The lawmaking family.

• Author: Ben-Asher, Noa
• Position: Introduction through II. A Shift in Supremacy: From the Family to the State, p. 363-400

Increasingly there are conflicts over families trying to "opt out" of various legal structures, especially public school education. Examples of opting-out conflicts include a father seeking to exempt his son from health education classes; a mother seeking to exempt her daughter from mandatory education about the perils of female sexuality; and a vegetarian student wishing to opt out of in-class frog dissection. The Article shows that, perhaps paradoxically, the right to direct the upbringing of children was more robust before it was constitutionalized by the Supreme Court in Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925). In fact, the position of U.S. courts on opting-out conflicts has shifted dramatically over the twentieth century. In the early twentieth century, parents mostly prevailed in such conflicts. Today, the state typically prevails. Contemporary conflicts often involve public-school management of health, sexuality, and liberal development of students through surveys, nudges, and mandatory readings. When these techniques infringe on familial liberty, lawmakers lack conceptual tools to respond. A new understanding of familial liberty is needed.

This Article offers that understanding. The approach here is based on the idea of family laws. Family laws are legal systems that families create or adopt to govern their day-to-day lives. These rules exist independently of state laws, and can be religious, such as Amish or Buddhist family laws, or secular, such as feminist or vegetarian family laws. The Article identifies three basic characteristics of family laws: They are (1) general and articulable; (2) grounded in religion, ethics, or morality; and (3) perceived as binding by members of a particular family. The Article argues that, with some limiting principles, lawmaking families should possess a liberty to opt out of programs and policies that conflict with a family law. Through an examination of three different types of family laws--religious, feminist, and vegetarian--the Article demonstrates how the proposed approach would empower existing lawmaking families. Almost a century has passed since the Supreme Court declared the liberty of parents to educate their children in Meyer v. Nebraska. It is time to breathe new life into this moribund liberty by empowering the Lawmaking Family.

INTRODUCTION I. THE CONFLICTING AFFILIATIONS OF CHILDREN A. The Supremacy of the State B. The Supremacy of the Family II. A SHIFT IN SUPREMACY: FROM THE FAMILY TO THE STATE A. The Common-Law Era: The Supremacy of the Family 1. Main Principle: No State Intervention in the Family 2. The Broad Scope of Protected Familial Interests 3. Conclusion: The Service-Providing State B. The Constitutional Era: The Supremacy of the State 1. Main Principle: No Family Intervention in the State a. Health and Sexuality b. Social Values i. Opting Out of Dress Codes and Grooming ii. Opting Out of Liberal Education 2. The Narrow Scope of Protected Familial Interests 3. Conclusion: The Governing State C. Legislative Discontent III. EMPOWERING THE LAWMAKING FAMILY A. What are "Family Laws"? 1. General and Articulable Norms 2. Grounded in Religion, Ethics, or Morality 3. Perceived by Family Members as Binding B. Limiting Principles 1. Familial Dissent 2. Violent Family Laws 3. Non-Invasiveness C. Implications of the Liberty to Opt Out 1. Religious Family Laws 2. Feminist Family Laws 3. Vegetarian Family Laws CONCLUSION INTRODUCTION

In January of 2012, the New Hampshire legislature passed a bill that grants families the right to exempt a child for any reason from any program offered by a public school. (1) With this legislation, New Hampshire joined other state legislatures in recognizing a familial right that this Article calls "the liberty to opt out." (2) Examples of opting-out conflicts include a father seeking to exempt his son from health education classes because he wants to educate him regarding health matters at home; (3) a mother seeking to exempt her daughter from mandatory education about the perils of female sexuality with which she morally disagrees; (4) a vegetarian parent wishing to avoid exposing her children to teachings about the nutritional benefits of eating animals; (5) and a Native-American father seeking to exempt his son from a mandatory short-hair policy for boys because it violates his tradition. (6) These diverse and sharply felt conflicts exemplify the jurisprudence of opting out.

