claim is simply that in addition to whatever force our norms derive from their consistency with universal rights norms, they can also derive additional independent force from the fact of their imbeddedness in and centrality to our particular culture. Equality and freedom with respect to sex and gender are high among the national cultural commitments of the United States, as well as of the other Western constitutional democracies I have studied as a comparativist. They are also, for some, religious commitments as well. The cultures produced by commitment to sex equality and liberty are at least as extraordinary, fragile, and in need of defense as cultures more generally recognized as unique and endangered, such as those of, for example, the hunter-gatherers of Papua New Guinea. Very few cultures over the history or the territorial expanse of the world have embraced commitments to sex equality, repudiation of fixed-sex roles, or integration of the sexes; and they remain at risk. I happen to be contingently lucky that my own personal feminist fundamentalist commitments are pretty close to those embraced by the constitutional culture in which I live, although I am just old enough to have developed them as my personal commitments before the US Supreme Court enshrined them in constitutional jurisprudence. There are two main ways of formulating the principle behind a norm against the denial of equal protection on grounds of sex. The first is that women should not be subordinated by the law or, more broadly, by men. The second is that sex should be irrelevant to an individual’s treatment by the law and, more broadly, to his or her life chances. On this latter view, “fixed notions concerning the roles and abilities of males and females” (Mississippi University for Women v. Hogan, 1982, p. 785) are anathema when embodied in law, even in law that does not in any articulable way subordinate women to men. It is this latter

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view, which repudiates fixed sex roles as well as female subordination, which has become our national constitutional orthodoxy, enshrined in an unbroken line of US Supreme Court case law since the 1970s (Case, 2000). My use of religiously inflected terms such as orthodoxy and anathema in this context is deliberately intended to press several analogies to the discourses of religion. For example, just as the new constitution of Iraq provides that “No law that contradicts the established provisions of Islam may be established” (Iraqi Constitution, 2005, § I, Article 2), the Constitution of the United States mandates that no law that contradicts the equality of the sexes may be established. Together with racial equality and the non-establishment of religion, the equality of the sexes is among the very few commitments the existing US constitutional order makes fundamentally binding on government whenever it acts or speaks. Moreover, just as a shared commitment to the principles of Christianity or to Islam can work itself out in importantly different ways among different denominations or communities of believers, so a commitment to sex equality, like commitments to freedom of speech or religious liberty, although widely shared among liberal constitutional nation-states, can be spelled out in importantly different ways by different constitutional cultures. My case for feminist fundamentalism could be made with respect to any number of other constitutional orders, including Canada and the European legal systems I have studied as a comparativist, but it would need to be made in a culturally as well as legally specific way. Thus, for example, a feminist fundamentalist perspective on the French legal system would have to take account of both parité and mixité, as well as the interaction of these specifically French feminist commitments with other fundamental French values. As French President Nicolas Sarkozy said, “The meaning, the values, of French ‘identity’ is clear. It means laicity, sexual equality, opportunity. I believe in a mix, not in communitarianism, and, when you forget those national values, communitarianism is what you get” (Kramer, 2007). That the French mix is somewhat different from the American, or, for that matter, the Dutch, the British, the Canadian, or the German, leads France, famously, to answer the question of whether Muslim girls may wear hijab in public school classrooms differently than these other nations have, although each of these nations is, like France, committed to the equality of the sexes. The US Supreme Court’s Articulation of Sex Equality as a Priority What it might mean in practice for feminist fundamentalism to operate as a necessary constraint on state action is, for any legal system, particularly tricky when that state action involves children. Many who are themselves personally and professionally committed to sex equality in law and life are also committed to honoring other values, including religious freedom, cultural diversity, personal and family autonomy, and sharp limitations on government interference in private life and individual choice. Properly interpreted, however, existing US law already commits us as a nation to sex equality as a priority.

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Although both religious freedom and family autonomy are protected by the Constitution of the United States, the Supreme Court has also made clear that: the family itself is not beyond regulation in the public interest … [a]nd neither rights of religion nor rights of parenthood are beyond limitation … Acting to guard the general interest in youth’s well being, the state as parens patriae may restrict the parent’s control by requiring school attendance, regulating or prohibiting the child’s labor and in many other ways. Its authority is not nullified merely because the parent grounds his claim to control the child’s course of conduct on religion or conscience … 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, pp. 166–70)

When the state does exert its regulatory power over children and the family, it must do so consistent with its fundamental commitments, including those to equality on grounds of sex as well as race. Among regulations of the family in the public interest are, for example, laws mandating that parents support their minor children. In the Stanton case, in 1975, the US Supreme Court held that it would be unconstitutional for Utah to require a divorced father to support his son until age 21, but his daughter only until age 18. The Court explained: A child, male or female, is still a child. No longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas … If a specified age of minority is required for the boy in order to assure him parental support while he attains his education and training, so, too, is it for the girl. To distinguish between the two on educational grounds is to be self-serving: if the female is not to be supported so long as the male, she hardly can be expected to attend school as long as he does, and bringing her education to an end earlier coincides with the role-typing society has long imposed. (Stanton v. Stanton, 1975, p. 10)

In the nineteenth and early twentieth century, Justices of the Supreme Court had been willing to go along with society’s sex-role stereotyping. Concurring in a judgment that the state of Illinois could deny a license to practice law to Myra Bradwell, a married woman, Justice Bradley wrote in 1873: The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of  In the Prince case, the Supreme Court upheld the application of laws prohibiting child labor against a woman who had taken her nine-year-old niece and ward onto the streets of Brockton, Massachusetts to preach and distribute religious pamphlets.

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the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband … The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases. (Bradwell v. Illinois, 1873, p. 141)

As the Stanton case indicates, however, since the 1970s the United States Supreme Court, interpreting the Equal Protection Clause of the Constitution, has consistently held views such as those expressed by Justice Bradley in the Bradwell case to be not only outdated as a descriptive matter, but impermissible as a normative matter as a basis for governmental decision making. More generally, the Supreme Court has held all sex stereotypes to be anathema when embodied in law or in other government action. In one of his last important opinions, Nevada Department of Human Resources v. Hibbs (2003), Chief Justice Rehnquist affirmed that we in the United States have established so strong a constitutional orthodoxy on matters of sex and gender that Congress has prophylactic power under Section Five of the Fourteenth Amendment to enforce this orthodoxy on the states. As Rehnquist made clear, this orthodoxy mandates, not simply sex equality, but no governmentally endorsed sex-role differentiation in all matters, including those related to family and childrearing. Accordingly, to fight the long-standing, now heretical, “pervasive sex-role stereotype that caring for family members is women’s work” (Hibbs, 2003, p. 731), Congress can impose on the states as employers the Family and Medical Leave Act (FMLA, 1993). FMLA mandates that persons of both sexes, not just women, can get leave from their employers for what Martha Fineman calls their inevitable or derivative dependency, that is to say, for their own illness or that of close family members, as well as to care for their young children (Fineman, 1995a). The Hibbs opinion completes the circle opened in Stanton. When Justice Blackmun’s Stanton majority opinion declared: “No longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas,” there was a subtle lack of parallelism in the formulation (“only the male,” not “the male only”) (Stanton, 1975, p. 10). Women, the Stanton court held, were welcome in both the public and private spheres, but what of men? “Women’s activities and responsibilities are increasing and expanding,” Blackmun continued. Indeed they were, but were men’s to the same extent? In his majority opinion upholding the FMLA, Rehnquist perfects the parallelism, holding, in effect, that it is no longer “solely.… the female [who is] destined … for the home and the rearing of the family.”

