The lawmaking family.

• Author: Ben-Asher, Noa
• Position: III. Empowering the Lawmaking Family through Conclusion, with footnotes, p. 400-420

3. EMPOWERING THE LAWMAKING FAMILY

The rules and principles of justice, the formal institutions of the law, and the conventions of a social order are, indeed, important ... ; they are, however, but a small part of the normative universe that ought to claim our attention.

--Robert Cover (237)

It is time for a more nuanced discussion of familial liberty. Ideas about liberty and coercion in Meyer and Pierce are anachronistic today. School governance has changed. Express prohibitions, such as those challenged in Meyer and Pierce, rarely arise in contemporary disputes. New techniques of governance include managing the health, sexuality, and liberal development of students through surveys, nudges, and mandatory readings. This Part offers schools, legislators, and courts a new framework to limit these techniques. This framework is based on a concept of "family laws."

1. What are "Family Laws"?

   We have seen that scholars and courts have so far understood opting-out conflicts as questions of authority or supremacy, and that this has led to binary legal outcomes. In the common-law era, courts viewed the family as supreme, and the teacher was understood to be primarily a service provider. By contrast, in the past four decades, courts have viewed the state as legitimately governing the health and values of its future citizens. But what if instead of asking who should have greater authority, we ask what is at stake for the dissenting family?

   Consider the following example. A vegetarian family seeks to exempt a child from a nutrition class in which the killing of animals is treated uncritically. We do not yet know the reason for the family's request. The family could be trying to avoid exposure to materials that violate a vegetarian norm of non-violence towards animals. But the family could also be seeking to exempt the child because the child has a hard time waking up for early morning classes or because the family does not like the teacher's teaching style or because the child thinks it's icky to dissect a frog. Should it matter if the family's request to opt out of the mandatory nutrition class is based on a familial norm, a child's habits, a mere preference, or something else? Under some of the new legislative opting-out proposals, it would not matter; this Part argues that it should.

   Our religious, ethical, and moral convictions are central to our existence and our understanding of who we are, in ways that preferences and habits are not. This Article offers a theory that would help schools, courts, and legislators systematize and empower these zones of familial lawmaking in the context of opting-out disputes.

   Jurists and legal philosophers have been deciphering concepts of "law" and "legality" for decades. (238) But laws and legalities generated by formal state institutions are only "a small part of the normative universe that ought to claim our attention." (239) There are many kinds of familial norms, but not all of them are included in what I call "family laws." (240) A family norm should be treated as a family law if it is: (1) general and articulable; (2) grounded in religion, ethics, or morality; and (3) perceived as binding by members of a particular family. (241) When these three conditions are satisfied, a family law is in place. I will explain each part of the test in turn.

   1. General and Articulable Norms

      To qualify as a family law, a norm should be specific enough to prescribe or prohibit action and general enough to be applicable in future situations. (242) A standard such as "be nice to others" is probably too vague to be considered a family law because it does not convey enough specificity about what actions must be undertaken to comply. Likewise, a rule that by its own terms applies only occasionally, such as "we sometimes recycle because we care about the environment," is not general enough to constitute a family law.

      Family laws may regulate a variety of activities and behaviors. They could regulate, for instance, how family members contract, or how they fulfill duties of love and care towards each other. Family laws could also guarantee equality among family members. Consider, for example, a rule that permits family members to enter into agreements with other family members regarding household duties ("I will clean the dishes now if you change the baby's diaper later"), but prohibits such agreements if they involve monetary exchange ("I will pay you five dollars if you change the baby's diaper"); or a tort-like rule that requires family members to warn other family members about potential dangers no matter how remote or unlikely to occur; or an antidiscrimination rule that prohibits all gender stereotyping in the family. Of course, the point is not that the existence of an articulable family norm should result in the enforcement of idiosyncratic contract and tort rules by courts, but rather that families create and live by legal norms regardless of their enforceability by formal institutions of law. Families sometimes inhabit a legal universe that is not coextensive with that of the state. In opting-out disputes, families are often asking that they not be forced to participate in programs or activities that violate their family laws.

