20.EILR - Smolin.overcoming Religious Objections
20.EILR - Smolin.overcoming Religious Objections
20.EILR - Smolin.overcoming Religious Objections
David M. Smolin*
INTRODUCTION
grateful to the organizers of the “What’s Wrong with Children’s Rights?” conference for allowing me to
participate, and I very much enjoyed the opportunity to learn from the conference participants and audience
comments and questions. I would like to acknowledge the research assistance of Lee Ellen Bagley and Cheryl
Howell Oswalt.
1 Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3 [hereinafter CRC].
2 Johan D. van der Vyver, American Exceptionalism: Human Rights, International Criminal Justice, and
National Self-Righteousness, 50 EMORY L.J. 775, 778 (2001) (noting that United States and Somalia are the
only nations that have not ratified the CRC).
3 See, e.g., Amnesty International USA, Children’s Rights, Convention on the Rights of the Child,
4 David M. Smolin, Religion, Education, and the Theoretically Liberal State: Contrasting Evangelical
and Secularist Perspectives, 44 J. CATH. LEGAL STUD. 99, 101–02 (2005). For definitional and statistical
issues related to the term “evangelical,” see id. at 99–102.
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5 See generally ALLEN D. HERTZKE, FREEING GOD’S CHILDREN: THE UNLIKELY ALLIANCE FOR GLOBAL
HUMAN RIGHTS (2004); GARY A. HAUGEN, GOOD NEWS ABOUT INJUSTICE (1999).
6 See HERTZKE, supra note 5, at 33–35.
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political views and both political parties over several decades suggests that
there is a natural congruence between many forms of American Protestant
evangelicalism and human rights activism. For Roman Catholics, the approach
of the late Pope John Paul II has been quite significant. Despite the church’s
well-publicized conflicts with some human rights activists over issues such as
abortion and contraception, John Paul II deeply embraced the language of
human rights to express the church’s concern for human dignity and its
activism on behalf of the poor and vulnerable. Thus, Roman Catholics
throughout the world, including the United States, have become habituated to
the ideals and language of the human rights movement, even when there have
been sharp disagreements about the import of those ideals for particular
issues.7
This largely positive picture of the relationship between theologically-
conservative Christianity and the human rights movement does not capture all
nuances. Some evangelicals are still influenced by anti-United Nations
perspectives that have their roots in dispensational Protestant fundamentalism,
and these perspectives sometimes carry over to forge a deep distrust of
“international human rights.”8 However, efforts to understand contemporary
evangelicalism, or even fundamentalism, primarily through the lens of these
shrinking minority elements are not productive. An accurate account of
religious opposition to the CRC must account for the combination of human
rights activism and opposition to the CRC, which is prevalent in much of the
conservative religious community in the United States.
7 See, e.g., Mary Ann Glendon, What Happened at Beijing, FIRST THINGS, Jan. 1996, at 30, available at
http://www.firstthings.com/ftissues/ft9601/articles/glendon.html.
8 Cf. Susan H. Bitensky, Educating the Child for a Productive Life, in CHILDREN’S RIGHTS IN AMERICA
167, 182 (Cynthia Price Cohen & Howard A. Davidson eds., 1990) (referring to “fundamentalist” curriculum
used in some private religious schools which evidences hostility toward the United Nations).
9 See U.S. CONST. amend. XIV.
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century, most of the important content of the Bill of Rights had been held
applicable to the states through the process of selective incorporation.10
The incorporation battle serves as a rough analogy to the situation with the
CRC. While advocates for the CRC have argued for ratification of the entire
document, and opponents have opposed ratification, the United States has been
involved in a process of ratifying and implementing critical parts of the CRC
on an article-by-article basis. The process has been facilitated by the central
role of the CRC in the children’s rights movement. The CRC serves as a kind
of umbrella charter whose broad terms are filled out and implemented, often by
additional treaties focused on particular issues. The failure of the United States
to ratify the overall charter (the CRC) has not stopped it from ratifying the
treaties that elaborate upon various articles of the CRC. Ironically, this process
of article-by-article implementation of the CRC through other treaties has
occurred without any real political controversy within the United States and
often with the active support of conservative religious communities. The
support of the conservative religious communities for these children’s rights
treaties has been consistent with their broader support for human rights during
this period.