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According to Rehnquist, Congress has prophylactic power to target through the FMLA “the fault line between work and family—precisely where sex-based overgeneralization has been and remains strongest”: Stereotypes about women’s domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men. Because employers continued to regard the family as the woman’s domain, they often denied men similar accommodations or discouraged them from taking leave. These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary family caregiver. (Hibbs, 2003, p. 736)

It is in several respects particularly noteworthy that Rehnquist was the author of the Hibbs opinion. Rehnquist was notoriously a latecomer to acceptance of the current constitutional law of sex discrimination’s repudiation of distinctions between the roles of men and women. While in the Office of Legal Counsel, he unsuccessfully urged the Nixon Administration to oppose the Equal Rights Amendment, accusing ERA supporters of “a virtually fanatical desire to obscure not only legal differentiation between men and women but, as far as possible, physical distinctions between the sexes,” as well as of “overtones of dislike and distaste for the traditional difference between men and women in the family unit, and in some cases very probably a complete rejection of the woman’s traditionally different role in this regard” (Legal Times, 1986, p. 4). As an Associate Justice, he regularly dissented from decisions striking down rules that distinguished on their face between males and females, although he did concur in Weinberger v. Wiesenfeld (1975), which, like Hibbs, concerned sex-distinctions in the benefits offered parents of young children. In that case, plaintiff Stephen Wiesenfeld, who was left with the sole responsibility for the care of his infant son Jason Paul when his wife Paula, the principal wage-earner for her family, died in childbirth, challenged a law offering Social Security survivor’s benefits only to widows, and not to widowers with young children. Because Rehnquist saw as the sole legislative purpose for survivor’s benefits to “make it possible for children of deceased contributing workers to have the personal care and attention of a surviving parent, should that parent desire to remain in the home with the child,” he found it “irrational to distinguish between mothers and fathers when the sole question is whether a child of a deceased contributing worker should have the opportunity to receive the fulltime attention of the only parent remaining to it” (Wiesenfeld, 1975, p. 655). Even so, Rehnquist was not yet fully convinced that a man would find his place in the home. The Wiesenfeld case was one of many sex equality cases argued by Ruth Bader Ginsburg, and the only one in which Rehnquist did not vote against the position for which Ginsburg had advocated. Years later, when Ginsburg had joined him on the Supreme Court, Rehnquist asked her, “Tell me this: did he really take care of the baby?” Ginsburg, who had officiated at the wedding of Jason

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Paul Wiesenfeld, himself now a lawyer, could assure Rehnquist that Stephen Wiesenfeld had indeed taken care of his son (Strum, 2002, p. 70). Rehnquist himself took on child care responsibilities late in life, leaving work early to pick up his grandchildren from school when his daughter, a single working mother, had child care problems. Perhaps this is what caused him to demonstrate what he himself wryly called “a capacity for growth” when it came to questions of sex discrimination (Greenhouse, 2003). Perhaps it was simply his respect for settled law, as articulated in his concurrence in United States v. Virginia (1996) in which he castigated the Virginia Military Institute for failing to take any action in advance of litigation to comply with the constitutional requirement of sex equality. In any event, although Rehnquist ordinarily gave great constitutional weight to federalism and states’ rights and, as a result, was reluctant to extend Congressional powers under Section Five, he saw the need for such power to combat “stereotype-based beliefs about the allocation of family duties” (Hibbs, 2003, p. 730). This is further evidence of the fundamental place that not only sex equality, but its instantiation in the repudiation of sex stereotypes, has in the United States constitutional order. The strength of our constitutional commitment to racial equality has led to constitutionally mandated limitations on government tolerance of and participation in private discriminatory acts, including those affecting children. Just as the Stanton case established that state actors cannot take societal sex role stereotypes into account in setting child support obligations, so, too, the 1984 Supreme Court case of Palmore v. Sidoti prohibited any racial discrimination in custody decisions, even when the best interests of an individual child might call for it. The child in question was the young daughter of divorced white parents in Florida whose father sought to gain custody when her mother married a black man. The Supreme Court acknowledged, “There is a risk that a child living with a stepparent of a different race may be subject to a variety of pressures and stresses not present if the child were living with parents of the same racial or ethnic origin” (Palmore, 1984, p. 434). It nevertheless held that the courts were precluded from taking racial prejudice into account in determining custody: “The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect” (Palmore, 1984, p. 433). The strength of our constitutional commitment to racial equality has led to constitutionally mandated limitations on government tolerance of and participation in private discriminatory acts respecting the education, as well as the custody, of children. For example, after mandating that public schools no longer segregate pupils on the basis of race, the Supreme Court, by restricting local governmental attempts to close public schools and channel subsidies to private racially discriminatory schools, placed limitations on government’s ability to assist private actors in finding an end run around school desegregation (Griffin v. County School Board, 1964; Norwood v. Harrison, 1973). Just as it does with racial equality, government as decision maker must also act consistently with its commitment to sex equality. Thus, while government as

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speaker, actor, and dispenser of subsidies is free to take a variety of positions, among those it may now no longer take nor promote is that of Justice Bradley in Bradwell v. Illinois to the effect that, “[t]he natural and proper timidity and delicacy which belong to the female sex evidently unfits it for many of the occupations of civil life …” (Bradwell, 1873, p.141), even though such a position may still be fervently held by many people of faith. What might this mean in practice? Consider a few examples, some more hypothetical than others. At one extreme of the hortatory axis is the question what constitutional limits there might be on mere government pronouncements of principle unmoored from direct, binding connection to policy. In 1993, the commissioners of Cobb County, Georgia adopted resolutions proclaiming, among other things, “that ‘the traditional family structure’ is in accord with community standards … that ‘lifestyles advocated by the gay community’ are incompatible with those standards … and that Cobb County would not fund ‘activities which seek to contravene these existing community standards’” (Achenbach, 1993). If, by “traditional family structure,” the commissioners had explicitly indicated that they meant, not just a heterosexual couple, but a patriarchal one, with wives submissive to husbands and confined to the domestic sphere, as Justice Bradley urged, the resolution would violate existing US constitutional equality norms. “[L]ifestyles advocated by the [feminist] community” can no longer be “incompatible with the” official community standards of any unit of government in the United States. A sign saying “Welcome to Cobb County, Where a Woman’s Place is in the Home” would be a combination welcome mat/no trespassing sign with, in my view, serious constitutional problems. My colleague, Judge Richard Posner, apparently agrees with me that such a message would be problematic, since he goes so far in a recent opinion as to list “a woman’s place is in the home” together with “blacks have lower IQs than whites” among the messages whose psychological effects on children could be such as to allow a public school to forbid students inscribing it on T-shirts they wear to class (Nuxoll v. Indian Prairie School District 204, 2008, p. 15). Feminist Fundamentalism in Educational Programs The problems only intensify when government seeks to use its powers to fund or regulate to promote such problematic messages. Attention to such problems is particularly urgent at times when the federal government is interested in sending messages, to children as well as adults, about appropriate family structure and   Those “advocated by the gay community” have a more ambiguous status under current US law: so long as they do not transgress the limits set by the Court in Romer v. Evans (1996), units of government still have some degree of freedom in the extent to which they celebrate or condemn “gay lifestyles.” It should go without saying that in adapting the language of the Cobb County resolution to the rhetorical purposes of this chapter I do not mean to suggest that the resolution’s language is anything but hopelessly vague.

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sexual behavior backed by carrots and sticks. For example, assuming arguendo that “promoting marriage” through subsidies, hortatory and regulatory means is an appropriate activity for the federal government, it is still constitutionally constrained to promote only egalitarian marriage. Court challenges to programs promoting marriage have to date focused unsuccessfully on claims under the religion clauses (Christianson v. Northwest Marriage Institute, 2007). However, the fact that a government-funded program whose promotion of marriages in which wives are to be submissive to their husbands does not rely in a “pervasively sectarian” way on scripture for its subordinating message should not be enough to shield such a program from further constitutional scrutiny (Widiss, Rosenblatt, and NeJaime, 2007, p. 501). As Cornelia Pillard has argued: If government must not act on the belief that men are aggressive and thus better fit than women for military-style education, women are better mothers, or boys are more likely than girls to drink and drive dangerously, then it should follow that government may not seek to indoctrinate students with those same sexbased generalizations. (Pillard, 2007, p. 957)

Pillard’s focus is on the sex stereotypes associated with abstinence-only sex education, including the perpetuation as both a normative and descriptive matter of “the stereotyped double standards of virility versus chastity, homemaker versus breadwinner, subject versus object of desire,” but her point can be generalized to other aspects of the school curriculum, whether in the public schools themselves or in other government subsidized educational programs. Justice Souter, in dissent from his colleagues’ decision upholding a program of government-funded vouchers parents could use to pay for religious schools, wrote that not “every secular taxpayer [will] be content to support Muslim views on differential treatment of the sexes, or, for that matter, to fund the espousal of a wife’s obligation of obedience to her husband, presumably taught in any schools adopting the articles of faith of the Southern Baptist Convention” (Zelman v. Simmons-Harris, 2002, p. 716). I would go farther than Souter and say that it would already be unconstitutional for the government to fund this sort of teaching, in the same way as it has been held unconstitutional for the government to fund racial segregation (Norwood, 1973). Parents with religiously based objections to public school curricula presenting an untraditional view of sex roles have long been told by federal courts that they have no right either to force a public school to change its curriculum or to opt their children out of those portions of the curriculum containing messages of sex equality. Thus, in one leading case, born-again Christian Bob Mozert was unsuccessful in his court challenge to his children’s being exposed by their public school curriculum to “role reversal or role elimination, particularly biographical material about women who have been recognized for achievements outside their homes” (Mozert v. Hawkins County Board of Education, 1987). Apostolic