   2. Grounded in Religion, Ethics, or Morality

      The second characteristic of a family law is that it is grounded in ethical, moral, or religious principles. (243) As described in Part II, religious "ways of life" currently receive greater protection than secular ones. (244) Thus, a parent who today offers a secular justification for opting-out of a program or policy, as in Blau (245) (opposing a dress code on secular grounds) and Herndon (246) (opposing mandatory community service), stands a lesser chance of success than a parent who offers a religious justification for opting out, as in Needville (241) (successfully opposing a grooming policy on religious grounds) and Arnold (248) (successfully opposing school intervention in teen pregnancy on religious grounds).

      One of the novelties of this alternative scheme is that when a family norm is general and articulable, it should not matter whether it is religious or secular. This is because what religious values mean to some families, secular values may mean to others. The state grants legal protection to religious values because of their significance to families, not because they are inherently true (that, state law has no tools to assess). Non-religious ethical or moral systems deserve similar respect. In constitutional terms, it should not matter whether a family law is invoked under the Free Exercise Clause (as in Yoder) or the Due Process Clause (as in Meyer and Pierce) 249 A religious family prohibition could require, for example, that "no family member eat on Yom Kippur," whereas a secular prohibition could require that "no family member eat or wear animal products." A religious obligation could require that "all family members pray five times a day," and a secular obligation could require that "all family members must recycle plastic containers to protect mother earth." Both types of prohibitions and obligations can qualify as family laws, if they meet the criteria set out here.

      A family preference or habit is distinguishable from a family law. A family may gravitate toward Blues over Bach; Earl Gray over espresso; Winnie the Pooh over Alice in Wonderland; Thai food over Italian food; or as in Blau, "nice clothes" over a school uniform. (250) Such preferences and habits should not be treated as family laws for the purpose of opting-out disputes. Individuals and family members suffer a special kind of injury when religious, moral, or ethical convictions are disregarded by the state. This harm is distinguishable from harms that are caused when a mere preference or habit is disregarded, and is thus worthy of the special attention of lawmakers proposed here.

   3. Perceived by Family Members as Binding

      The final characteristic of a family law is that it should be understood by family members as binding. (251) It is not enough that family members follow a certain rule. They must do so because they feel bound by it, such that a family member who breaches a family law can be viewed as blameworthy or lawless. (252) In Yoder, as Robert Cover points out, if the Amish families had followed the Amish principles only because it was enjoyable to do so, they would not have disobeyed any principle if they had abandoned the Amish way of life, and thus "they could not hold someone blameworthy--lawless--were he to give in." (253) Likewise, in A.A. 254 the Fifth Circuit granted a Native American family an exemption from a grooming policy because the child and the family demonstrated a sincere religious belief in wearing the boy's hair uncovered and visibly long. (255) If the Native American plaintiff in A.A. had followed the haircutting principles typical among Native Americans only because it was pleasurable or aesthetically pleasing to do so, he would probably not have prevailed in court and those principles would not constitute a family law as the term is used here.

      The same principle should apply when the family law at stake is based on secular ethics or morality. (256) Consider, for instance, the plaintiff-mother in Miller (257) who refused to expose her teenage daughter to a program filled with gender-stereotyping messages about promiscuous female sexuality. (258) To establish a family law here, the mother would have to show not only that her opposition to gender stereotyping stems from an ethical commitment to a set of feminist principles, but also that by sending her daughter to such a learning environment she would in fact compromise her family law of gender equality. That is, that doing so would make her feel lawless or blameworthy.

      Or consider a secular thank-you-note-writing family. Thank-you notes are obviously extremely unlikely to trigger opting-out disputes, (259) but the example is nonetheless conceptually...