The treaties involved in this process include the Worst Forms of Child
Labour Convention,11 the Optional Protocol to the Convention on the Rights of
the Child on the Involvement of Children in Armed Conflict,12 the Optional
Protocol to the Convention on the Rights of the Child on the Sale of Children,
Child Prostitution and Child Pornography,13 the Protocol to Prevent, Suppress
and Punish Trafficking in Persons, Especially Women and Children, of the
United Nations Convention Against Transnational Organized Crime,14 the
10 For a short summary of the constitutional debate over incorporation, see ERWIN CHEMERINSKY,
of Child Labour, June 17, 1999, 2133 U.N.T.S. 161 [hereinafter Worst Forms of Child Labour Convention].
12 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in
Armed Conflict, G.A. Res. 263, U.N. GAOR, 54th Sess., Annex I, U.N. Doc. A/RES/54/263 (May 25, 2000)
(entered into force Feb. 12, 2002) [hereinafter Optional Protocol on the Involvement of Children in Armed
Conflict].
13 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child
Prostitution and Child Pornography, G.A. Res. 263, U.N. GAOR, 54th Sess., Annex II, U.N. Doc.
A/RES/54/263 (May 25, 2000) (entered into force Jan. 18, 2002) [hereinafter Optional Protocol on the Sale of
Children, Child Prostitution and Child Pornography].
14 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,
Supplementing the United Nations Convention Against Transnational Organized Crime, G.A. Res. 55/25,
Annex II, U.N. GAOR, 55th Sess., Supp. No. 49, at 60, U.N. Doc. A/45/49 (2001) [hereinafter 2001
Trafficking Protocol].
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U.N.T.S. 89. This convention was implemented in the United States by the International Child Abduction
Remedies Act (ICARA), 42 U.S.C. §§ 11601–11610 (2000).
17 CRC, supra note 1, art. 11.
18 Hague Convention on the Civil Aspects of Child Abduction, supra note 16; see also CRC, supra
note 1.
19 CRC, supra note 1, arts. 20–21.
20 Id.
21 Hague Convention on Intercountry Adoption, supra note 15.
22 See U.S. Dep’t of State, Hague Convention on Intercountry Adoption and the Intercountry Adoption
received in the Senate in August 1999; and the United States Senate ratified the treaty in November 1999. The
Library of Congress, Legislative Actions on the Convention for the Elimination of the Worst Forms of Child
Labor, http://thomas.loc.gov (follow “Treaties” hyperlink; then search “Treaty Number” for “106-5”) (last
visited Apr. 2, 2006).
26 CRC, supra note 1, art. 33.
27 See Worst Forms of Child Labour Convention, supra note 11.
28 CRC, supra note 1, art. 34.
29 See Worst Forms of Child Labour Convention, supra note 11; Optional Protocol on the Sale of
Children, Child Prostitution and Child Pornography, supra note 13; 2001 Trafficking Protocol, supra note 14.
30 CRC, supra note 1, art. 35.
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Optional Protocol to the Convention on the Rights of the Child on the Sale of
Children, Child Prostitution and Child Pornography; and the Protocol to
Prevent, Suppress and Punish Trafficking in Persons, Especially Women and
Children, of the United Nations Convention Against Transnational Organized
Crime.31 Both the Hague Convention on Intercountry Adoption and the Hague
Convention on the Civil Aspects of Child Abduction also address the
abduction, sale, and trafficking of children.32
31 See Worst Forms of Child Labour Convention, supra note 11; Optional Protocol on the Sale of
Children, Child Prostitution and Child Pornography, supra note 13; 2001 Trafficking Protocol, supra note 14.
32 See Hague Convention on the Civil Aspects of Child Abduction, supra note 16; Hague Convention on
of Child Abduction, supra note 16; Hague Convention on Intercountry Adoption, supra note 15; Optional
Protocol on the Sale of Children, Child Prostitution and Child Pornography, supra note 13; 2001 Trafficking
Protocol, supra note 14.
36 CRC, supra note 1, art. 38.
37 See Optional Protocol on the Involvement of Children in Armed Conflict, supra note 12.
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prohibit execution of individuals under the age of eighteen at the time of their capital crimes).
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41 See, e.g., CHRISTOPHER J. KLICKA, HOME SCH. LEGAL DEF. ASS’N, THE UN CONVENTION ON THE
RIGHTS OF THE CHILD: THE MOST DANGEROUS ATTACK ON PARENTS’ RIGHTS IN THE HISTORY OF THE UNITED
STATES (Nov. 1, 1999), http://www.hslda.org/docs/nche/000000/00000020.asp?PrinterFriendly=True; HOME
SCH. LEGAL DEF. ASS’N, AN ANALYSIS OF THE UNITED NATIONS COMMITTEE ON THE RIGHTS OF THE CHILD
CONCLUDING OBSERVATIONS (Nov. 11, 1999), http://www.hslda.org/docs/nche/000000/00000022.asp?Printer
Friendly=True; HOME SCH. LEGAL DEF. ASS’N, OPPOSE THE UN CONVENTION ON THE RIGHTS OF THE CHILD
(Nov. 1, 1999), http://www.hslda.org/docs/nche/000000/00000021.asp?PrinterFriendly=True; MICHAEL P.