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Lutheran parents in another school district, upset that “schools are contributing to the Womans’ [sic] Liberation Movement by making [it] mandatory that the boys take home economics and the girls take shop,” similarly failed to persuade a court that they were constitutionally entitled to have their children excused from portions of the curriculum the parents found objectionable on religious grounds (Davis v. Page, 1974). But, in rejecting the parents’ free exercise claims, the courts in neither of these cases explicitly relied on constitutional sex-equality guarantees. In my view, the courts could have gone much farther, treating the schools’ choice of materials that challenged sex stereotypes not as merely permissible and as such immune from a free exercise challenge, but as constitutionally required to provide to both male and female students equal protection on grounds of sex. State-sponsored education is not merely permitted, but also required, to refrain from promoting a message of inequality between men and women. Although the constitutional argument is more complicated, the limitation should be no different when it shifts from the public school to those forms of private or home schooling that are authorized by the state as substitutes for public education. Unfortunately, when one moves beyond those institutions bound by Title IX, there has to date been comparatively little in the way of regulatory attention paid in the United States to ensuring that the education provided to students through state-regulated private and home schooling even minimally communicates or comports with norms of sex equality. But scholars such as James Dwyer and Kimberly Yuracko are right to insist that the state is under a constitutional obligation to protect children from receiving a discriminatorily inferior education on grounds of sex, whether or not that education is in a private or home school and whether or not it is dictated by the parents’ religious beliefs (Dwyer, 1998; Yuracko, 2008). Some might suggest that the US Supreme Court case of Wisconsin v. Yoder (1972), in which the Old Order Amish were allowed as part of their constitutionally protected free exercise of religion to withdraw their teenage children from school in contravention of school attendance requirements, stands in the way of the argument here. But subsequent decisions have made quite clear that the Yoder case will be essentially limited in its application to the Amish. Moreover, although the Amish resisted higher education for their children, they apparently did not distinguish between boys and girls in so doing, giving both sexes similar training. Scholars who studied them at about the time of the Yoder decision reported: Although the Amish girls always wear dresses and the little boys, after they are toilet-trained, wear trousers, there is little difference in the tasks they are taught to perform. Boys are encouraged to like horses and machinery, but children of both sexes accompany their father around the farm and help their mother with simple household tasks. (Hostetler and Huntington, 1971, p. 18)

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Had the Amish insisted on pulling only their daughters out of school without a high school diploma, while also insisting on sending their sons to college, the case would be more on point here. Sex Equality in Educational Programs is Linked to Equality for Gays and Lesbians The Apostolic Lutheran parents who unsuccessfully litigated in federal court to stop boys from taking home economics were worried about more than Women’s Liberation. They also expressed concern that: … boys between [the] ages of 12 and 16 are very vulnerable to effeminate or homosexual development if [a] certain environment is provided … [I]f students who already have possible unknown problems in this area were placed in this atmosphere condoned and imposed by those in authority it would certainly contribute to a particular students [sic] overall destruction of masculinity. Men are the head of the family not the homemakers. (Davis v. Page, 1974, p. 404)

Similarly, as part of a successful attempt to persuade Governor Arnold Schwarzenegger to veto the Bias Free Curriculum Act, which would have prohibited educational materials used in California schools from reflecting adversely on persons because of, inter alia, their gender or sexual orientation, Luis Goldamez, Latino spokesman for the Campaign for Children and Families, insisted: We can no longer allow girlie-men in this state or any state to dictate to our children what they’re going to teach them. We need to see them face-to-face and tell them, we have our pants on the right way, we are men and women, we are not confused. And if anyone needs to teach our children, it needs to be us parents, not girlie-men from this building or any other building. (WorldNetDaily.com, 2006)

One of the myriad ways that the equality of the sexes is linked to gay rights is that those with a religiously based insistence on promulgating fixed sex roles or female subordination often explicitly link it to a religiously based opposition to tolerance for, or recognition of, homosexual behavior and relationships. It behooves both feminist fundamentalists and advocates for gay and lesbian rights to be more attentive to and explicit about these connections. Consider, for example, US Secretary of Education Margaret Spellings’s decision to force out of the Public Broadcasting Service (PBS) television series Postcards from Buster an episode featuring a lesbian civilly-united couple from Vermont who run a maple sugaring operation with their three children. The episode featuring the Vermonters was called “Sugartime,” and there were snide suggestions in the reporting on Spellings’s actions that “sugaring” was thought

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to refer to an exotic sexual practice, although in fact, of course, the reference was simply to the routine production of maple sugar (Salamon, 2005). Although Postcards from Buster had received federal funding specifically to showcase the diversity of American families, and although the series had included, without objection from Spellings, a Muslim family who veiled their pre-teen daughter, as well as evangelical Christian and Mormon families, Spellings claimed, in a letter to PBS officials, that “many parents would not want their young children exposed to the life-styles portrayed in this [Sugartime] episode” (Jackson, 2005). No apparent account was taken of those “many parents” who might not want their children exposed to the religiously traditional “life-styles” portrayed in other episodes. Not only is Spellings’s decision constitutionally problematic viewpoint discrimination, feminists and proponents of equality for gays and lesbians have common cause to object to it. Feminist Fundamentalism in Child Custody and Adoption As has been clear for some time when it comes to state laws governing matters such as alimony and child support, sex equality norms also should constrain government on those occasions when the state necessarily adjudicates concerning the family. In the remainder of this chapter, I will work through examples, some more controversial than others, of what this might mean for parents and children. Among the questions I will consider is to what extent government, in its adjudication of custody as between already recognized parents or its placement of children for adoption, should take commitment or opposition to women’s equality into account. Before readers protest that I am proposing massive government intervention into constitutionally protected parenting choices, it is important for me to stress that I am focusing my attention here on situations where there is already of necessity governmental intervention. In such situations a policy of noninterference in the family or of leaving things up to autonomous individuals to decide for themselves is simply not an option. A custody dispute between two divorcing parents, for example, must be resolved—if neither parent is unfit, a court must decide between them in the best interests of the child. In deciding such cases, evidence of commitment to sex equality should be at least as assiduously inquired into and at least as positively weighted as a prospective adoptive or custodial parent’s commitment to providing a child with religious training, something many decision makers in adoption and custody cases seem to inquire into and weigh favorably, often without much apparent attention to the substance of the religious beliefs. It is notoriously difficult to determine what is actually happening as a general matter in family law cases, given how few result in reported decisions and how manipulable and vulnerable to judicial bias, conscious or unconscious, are the relevant standards, such as “best interests of the child.” From the few reported cases it appears, however, that when repressive religious beliefs are pitted against