The current legal framework for disputes over opting out stems from lower court interpretations of Meyer v. Nebraska, (7) Pierce v. Society of Sisters* and Wisconsin v. Yoder (9) In these cases the Court recognized and enforced the liberty of parents to direct the upbringing of their children. This Article shows, however, that despite this constitutional right, families in the past four decades have typically failed when trying to opt out of programs and policies of public education. The judicial deference to schools, as reflected by the adoption and application of the "coercion standard," signals the decline of the familial liberty to opt out. Courts have ruled in favor of parents in opting-out disputes only where a program or policy was so coercive that the family's "entire way of life" was threatened. (10)

Should families possess broad opting-out powers, such as those recently enacted in New Hampshire, or narrow ones, as courts in the past four decades have consistently held? This Article proposes a middle way. The proposed alternative centers on what I call "family laws." We know that laws made by courts and legislators shape families, but a reverse phenomenon is often overlooked: families also make laws. (11) Family laws are legal systems that families create or adopt to govern their day-to-day lives. (12) They exist independently of state laws, and can be religious, such as Amish or Buddhist family laws, or secular, such as feminist or vegetarian family laws.

While the right of insular communities to sustain separate ways of life has received judicial and scholarly attention, (13) the idea that the smaller unit of the family also possesses lawmaking capacities, has not. Moreover, the focus on insular communities may be misleading. Some families, especially religious ones, do adopt laws within insular communities. (14) But other families may create and adopt family laws independent of such communities. For example, a family may adopt a feminist family law that requires equal child-care duties by parents, or a vegetarian family law that prohibits killing animals. Those feminist and vegetarian family laws can emerge outside of any identifiable community. They nonetheless deserve legal protections. This Article proposes that when a family law is at stake, a dissenting family should enjoy a liberty to opt out of mandatory educational programs or policies that conflict with the established family law. The liberty to opt out should be broad but not absolute; the Article outlines some of its limiting principles. (15)

The remainder of this Article has three Parts. Part I introduces the core dilemma. Most children are at the same time affiliated both with families, of which they are current members, and with the state, of which they are future adult citizens. This Part examines how liberal theories have treated conflicts involving this dual identity of children. While some theorists have prioritized the child's identity as a citizen of the liberal state, others have argued for stronger parental authority and for a more meaningful parental right to direct the upbringing of children.

Part II examines the liberty to opt out of public education before and after the Supreme Court cases of Meyer and Pierce}6 This Part shows that, perhaps paradoxically, the right to direct the upbringing of children was more robust before it was constitutionalized. In the era before Meyer and Pierce, judicial treatment of opting-out disputes had three main features. First, courts framed the opting-out conflict as an attempt by teachers to dictate the curriculum. Second, opting-out claims were usually successful, and this was true regardless of whether those claims were grounded in religion. Third, courts viewed public schools primarily as service providers, rather than as governmental entities authorized to manage health and liberal education. By contrast, since the Supreme Court constitutionalized the right to direct the upbringing of children in Meyer and Pierce, that right has eroded. Since then, the liberty to opt out has changed along all three dimensions that characterized the earlier doctrine. First, courts now frame the conflict as an attempt by parents to dictate the curriculum. Second, religion is very significant for the success of an opting-out claim, to the extent that secular justifications are readily dismissed. Third, courts now view public schools not as mere service providers, but as authoritative entities charged with governing the health and values of the population.

Part III proposes a new approach to resolve opting-out disputes. This approach is based on a three-part test to assess whether a "family law" is in place. A family law should be: (1) general and articulable; (2) grounded in religion, ethics, or morality; and (3) perceived as binding by members of a particular family. This Part argues that the existence of a family law should trigger a liberty to opt out of aspects of public school education, but that this liberty is subject to some limiting principles. Finally, the Article applies the new proposal to past and future opting-out conflicts involving three types of family laws: religious, feminist, and vegetarian.

1. THE CONFLICTING AFFILIATIONS OF CHILDREN

   Antigone had to choose. She could bury her beloved brother who had betrayed their country, or she could obey the command of the king to leave the traitor's flesh to rot. (17) Most children are simultaneously future adult citizens of the state and members of...