FARRIS, HOME SCH. LEGAL DEF. ASS’N, THE AMERICAN BAR ASSOCIATION AND THE UN CONVENTION ON THE
RIGHTS OF THE CHILD: HOW WILL AMERICAN LIVES BE CHANGED BY RATIFICATION OF THE UNITED NATIONS
CONVENTION ON THE RIGHTS OF THE CHILD? (Nov. 1, 1996), http://www.hslda.org/docs/nche/000000/
00000023.asp?PrinterFriendly=True; LT. COL. ROBERT L. MAGINNIS, FAMILY RES. COUNCIL, PROMOTING A
POSITIVE VISION OF THE FAMILY (Sept. 1, 2002), http://www.frc.org/get.cfm?i=PD02I1&v=PRINT. For some
broadly traditionalist or neo-conservative objections see Kay S. Hymowitz, U.N. Fairy Tales About Children,
CITY J., May 7, 2002, http://www.city-journal.org/html/eon_5_7_02kh.html; Bruce C. Hafen & Jonathan O.
Hafen, Abandoning Children to Their Rights, FIRST THINGS, Aug./Sept. 1995, at 18, available at
http://www.firstthings.com/ftissues/ft9508/hafen.html.
42 In stating that there are some legitimate concerns regarding the CRC, I am not endorsing all of the
statements and objections regarding the CRC expressed by various religious organizations and individuals,
such as those cited in note 41. At the same time, my view that the valid concerns with the CRC can be
addressed through RUDs is my own view and does not necessarily represent the views of any other persons or
organizations.
43 CRC, supra note 1, art. 5.
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parental role to that of giving advice. This implication can be found in the
language which characterizes parental responsibility and rights as providing
“appropriate direction and guidance” to the child’s exercise of rights.44 To
some, this language appears to define parental rights as that of simply advising
and facilitating the exercise of decisional autonomy by children.
Reducing parental responsibilities and duties to facilitating the choices of
children would be contrary to the common understanding of children’s rights
and the overall structure of the CRC. Most children’s rights are not couched in
terms of the child’s right to make choices. Thus, the rights included in the
CRC are commonly divided into provision, protection, and participation rights.
Provision and protection rights are not primarily related to the question of the
child’s autonomy or even participation, but rather relate to what others must do
to provide for and protect children. Given the CRC’s understanding that the
family is the “natural environment for the growth and well-being of . . .
children,”45 the first-line providers of provision and protection for the child are
the parents and other family members. The parental roles of providing for the
needs of the child and protecting the child from harm often require parents to
act contrary to the immediate desires and will of the child and are not
effectuated primarily through offering the child choices. Protecting the child
often requires the parent to remove options and choices from the child.
Similarly, the common parental provision of housing, food, shelter, and
education to children is not well described as mere advice regarding choices.
The lack of fit of this “advice” model to the parental role extends even as to
the third group of children’s rights, often termed “participation” rights.
Participation rights frequently constitute merely the right to be heard in regard
to important decisions affecting an older child, rather than constituting the
autonomy right to make decisions. Participating in decisions is not the same as
making them; yet, the language of Article 5 could be read to imply that the
primary parental role is to provide “direction and guidance”—meaning
advice—to children as they exercise autonomy rights.46
Because Article 5 purports to define the respect that States Parties must
accord to parental rights and responsibilities, its awkward and ambiguous
language can be viewed as distorting the Convention’s entire treatment of
children’s rights. If the Convention mischaracterizes parental rights and
44 Id.
45 Id. pmbl.
46 Id. art. 5.
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47 See Bruce C. Hafen & Jonathan O. Hafen, Abandoning Children to Their Autonomy: The United
Nations Convention on the Rights of the Child, 37 HARV. INT’L L.J. 449, 490–91 (1996)
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51 See generally David M. Smolin, A Tale of Two Treaties: Furthering Social Justice Through the
Redemptive Myths of Childhood, 17 EMORY INT’L L. REV. 967, 973 n.13 (2003) (explaining division of the
CRC into protection, provision, and participation rights).