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secular feminist ones, the religious beliefs often begin with a presumption to respect I want to insist is even more deserved, but I realize is often not granted, to the feminist ones. Consider, as a frightening example, the case of Laurie April Wang, who left her husband after his church subjected her to an exorcism, as it had another woman, “to rid herself of the ‘evil, unsubmissive spirits,’ the spirits which caused her to speak up for herself and to exercise authority rather than completely submit to her husband” (In re Marriage of Wang, 1995, p. 454). A court adjudicating her custody dispute was unwilling to consider whether her husband’s religious convictions and his efforts to pass them on to his son might adversely affect her relationship with her son, apparently because it “took the position that religion is beyond the pale of the court’s scrutiny” (Leaphart, dissenting in Wang, 1995, p. 452). Even courts that do, in the end, rule against parents who claim religious authority for the sexist beliefs and practices those parents seek to impose on their children often do so without giving any explicit consideration to the role constitutional norms of sex equality should play in their decision making. Thus, in Roberts v. Roberts (2002), a Virginia judge did terminate a father’s visitation with his son and daughter after hearing testimony by a clinical psychologist that the daughter “is particularly at risk of psychological damage because of [her father’s] telling her that women should not strive to accomplish what men accomplish and that they are supposed to be subservient to men” (p. 59); evidence that the daughter, an “excellent student,” did “better in school this academic year, during which no visitation has occurred, than she did last academic year, when there was visitation” (p. 58); and evidence that the father had told both children that they and their mother, whom he called “a sinner” and “of the devil” (p. 57), would all go to hell. The judge concluded that visitation with the father was causing “serious psychological and emotional damage to the children,” in no small part because “the values being taught to the children by [their father] are different from the values being taught to the children by [their mother]” (p. 60). Among these conflicting sets of values were that the mother “encourages the children to be whatever they want to be. [The father] tells [his daughter] women cannot do what men do” (pp. 59–60). But, even with respect to these values, the court insisted only, “Whichever set of values is right, and the court makes no judgment on which set of values is right, they are irreconcilably at odds” (p. 60). It may well be true that, as between “tolerance” and “fire and brimstone”— another of the enumerated conflicts in values between these particular parents—a court can make no judgment, but I would argue that a court is constitutionally compelled to choose encouragement of a daughter’s choice of occupation over a fixed and subordinating message that “women cannot do what men do.” That is not to say that the parent who most favors sex equality should always prevail, simply that a court must not remain viewpoint neutral as between sex equality and its opposite; it must put a thumb on the scales in favor of the parent who would give a daughter the same encouragement, liberty, and opportunity as a son.

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If the son or daughter makes use of this liberty to develop interests and ambitions traditionally and stereotypically not associated with his or her sex—if he develops an interest in nursing, or she in engineering—this should not be seen as a harm, but as a vindication of our commitment as a constitutional culture not to enshrine “fixed notions concerning the roles and abilities of males and females” (Mississippi University for Women, 1982, p. 785). Sociologist Judith Stacey has reported data suggesting that among the few differences between children raised in lesbian households and other children is that those raised in lesbian households, particularly girls, are somewhat more likely to “behave in ways that do not conform to sex-typed cultural norms,” have a “greater interest in activities associated with both ‘masculine’ and ‘feminine’ qualities and that involve the participation of both sexes,” and have greater interest in pursuing careers in fields traditionally dominated by the opposite sex (Stacey and Biblarz, 2001, p. 168). If these reported differences are to play any role at all in governmental decision making about lesbian parenting, they should cut in favor of, not, as some opponents of gay rights have argued, against, recognition of lesbian parents. Although my take on cases like Wang and Roberts is consistent with the analysis of scholars such as James Dwyer, who has written extensively about religious exemptions to child welfare and education laws as denials of equal protection to children of religious objectors (Dwyer, 1998), it is directly at odds with that of many scholars of the First Amendment. Most notably, Eugene Volokh has argued that the First Amendment requires that views such as those articulated by Messrs Wang and Roberts not be stifled (Volokh, 2006). The hierarchy of US constitutional values is not as Volokh suggests, however. It is not the free exercise or free speech clause that is on a par with equal protection on grounds of race and sex when it comes to the extent of the limitations it places on government action; rather, it is the establishment clause, and, in cases such as Wang and Roberts, the prohibition on government’s establishing a religion and the guarantee of equal protection on grounds of sex cut in the same direction—against the parent insisting on a religiously grounded commitment to female subordination. One of the reasons the First Amendment may be seen to complicate the analysis in cases like Wang and Roberts is that both involved conflicts over gender ideology reflected largely in the fathers’ discriminatory speech, rather than in any other alleged discriminatory treatment of children on grounds of sex. Harmful though it may be for Mr Roberts to tell his daughter that her options are more limited than her brother’s, it might have been even easier for a court to see the harm had her father also pulled her out of school in accordance with his ideology. Because religious liberty claims played such a central role in decisions such as Yoder, there is every reason to believe as a matter of law that a parent who limits a daughter’s education or loads her down with chores will get less respect from a court for this decision if it is only culturally, and not also religiously, grounded. Indeed, courts, many dealing with immigrant families in which not only gender role ideology but a parent’s genuine pressing need for help around the house may keep a girl out of school, generally seem to have fewer problems favoring

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the parent who equalizes educational opportunity when religion is not at issue. This causes consternation among some scholars, but I think it was, for example, perfectly appropriate for a Nevada court that awarded custody of a young Mexican girl to her US resident father in preference to her illegal immigrant mother to take into account, among other things, that while in her mother’s custody the girl had been forced to assume substantial care-giving responsibilities for her disabled brother (Rico v. Rodriguez, 2005). Government should disfavor in competition for children those who, for example, would make a girl do all the household chores while her brother can study or play. Though the cases that get press attention in this regard tend to feature families that are culturally, ethnically, or religiously exotic, from the polygamous Fundamentalist Church of the Latter Day Saints (FLDS) to Muslim and Mexican immigrants, recently released data on the chores performed by children show that, even in mainstream American families, girls in many households do in fact spend far more hours on household chores than boys, leaving boys more time to play and to study (Shellenbarger, 2006). Moreover, the chores girls are given to do are less likely to be paid and less likely to be marketable than those assigned to boys. Notwithstanding that, as Viviana Zelizer points out, in the nineteenth century families often took in foster children principally to have an extra pair of hands for farm chores and household tasks (Zelizer, 1985), we would today find unthinkable the adoption of a black child to be, in effect, a household servant for his or her white adoptive siblings. We should feel similarly about a girl expected to do likewise for her brothers. The case for feminist fundamentalism being outcome determinative in custody or adoption decisions is, other things being equal, stronger (a) when those competing for a child begin with presumptively equal rights in that child, as occurs in a custody fight between two recognized parents, or an adoption decision when there are multiple qualified adoptive parents; (b) when both ideology and actions are discriminatory; (c) when only culture, not religion, is used to justify the antifeminist contender; (d) when the child is a girl, although, as the Wang and Roberts cases show, a son can also be at risk; and most importantly (e) when the antifeminist acts or speech rise to the level of child abuse, so as potentially to justify a finding of parental unfitness. Even those who may find the examples I have thus far cited in this chapter unpersuasive would surely agree that there is some point on the continuum at which a parent’s speech or action in support of a commitment to female subordination or rigid sex roles would cross the line into abuse. For example, those who might not agree that it should count against a parent that he tells his daughter her place is in the home doing housework might feel differently if he kept her chained there day and night, an illiterate drudge, and might then favor state intervention, even if there was no recognized competitor for his daughter’s custody, and even if he gave religious justifications for so severely restricting her.

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The Texas FLDS Case as an Example of How Not to Apply the Discourses of Religion and Human Rights to Children Unfortunately, the fact that sex role differentiation with its roots in female subordination seems so “familiar” inhibits support for state intervention to combat it. Consider, for example, the reaction to the State of Texas’s April 2008 attempt to remove more than 400 children from parents who were members of the FLDS living on the Yearning for Zion Ranch. The state’s intervention was prompted by reports that a 16-year-old girl was being forced to marry a 49-year-old man. The state did find that “more than 30 of the 53 girls from 14 to 17 who were at the ranch are pregnant or have children” (Frosch, 2008). A quick overview of public commentary on the state’s action reveals that few, other than representatives of the State of Texas itself and self-identified survivors of polygamy, have been quoted in support of the state’s action, however. Pundits on both the left and right condemned the state’s intervention into the family and the community. I agree that the strict preconditions Texas law sets before children can be removed from their homes on an emergency basis were not satisfied in this case and that the Texas courts, therefore, had little choice but to order the children’s prompt return. But I am disturbed by the dismissive way in which the Texas Court of Appeals, whose decision that the children should be returned was upheld by the Texas Supreme Court, treated the Texas Department of Family and Protective Services’ allegations of danger to the children (In re Sara Steed, 2008). The Department took the position that “due to the ‘pervasive belief system’ of the FLDS, the male children are groomed to be perpetrators of sexual abuse and the girls are raised to be victims of sexual abuse” (Steed, 2008, p. 6). But the Texas Court of Appeals repeatedly insisted that the Department had made no showing of “any risk to them other than that they live in a community where there is a ‘pervasive belief system’ that condones marriage and child-rearing as soon as females reach puberty,” as if this in itself were no big deal (Steed, 2008, p. 11). To help clarify why I find the court’s attitude so disturbing, imagine that instead of the “pervasive belief system” of the FLDS concerning adolescent female sexual activity with older males, the court had instead been faced with the pervasive belief system of the Sambia of New Guinea, who, as documented by anthropologist Gilbert Herdt, held and acted on the view that if young boys did not regularly   Compare this with Lynch v. Donnelly (1984), (Brennan, J. dissenting) (noting, in an Establishment Clause case, that, “because the Christmas holiday seems so familiar and agreeable,” the Court’s majority is blinded to the “distinctively sectarian” nature of the display of a crèche in the public square).   Therefore, I am not suggesting that the bottom line decision of the Texas courts— that by law the children should be returned forthwith to their FLDS parents—was incorrect. There did not seem to be evidence of imminent physical harm to all the children, nor did it seem that Texas had taken heroic measures to find a solution short of immediate removal, as the law requires. See In re Texas Department of Family and Protective Services (2008).

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fellate older males and ingest their semen, thereby replacing mother’s milk with male milk, they would never grow up to be proper men themselves (Herdt, 1987). Would the court have sent young boys back to their families so promptly after finding that they “were in [no] physical danger other than th[ey] live … among a group of people who have a ‘pervasive system of belief’ that condones,” not “polygamous marriage and underage females having children” (Steed, 2008, p. 10) as did the FLDS, but underage males regularly fellating older males as did the Sambia? Surely not. Perhaps this is because the FLDS’s “umbrella of belief” that for girls “having children at a young age is a blessing” (Steed, 2008, p. 9) is more “familiar and agreeable” to the Texas courts than the Sambian “umbrella of belief” that for boys, ingesting semen at a young age is a comparable blessing. It remains unclear where in the cycle of socialization into an “umbrella of belief,” such as that of the FLDS, courts are prepared to intervene so as to protect young girls. If the age of consent remains unchanged, impregnating them remains a crime. But, does the after-the-fact possibility of long sentences for statutory rape for men who have sex with young girls trained to believe they risk their salvation if they do not cooperate actually prevent harm to the girls? Shouldn’t some efforts be made to intervene earlier, before the girls are pregnant? Yet, even when one parent strongly objects to socialization into underage polygamy, courts seem reluctant to rule in favor of that parent. Consider the Pennsylvania Supreme Court’s disposition of the custody dispute between the divorcing Shepps. Their divorce had been occasioned by his conversion to a fundamentalist polygamous variant of Mormonism from the more traditional Mormonism both parents had previously practiced. A lower court had heard evidence that he had told his 13-year-old stepdaughter that her salvation depended on her practicing polygamy, and that when she turned 14 she should marry him, her stepfather. An intermediate appellate court then “specifically prohibited” him “while [his biological] child is a minor from teaching her about polygamy, plural marriages or multiple wives” because it found that “promotion of his beliefs to his stepdaughter involved not merely the superficial exposure of a child to the theoretical notion of criminal conduct, but constituted a vigorous attempt at moral suasion and recruitment by threats of future punishment” (Shepp v. Shepp, 2006, p. 696). But the Supreme Court of Pennsylvania reversed, saying that, even when it came to “religious beliefs, which, if acted upon, would constitute a crime” (Shepp, 2006, p. 703), their promulgation to a child could not be restricted unless it were “established that advocating the prohibited conduct would jeopardize the physical or mental health or safety of the child, or have a potential for significant social burdens” (Shepp, 2006, p. 706). I agree with the dissenting judge that such a showing had clearly been made in the Shepp case. As I see it, in both the Shepp and the Steed cases, court majorities were not only far too willing to be deferential to religious justifications, but also, in addition, far too unwilling to treat female subordination through traditional sex roles as something unusual and disturbing. Similarly, the court-appointed social worker in the Wang case found after an investigation that there “were no ‘bizarre

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activities going on’ at the Cornerstone Community Church but rather it was merely a fundamentalist church” (Wang, 1995, p. 451), notwithstanding testimony about the lengths, including exorcism of supposed demons, the church was prepared to go to ensure compliance with its “teaching that women are not allowed any authority, and that men must be allowed to make all the decisions” (Wang, 1995, p. 454). What may help account for the tendency of both left and right to support the FLDS against the Texas Department of Family and Protective Services is a related, though simultaneously diametrically opposite, phenomenon to that afflicting the court majorities; to wit, that both sides of the political spectrum tended to focus on those aspects of the FLDS’s situation with which they could most readily identify. The religious right could make common cause with the FLDS’s religiously based conformity to traditional sex roles and patriarchal authority; the secular left could focus instead on the ways in which the FLDS was non-conforming and culturally distinct. Each by extension could fear the implications for its own divergences from mainstream culture from any successful attempt to force the FLDS to move to the mainstream. A feminist fundamentalist take on the FLDS case, especially one informed by information available about the Yearning for Zion Ranch from sources in addition to those cited by the Texas courts, might instead see the case as an object lesson in what can go wrong when the constitutional mandate of equal protection on grounds of sex is not systematically and with full force applied in state regulation of the family and the education of children. A consistent story emerges from the autobiographies of Elissa Wall, whose court testimony about her forced marriage at age 14 helped put FLDS leader Warren Jeffs in jail as an accomplice to rape; of Carolyn Jessop, who successfully challenged the FLDS elder, whose fourth wife she became at age 18, for sole custody of the eight children she ultimately bore him; and of the four former FLDS women among the 18 “women who escaped” polygamy whose stories are told in God’s Brothel (Wall and Pulitzer, 2008; Jessop and Palmer, 2007; Moore-Emmett, 2004). We read in each of these accounts of girls “treated like an indentured servant, forc[ed] to do all the cooking, cleaning and babysitting” (Jessop and Palmer, 2007, p. 53), “condemned to a life of virtual slavery” (Moore-Emmett, 2004, p. 93), and taught that “a woman’s role is to be obedient without question to her husband” (Wall and Pulitzer, 2008, p. 188) and that “a woman had no right to speak out … even if her goal was to protect her daughter” (Jessop and Palmer, 2007, p. 53). These women write, not only of being denied education they specifically longed for and requested, but of receiving education, not only at home, but in FLDS-controlled classrooms, into complete submission to the brutality young boys are simultaneously encouraged to perpetrate upon them. Thus, for example, according to Carolyn Jessop, Warren Jeffs, who served as a teacher at the FLDS school before he succeeded his father Rulon as the community’s Prophet,

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brought one of his wives into the auditorium, which was packed with boys. [She] had a long braid that fell past her knees. Warren grabbed the braid and twisted and twisted it until she was on her knees and he was ripping hair from her head. He told the boys that this was how obedient their wives had to be to them. (Jessop and Palmer, 2007, p. 195)

These autobiographical accounts also give the lie to the FLDS claim that the state of Texas’s seizure of the children was uniquely disruptive to the otherwise stable and secure home life the FLDS children had always known. Their authors tell of home life in the community repeatedly disrupted by order of the Prophet, who expelled boys and men from the community, reassigned the men’s wives and children to other men in other households, frequently moved family members between and among enclaves in Texas, the Colorado/Utah border, and Canada, and then occasionally welcomed back those he had previously expelled from the community. Unfortunately, however, so long as so many judges continue to underestimate the harm even extremely sexist parents such as those of the FLDS can do, and to undervalue the voices for women’s equality raised against those parents by, among others, some of their ex-wives and mothers of their children, our legal system will have failed to live up to its constitutional commitment to offer all persons, including the girls and boys whose education, adoption, and custody the state regulates, the equal protection of the laws.