52 Alison Dundes Renteln, Who’s Afraid of the CRC: Objections to the Convention on the Rights of the
C. Article 19
The Committee on the Rights of the Child has repeatedly interpreted
Article 19’s mandate to protect children from “all forms of physical or mental
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the Child: Ethiopia, ¶ 39, U.N. Doc. CRC/C/15Add.144 (Feb. 21, 2001).
63 Id.
64 See generally ROBERT D. GOLDSTEIN, CHILD ABUSE AND NEGLECT: CASES AND MATERIALS 47–94
(1999); see also Ingraham v. Wright, 430 U.S. 651 (1977) (addressing corporal punishment in the public
schools and the U.S. Constitution).
65 See Wolraich et al., Guidance for Effective Discipline, 101 PEDIATRICS 723 (1998); Am. Acad. of
67 Cynthia Price Cohen, A Guide to Linguistic Interpretation of the Convention on the Rights of the
3. Corporal Punishment
Some within the conservative religious community perceive a duty to
employ corporal punishment with children in some circumstances, while a
broader group believes that parents possess the authority and discretion to
employ reasonable corporal punishment. These religious beliefs exist within a
broader society where the vast majority of parents, of whatever religious belief,
sometimes employ corporal punishment. Thus, the religious beliefs of many
Americans coupled with their broader beliefs and practices serve as a barrier to
ratification of an international instrument that proscribes all forms of corporal
punishment by parents. By extension, a similar but weaker barrier exists to an
international obligation to proscribe all corporal punishment within schools.
The practice of corporal punishment within the United States is not
unusual. Among many of the countries that have ratified the CRC, corporal
punishment of children is commonplace. Thus, the broad ratification of the
CRC, coupled with the Committee’s interpretation of the CRC, do not
represent an international consensus on the practice of corporal punishment.
Given the legalistic culture of the United States it seems best to handle the
question of corporal punishment through an explicit understanding. This
understanding would state that the United States does not understand the CRC
as a whole, nor Article 19 in particular, to require the proscribing of all
corporal punishment within the contexts of family and school. It seems
permissible to state this view as an understanding, rather than a reservation,
because even the Committee’s consistent position to the contrary does not
represent a binding principle of international law.
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D. Article 29
Commentators have noted a potential conflict between Article 29 of the
CRC and current constitutional doctrine within the United States. Article 29
limits the right of parents and others to educate children in private school by
requiring that all such schools support both the charter and principles of the
United Nations and a list of specific values and ideals. By contrast, Supreme
Court case law has provided that a combination of parental rights and religious
liberties provide a broader right of parents and private schools to control the
values and curriculum of private education free from State interference.68
Thus, under U.S. constitutional principles it would be impermissible for the
government to regulate the values of private education in the manner
apparently required by the CRC. For example, there are both religious and
non-religious persons and organizations within the United States who are, in
principle, opposed to the United Nations. Under Supreme Court case law,
there is in effect a constitutional right for private schools to foster a negative
view of the United Nations, while under Article 29 the State would be
obligated to either shut down such schools or alter their curriculum. Similarly,
the practice in many religious schools of teaching that a particular religion is
the true religion could be seen as violating Article 29’s requirement that
private and public schools teach values of respect, friendship, and tolerance for
other religions and cultures. This point is, of course, a debatable question of
interpretation, for it could be argued that respect and tolerance do not require a
doctrine of religious relativism. The CRC is hardly in a position to mandate
the belief that all religions are equally true, which would of course render most
religions false and therefore end in the self-contradiction of demanding respect
for religious views through an implicit condemnation of most religions as
intolerant and misguided. Nonetheless, the stark elevation of a particular
religion at the expense of all others could easily be seen by some as violating
Article 29, which would, of course, lead the Article to again contradict the
constitutional ideals of parental rights and religious liberty which allow such
religious teachings in private schools.
Given this stark contradiction between Article 29 and U.S. Supreme Court
constitutional precedents, a reservation is apparently necessary. Thus, the
American Bar Association has recommended a reservation on this point,
68 See Bitensky, supra note 8, at 181. Relevant cases include Runyon v. McCrary, 427 U.S. 160 (1976);
Wisconsin v. Yoder, 406 U.S. 205 (1972); Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska,
262 U.S. 390 (1923).
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although its language is perhaps too limited.69 Whatever the final language,
the United States should create a reservation, accompanied perhaps as well by
an interpretative understanding, which upholds the American ideals of parental
rights and religious liberty. These are principles worth espousing both
domestically and internationally, which ultimately contribute to, rather than
denigrate from, human rights.