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Part II

Children in the United States: The Legal Context Introduction The majority of direct encounters for children and their parents with the legal system in the United States comes as a result of three circumstances: the child is an alleged perpetrator of an illegal act; the child is an alleged victim of abuse or neglect; or there is a change in the parents’ relationship requiring court involvement in decisions about the child’s custody. In these instances society, through its laws and legal institutions, is an active participant in specific decisions concerning individual children. The law gives the state an explicit interest and a well-defined role. The proceedings are legalistic and familiar in form, involving adversary interests, hearings, and the determination of an outcome based on evidence presented in individual cases. However, the legal system is also important in a less direct, more generalized way as it shapes the institutions which form the backdrop for day-to-day interactions between parent and child. Some of these interactions occur within the institution of the “private family,” while others are deemed more public in nature. Significant institutions through which society’s interest in the child are expressed form the contexts for considerations of state responsibility to the child independent of parental obligations. In fact, as several of the chapters in this section indicate, these analytically separate dimensions of state involvement with children and families should be viewed as interactive, often either mutually reinforcing or simultaneously undermining of each other. For example, if the state views its responsibilities to include little more than protection of children from the abuse or neglect of parents, social goods such as education, health care, housing, or adequate nutrition can be deemed the responsibility of those parents and not the right of the child and the obligation of the state to provide. To a large extent in the US the state is conceived as appropriately standing outside of and independent from the family. As a result, in either the direct (legal proceeding) or the generalized (societal institutional) expression of state interest in children, there is a possibility for condemnation of state action as inappropriate intervention into the family and usurpation of its natural prerogatives. This possibility is heightened in the US legal system because of its historic adherence to the concepts of family privacy and parental rights. If we move away from those concepts favoring parents as ultimate and, for most practical purposes, exclusive decision makers for children toward a more child-centered, contextualized perspective when making decisions about children, will that also require a

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reassessment of the inherent obligation of the state to provide a minimum level of social goods and services to children independent of family circumstances? Linda Keller begins this section with an examination of the successful campaign to abolish the juvenile death penalty in the US, which culminated in the US Supreme Court decision of Roper v. Simmons (2005). That decision, which outlawed capital punishment for offenders who were under the age of 18 at the time of their crimes, is a dramatic exception to the typical historical situation in the US, in which international opinion and jurisprudence have been ignored in domestic decision making. In fact, until recently, one of the more common reasons given for its failure to ratify the CRC was the fact that the US allowed the execution of offenders who committed their offenses before they turned 18, a practice the CRC prohibits. Many commentators share Keller’s hope that the Supreme Court has become more receptive to international and foreign law being used as persuasive authority on certain subjects. Keller sees Roper as instructive for a larger rights movement for children and details the multi-pronged advocacy strategy applied to reach its positive result. Sentencing children to death has not been the only drastic outcome for youth who commit serious crimes in the US, however. While the juvenile court system was originally created for rehabilitative purposes, approaches toward children in conflict with the law have become increasingly punitive. Particularly since the 1990s, the upper age of juvenile court jurisdiction has dropped below 18 in many states, and most states now automatically process large numbers of youth as young as age 12 or 13 in adult criminal court systems. Although these youth can no longer be sentenced to death, in many states they can be sentenced to life without parole. Bernardine Dohrn considers these harsh processes and the consequences facing young people who break the law, arguing that the logic and rationale of Roper should lead to reconsideration of three practices that have become common over the last 20 years in the United States. These harsh practices, which have not increased public safety or reduced juvenile crime, are (1) trying children as adults, (2) incarcerating children with adults, and (3) sentencing children to extreme terms of confinement. Dohrn argues that not only does the logic of Roper lead to the need for proportional and restrained punishment of adolescent offenders, so does international law. Annette Appell shifts our attention from the criminal justice system to the law of the family where children are the subjects of private custody disputes. She scrutinizes the traditional “parental rights doctrine,” considering who is benefited and who is harmed by its application and assessing whether it is still relevant, given the changing composition of American families. She raises questions about whether under the existing political, economic, and ideological structure in the United States continuation of the parental rights doctrine and the maintenance of family life in the private realm does the least harm, considering that there are other alternatives to apportioning rights as between parents and children. The chapters by Naomi Cahn and Susan Vivian Mangold follow up on the theme of parental versus other rights in regard to children. They each consider the traditional

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US approach, which is to conceptualize a triangle of interests in which parent, child, and state are placed in tension with one another, but the state is conclusively deemed to have a significantly smaller interest in the resulting balance. Cahn considers the impact of this current triangular analysis on children in foster care and persuasively argues for policies that view children in a relational context. She asserts that while children have individual rights, they are individuals who are members of families and communities, and honoring their rights and interests must occur in a context that respects their relationships. Cahn explores the impact of poverty on children and families and recommends approaches to child protection that do not disparately harm poor children. Cahn expands on these concepts and reframes the distinctions between the feminist and children’s rights movements. She challenges the belief that the goals of each are mutually exclusive, replacing that premise with frameworks that are mutually beneficial to women and children. Mangold also argues that the historical parent–child–state triangle is unnecessarily limited and that to truly protect children the triangle must be exchanged for a conception that embraces a much larger circle of care for children. Mangold explores the role of private providers in the child welfare system and demonstrates how their formal inclusion in the legal framework of decision making about abuse and neglect cases would enhance the protection of children, the accuracy of the process, and the legal representation of children. Woodhouse and Hardy narrow the focus on applying international standards to the rights of children in abuse and neglect cases. They provide a dramatic but common illustration of a child’s journey through the child welfare system as a subject of the proceedings without any independent say about how his life should be structured. The authors turn to the US Constitution, Supreme Court jurisprudence, and provisions of the CRC to provide an alternative approach that provides greater legal consistency and better outcomes than the current approach. Finally, Kimberly Jenkins Robinson and Martha Fineman consider children as participants in the US educational system. Although education is both mandated and regulated by law, children and parents do not have a right to education in the US. Robinson discusses why the right to education should be afforded to the child and proposes that Congress create a federal right to education in the US through spending legislation. Robinson turns to international human rights laws for inspiration on how a right to education would be implemented and enforced in the US. Fineman approaches the idea of a right to education from a different direction, exploring who is the holder of a child’s right to education, assuming such a right exists. She questions the extent to which a child’s rights or interests are or should be considered when decisions are being made about the child’s education. Fineman asserts that perhaps the best way to protect a child’s interests regarding education is by mandating universal public education for all children.

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Chapter 5

Using International Human Rights Law in US Courts: Lessons from the Campaign Against the Juvenile Death Penalty Linda M. Keller

In 1988, when the United States Supreme Court first banned capital punishment for those under the age of 16, international human rights treaty law was relegated to a mere footnote (Thompson v. Oklahoma, 1988). International instruments, however, played a key role in the more recent 2005 decision finding that execution for crimes committed under the age of 18 violates the Eighth Amendment, which provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted” (Roper v. Simmons, 2005). The majority opinion in Roper cited several international human rights treaties to support its conclusion, including the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights. Drawing on Supreme Court opinions and amicus briefs, this chapter explores how advocates against the juvenile death penalty moved international human rights standards from the periphery to the center of the debate. The chapter shows how a majority of justices of the Supreme Court is receptive to international and foreign law as a tool to confirm interpretations of constitutional provisions, particularly the Eighth Amendment. It examines the relevant treaties as well as impermissible reservations to treaties, customary international law, and jus cogens norms. It contends that the Roper majority legitimately used international law in the decision. In illustrating how the Court could have adopted a more radical interpretation of international law, this chapter demonstrates the potential for broader reliance on international law in the courts. Finally, the chapter suggests ways to use international human rights to advocate for children in the United States. The success of the campaign against the juvenile death penalty is a model for advocacy on other issues, such as reforming the juvenile justice system and enhancing economic rights for children.

  At the time of the death-eligible act. In general, the term ‘juvenile death penalty’ refers to the imposition of a sentence of death on a defendant who was a juvenile (under the age of 18) at the time of the crime of which he was convicted.

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Supreme Court Jurisprudence—Juvenile Death Penalty The juvenile death penalty offers a striking example of the role of international law in constitutional interpretation. First, the contrast between the Court’s decision in 1988 and its reconsideration of the issue in 2005 offers an illuminating illustration of the trend toward greater reference to international law. The splits on the Court also highlight the current debate over the propriety of using international standards and practice to analyze US law. Finally, the cruel and unusual punishment clause is particularly well suited to consideration of international standards, treaties, and opinion. Prior to discussing the juvenile death penalty cases, this chapter briefly explains some basic terminology of international law. It then examines the juvenile death penalty jurisprudence of the Court to situate the international law references within the various majority, concurring, and dissenting opinions. In this chapter, “states” will refer to the 50 states within the United States. Although it is common to refer to countries as states within international discourse, this chapter uses the term “nation” to avoid confusion. “International practice” refers to the predominate practice of nations, which may be dictated by domestic and/or international obligations. International law includes international treaties and customary law. Foreign law refers to the law of other nations as well as regional law, such as the law within the European Union. A nation may be a signatory or a party to a multilateral international treaty. A signatory is not bound by the provisions of the treaty as a party would be. Under the Vienna Convention on the Law of Treaties, however, a signatory nation must not undermine the “object and purpose” or the goal of the treaty (1980, Article 18). Within the United States, the executive branch has the power to sign the treaty; the Senate must ratify the treaty to make the United States a party. When the Senate ratifies international human rights treaties, it routinely attaches a package of reservations aimed at limiting the treaty’s effect within the United States. A reservation is a condition that purports to “exclude or to modify the legal effect of certain provisions of the treaty in their application” to the party (Article 2). The Senate attaches a “non-self-executing” reservation to human rights treaties, which the courts interpret as rendering the treaties legally unenforceable in the absence of implementing legislation. To date, the Court has not directly enforced a provision of an international human rights treaty; however, recent decisions, such as the line of cases regarding the juvenile death penalty, cite international practice or law. Thompson v. Oklahoma The Court first considered the constitutionality of the juvenile death penalty in 1988. In Thompson, the Court faced the question of whether the execution of   The Senate called this caveat a “declaration” but it seems to fall under the definition of a reservation. Regardless, the courts have not considered its label significant.

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a death sentence would violate the cruel and unusual punishment clause of the Eighth Amendment because the defendant was 15 years of age at the time of the crime. William Wayne Thompson was convicted of murder and sentenced to death, along with three older participants in the crime (Thompson, 1988, p. 819). The Oklahoma appeals court found that “once a minor is certified to stand trial as an adult, he may also, without violating the Constitution, be punished as an adult” (Thompson, 1988, p. 820). The Supreme Court vacated the state court’s judgment. The Court effectively held that the imposition of capital punishment on a defendant aged 15 years or less violates the constitutional right to be free from cruel and unusual punishment. International practice and treaties played a very minor role in the opinions of the plurality, concurrence, and dissent. To understand how international references fit in, one must understand the Court’s Eighth Amendment jurisprudence. A plurality of the Court, consisting of Justices Stevens, Brennan, Marshall, and Blackmun, held that the Constitution bars the execution of a person less than 16 years of age at the time of the offense (Thompson, 1988, p. 838). Despite the arguments of amici regarding international law, the plurality paid little heed to international treaties or practice in interpreting the Constitution. The plurality’s analysis focused on domestic indicators regarding “cruel and unusual” punishments. When evaluating whether a punishment violates the Eighth Amendment prohibition on cruel and unusual punishment, the Court is guided by the “evolving standards of decency that mark the progress of a maturing society” (Thompson, 1988, p. 821). The Court examines objective indicators of a national consensus to determine whether society considers a particular punishment to be cruel and unusual. To determine the existence of a national consensus, the Thompson Court looked to state legislation, the practices of sentencing juries, and the acceptable goals of punishment. According to the plurality opinion, state legislation reflected a national consensus that 16 years of age marks the line between child and adult. With regard to capital punishment, the states that expressly established a minimum age in the capital punishment statutes required the defendant to be at least 16 years of age at the time of the crime. Most state legislatures had not expressly set a minimum age of eligibility. Rather, many states had two sets of statutes: (1) juvenile transfer statutes (allowing juveniles to be tried as adults in certain circumstances); and (2) capital punishment statutes (allowing for the imposition of the death penalty under certain conditions). When the juvenile transfer statutes combined with capital punishment law to render a juvenile eligible for the death penalty, there was no reason to believe the state legislatures intended this effect (Thompson, 1988, pp. 824–9). In its canvass of state legislation to discern the evolving standards of decency, the plurality briefly referred to international practice. The plurality cited restrictions on capital punishment—and juvenile executions in particular—in the United Kingdom, New Zealand, West Germany, France, Portugal, the Netherlands, the Scandinavian countries and the Soviet Union (Thompson, 1988, p. 831). According to the plurality:

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The plurality justified the reference to non-US sources by citing prior cases in which the Court “recognized the relevance” of the international community in interpreting the cruel and usual punishment clause of the Eighth Amendment (Thompson, 1988, p. 830, n. 31). The plurality did not, however, refer to international instruments in the text of the opinion. In a footnote, it merely noted that “three major human rights treaties” explicitly ban juvenile capital punishment: the International Covenant on Civil and Political Rights (ICCPR); the American Convention on Human Rights (American Convention); and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva Convention on Civilians) (Thompson, 1988, p. 831, n. 34). At the time, the United States had signed the first two treaties and ratified the third. The plurality did not conclude that the United States must abide by these treaty provisions as a matter of law or even discuss them in any detail. Instead, the plurality focused on the behavior of juries in sentencing defendants who were minors at the time of the offense. It concluded that jury sentencing behavior suggested that juvenile death sentences were so rare as to verge on arbitrary and capricious. It then considered whether the imposition of the death penalty on juveniles furthered the leading goals of punishment: retribution and deterrence. Because juveniles are less culpable and less likely to make rational decisions considering future consequences of behavior than adults, neither goal is advanced by imposing the death sentence on those under the age of 16 (Thompson, 1988, pp. 831–8). The punishment is disproportionate and fails to fulfill a proper purpose. Thus, the evolving standards of decency reflected in state legislation and jury practices, combined with the inefficacy of the juvenile death penalty regarding the goals of punishment, render the juvenile death penalty unconstitutional. Although Thompson argued there was a consensus against executing offenders under the age of 18, the plurality limited its decision to the case before it and drew the line at less than 16 years of age. This plurality opinion garnered four votes, leaving Justice O’Connor to supply the crucial fifth vote by concurring only in the judgment. Justice O’Connor declined to join the plurality opinion because the evidence did not adequately support a national consensus against the juvenile death penalty. Rather than concluding that the lack of a proven national consensus means the juvenile death penalty is not cruel and unusual punishment, Justice O’Connor found a way to reach the same result as the plurality. According to Justice O’Connor, the heightened scrutiny required of capital punishment statutes indicated that state legislatures must expressly establish a minimum age for capital punishment (Thompson, 1988, pp.

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849–58). As a result, the defendants who were less than age 16 at the time of the crime cannot be executed “under the authority of a capital punishment statute that specifies no minimum age.…” (Thompson, 1988, p. 858). Justice O’Connor gave international treaty law slightly more emphasis than the plurality opinion, but she used it only to rebut the argument of the dissent. The dissent contended that the Court should have presumed that legislatures considered the effect of juvenile transfer statutes on eligibility for the death penalty. Justice O’Connor countered this argument by reference to actions taken by the Senate. Congress lowered the age for potential transfer in the federal juvenile transfer statute to 15, but there was no evidence it intended to lower the minimum age for capital punishment. To the contrary, the Senate ratification of the Geneva Convention on Civilians set a minimum age of 18 for the imposition of the death penalty during military occupation. The Senate also passed legislation setting an 18-year-old cutoff for capital punishment for drug offenses. These actions, according to Justice O’Connor, “tend to undercut any assumption” that Congress intended to authorize the death penalty for some 15-year-old felons when it revised the federal juvenile transfer statute (Thompson, 1988, p. 852). Similarly, it should not be presumed that state legislatures intended to alter eligibility for the death penalty. This survey of the plurality and concurring opinions illustrates that international practice, and particularly international treaty law, were given short shrift. Although the dissent responded to these references to international law, it also relegated the discussion to the sidelines of the debate, that is, the footnotes. First, the dissent (written by Justice Scalia and joined by Chief Justice Rehnquist and Justice White) dismissed any reliance on the US ratification of the Geneva Convention on Civilians. Because it applies only to limited circumstances, it could not shed any light on whether a national consensus existed against the juvenile death penalty for all crimes (Thompson, 1988, p. 866, n. 2). Second, the dissent argued that the plurality’s reliance on international practice was “totally inappropriate” in establishing a national consensus, emphasizing that “[w]e must never forget that it is a Constitution for the United States of America that we are expounding” (Thompson, 1988, p. 868, n. 4). Without a national consensus within the United States, the standards of other nations cannot be imposed through the Constitution—no matter how “enlightened the Justices of this Court may think them to be …” (Thompson, 1988, p. 868, n. 4). Stanford v. Kentucky A year after the decision in Thompson, the Supreme Court considered the juvenile death penalty as it applied to those over the 16-year-old cut-off established by the Thompson judgment. In Stanford v. Kentucky (1989), the Court held in a five to four decision that the imposition of capital punishment on those aged 16 or 17 at the time of their offenses is constitutional. The majority here consisted of the Thompson dissenters (Chief Justice Rehnquist and Justices Scalia and White) and Justice Kennedy, who did not participate in Thompson. Justice O’Connor

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concurred in most of the majority opinion and in the result. The Stanford dissenters previously formed the Thompson plurality (Justices Brennan, Marshall, Blackmun, and Stevens). The majority opinion touched on international issues only briefly in a footnote, while the dissent moved international law into the text to discuss it more fully. In an opinion authored by Justice Scalia, the plurality began with analysis of the “evolving standards of decency” and dropped a footnote emphasizing that “it is American conceptions of decency that are dispositive …” (Stanford v. Kentucky, 1989, p. 369, n. 1). Citing his own dissent in Thompson, Justice Scalia reiterated that the sentencing practices of other nations are not relevant to determine whether the sentence is accepted in the United States (Stanford, 1989, p. 369, n. 1). Based on US statutes and jury practice, the majority concluded that there was no national consensus against the execution of those who were 16 or 17 at the time of offense. According to the dissent, the execution of offenders aged less than 18 years at the time of the offense violated the Constitution. The dissent recognized that the constitutionality of punishment is informed by indicators of contemporary attitudes toward punishment such as state legislation and jury practice. In contrast to the majority, the dissent emphasized that the “choices of governments elsewhere in the world,” along with professional organizations, merit attention as indicators of acceptable practice in a civilized world (Stanford, 1989, p. 384). The dissent considered legislation in other nations as objective indicators of contemporary standards of decency and concluded that the world community overwhelmingly disapproved of the juvenile death penalty. Specifically, the dissent pointed to the widespread abolition (either de jure or de facto) of juvenile capital punishment—and capital punishment per se—in Western Europe and elsewhere (Stanford, 1989, p. 389). In addition, the dissent brought the reference to international treaties into the text. It noted that “three leading human rights treaties ratified or signed by the United States explicitly prohibit juvenile death penalties” (Stanford, 1989, p. 389). The dissent referred to the ICCPR and the American Convention, the latter of which the United States signed but did not ratify. It also cited the Geneva Convention on Civilians, which the United States ratified. The Geneva Convention on Civilians limits juvenile executions during military occupation. The dissent even referred to the non-binding resolutions or decisions of United Nations bodies that exclude from capital punishment those under the age of 18 at the time of offense (Stanford, 1989, p. 390, n. 10). As in Thompson, the group of four justices now writing as dissenters did not claim the United States must comply with these treaties. International practice and international treaties merely aided in interpreting the evolving standards of decency. The dissent stated: Together, the rejection of the death penalty for juveniles by a majority of the States, the rarity of the sentence for juveniles … the decisions of respected organizations in relevant fields that this punishment is unacceptable, and its

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rejection generally throughout the world, provide … a strong grounding for the view that it is not constitutionally tolerable that certain States persist in authorizing the execution of adolescent offenders. (Stanford, 1989, p. 390)

This “view” was not dispositive; it was considered in conjunction with the failure of the juvenile death penalty to meet the other Eighth Amendment requirements of proportionality and purpose. As a result of all these factors, the dissent concluded it is unconstitutional to impose a death sentence for acts committed under the age of 18. Roper v. Simmons In 2005, the Supreme Court revisited “for the second time in a decade and a half” the issue in Stanford: “whether it is permissible under the Eighth and Fourteenth Amendments to the Constitution of the United States to execute a juvenile offender who was older than 15 but younger than 18 when he committed a capital crime” (Roper, 2005, pp. 556–7). In an opinion authored by Justice Kennedy (who had been in the majority in Stanford), the Court determined (five to four) that the objective indicators of national consensus had changed since Stanford. Moreover, the Court found strong evidence that the death penalty was unconstitutionally disproportionate when imposed on those under the age of 18. In declaring the juvenile death penalty unconstitutional, the Court devoted an entire part (several pages) of its opinion to justifying the confirmatory power of international standards. The use of international human rights law in Roper is controversial. The Court referred to the Convention on the Rights of the Child (CRC), a treaty that the United States has refused to ratify since its initial signing over a decade ago. The Court also cited the ICCPR, a treaty to which the United States has specifically reserved the right to execute offenders who were under the age of 18 at the time of the capital crime. Although the Court did not find this law binding on the United States, it found that international human rights law and practice confirmed that the juvenile death penalty is cruel and unusual punishment. This provoked a virulent dissent from Justice Scalia (joined by Chief Justice Rehnquist and Justice Thomas), who contended that “[w]hat these foreign sources ‘affirm’ … is the Justices’ own notion of how the world ought to be, and their diktat that it shall be so henceforth in America” (Roper, 2005, p. 628). To analyze the national consensus regarding execution of 16- or 17-year-old offenders, the Court reconsidered Stanford in light of the more recent decision in Atkins v. Virginia (2002). In Atkins, the Court held that the Eighth Amendment cruel and unusual punishment clause prohibits the execution of a mentally retarded offender. In so doing, the Court reversed its position in Penry v. Lynaugh (1989), where the Court held that the Constitution did not require a categorical exemption from the death penalty for the mentally retarded (Roper, 2005, p. 563). The Atkins Court determined that the contemporary standards of decency had changed so much that a national consensus now existed against the practice (Roper, 2005, p.

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563). The Atkins Court noted that international opinion weighed against executing the mentally retarded (Atkins, 2002, p. 316, n. 21). Similarly, the Court in Roper found that the national consensus had evolved vis-à-vis the juvenile death penalty, as confirmed by international law and practice. The Roper majority of Justices Kennedy, Stevens, Souter, Ginsburg, and Breyer first referred to international law while reconsidering the evidence of national consensus. The evolving standards of decency were reflected by state legislation abolishing the juvenile death penalty, regardless of prior Senate actions that might preserve it. In an attempt to refute the finding of a national consensus against the juvenile death penalty, the State of Missouri cited the post-Stanford ratification of the ICCPR. The Senate attached a reservation that conditioned its agreement to the treaty with the stipulation that the prohibition on the juvenile death penalty not apply to the United States. The Court rejected the argument that the reservation preserving the death penalty for those under the age of 18 impeded a finding of national consensus. The Court first pointed out that the reservation was adopted in 1992. Second, it noted that Congress subsequently set 18 years of age as the threshold for eligibility for the Federal Death Penalty Act. As a result, the reservation “provides minimal evidence that there is not now a national consensus against juvenile executions” (Roper, 2005, p. 567). In addition to a national consensus against the juvenile death penalty, evidence supported a finding that the death penalty is disproportionate when applied to juveniles. Building on Atkins, the Court held that juveniles are like the mentally retarded in that their reduced culpability renders the traditional justifications of retribution and deterrence suspect (Roper, 2005, pp. 571–2). Following the logic of Thompson, the Court extended the ban on the juvenile death penalty to 18 years of age because this is the line society draws between adulthood and childhood. Finally, the Court asserted that its determination on disproportionality was supported by “the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty” (Roper, 2005, p. 575). The Court first justified its consideration of non-US sources and then explained how various treaties and international practice support the ban on the juvenile death penalty. From Trop v. Dulles (1958) to Atkins, the Court considered the laws of other nations and international authorities as “instructive” when interpreting the cruel and unusual punishment clause (Roper, 2005, p. 575). The plurality in Trop noted that “[t]he civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for a crime” (Roper, 2005, p. 575). More recently in Atkins, the Court recognized that the execution of the mentally retarded is almost universally disapproved (Roper, 2005, p. 575). In Part IV of the Roper opinion, the Court referred to several international human rights treaties. First, it cited the CRC, which prohibits capital punishment for crimes committed by those under 18. It noted that the CRC has been ratified universally except by the United States and Somalia. In addition, no nation has attempted to reserve the right to execute juveniles when ratifying the CRC (Roper,

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2005, p. 576). Second, it referred again to the ICCPR, which the Senate ratified with a reservation as discussed above. Third, it noted the American Convention, a treaty that the United States signed. Fourth, it cited the African Charter on the Rights and Welfare of the Child, which also prohibits the juvenile death penalty (Roper, 2005, p. 576). In addition, the Court referred to international practice. It noted that of the eight nations that have executed juvenile offenders since 1990, the United States is the only country that had not abolished or disavowed the juvenile death penalty. In addition, the Court cited the practice of the abolitionist United Kingdom as particularly relevant given the historic ties between the two nations (Roper, 2005, p. 577). Finally, the Court clarified that it was not treating international opinion as controlling, but merely confirmatory. The Court stated: It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom. (Roper, 2005, p. 578)

In other words, the opinion of the world community