E. Provision Rights
The CRC, like other human rights treaties, embraces positive economic
rights in a form different from the constitutional traditions of the United States.
The U.S. Constitution overwhelmingly protects individuals from government
without defining much in the way of rights to governmental help or assistance.
Questions of governmental assistance generally are matters of political
discretion rather than constitutional right within the American system.70
Economic rights in the United States primarily refer to the right of property
owners to be free of government regulation. The concept of rights embodied
in human rights treaties, by contrast, concerns both negative and positive rights
in relationship to government. While it is unclear to what degree the human
rights protections of positive economic rights necessarily require direct
government provision, international human rights norms certainly refer to
some level of positive governmental responsibility to meet basic human needs.
The United States has generally not ratified human rights treaties involving
positive economic rights. The most prominent example, of course, is the
failure of the United States to ratify the Covenant on Economic, Social, and
Cultural Rights.71 The significant provision rights within the CRC could prove
an obstacle to U.S. ratification. These provisions raise the issue, for example,
of whether the treaty would require that the government guarantee or provide
health care to all children in the United States. In addition, one commentator
69 See AM. BAR. ASS’N, CTR. FOR CHILDREN AND THE LAW, POLICY ON U.S. RATIFICATION OF
cases on the “negative constitution,” Deshaney is highly relevant to the question of children’s rights, although
it falls in the area of government protection from abuse, rather than economic assistance.
71 International Covenant on Economic, Social, and Cultural Rights, G.A. Res. 2200A, U.N. GAOR, 21st
Sess., Supp. No. 16, U.N. Doc. A/6316 (Dec. 16, 1967).
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has suggested that the CRC would require the United States “to move
progressively toward child support, social insurance, parental support and
income maintenance policies and practices. . . . Improvements in the minimum
wage, the availability and amount of tax credits, education, job training, and
job creation efforts, social insurance programs and benefits in safety net
programs are all necessary.”72 These observations about the possible impact of
the CRC were published in 1990, before the Clinton-era enactment of “welfare
reform” and the international controversy over “neo-liberal” economics;
indeed, they even predate the collapse of the Soviet Union and the relative
embrace of capitalism by India and China. Nonetheless, these words
accurately indicate the kind of issues which the CRC would still raise in the
United States.
Some religious conservatives are opposed to the expansion of the so-called
“welfare state” based on a philosophy or theology of government that
perceives assistance to the poor and needy as best accomplished through
nongovernmental means. Of course the debates over the size and functions of
government are a perennial political issue, regardless of religious perspective.
It is often noted that the United States is unusual among comparable nations in
its approach to health care, due to the failure of the government to guarantee
health care to all through a nationalized health care system. The ongoing
debates in the United States over Medicaid, Medicare, Social Security, health
care costs, and other important budgetary issues continually implicate these
questions regarding the role and size of government.
The issues raised by the provision rights in the CRC underscore the need
for the United States to declare the CRC to be non-self-executing. Such a
declaration would place the responsibility for implementation of provision
rights with the legislative and executive branches of both the federal and state
governments rather than with the judiciary. The debate over the role of
government in meeting the provision rights of children would be completely
legitimate and would effectively duplicate and underscore existing debates in
the United States about the role of government in meeting the needs of
children. No one, including religious conservatives, can legitimately object to
continuing public debate over how to ensure that the basic needs of children
are met. The real objection to these CRC provisions would be that they alter
the U.S. system of government, which traditionally places such issues within
72 James Weill, Assuring an Adequate Standard of Living for the Child, in CHILDREN’S RIGHTS IN
AMERICA, supra note 8, at 197, 214.
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CONCLUSION
73 See World Vision, Imagine a World Where Children Are Safe, http://www.wvi.org/wvi/global/
global.htm (“WV endorses the United Nations Convention on the Rights of the Child (CRC) as a powerful
statement of obligations to children; and when advocating for the rights of the child, WV promotes the articles
and principles of the Convention as a solid framework for action.”) (last visited Apr. 2, 2006).
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realities beyond that of the merely human and natural. Nonetheless, both the
human rights and religious communities are enriched by their allied efforts,
despite disagreements about worldview or particular issues that may arise.
There are, of course, objections to the CRC and potential RUDs that stem
primarily from non-religious issues and thus are beyond the scope of this
Essay. The message of this Essay, however, may be relevant to those
objections as well. That message is that the United States should ratify the
CRC with RUDs expressive of genuine issues which the CRC poses in the
context of the United States. This kind of careful and measured ratification
would take the CRC and our commitment to it seriously, while opening the
door to a long-term implementation process that hopefully would serve
children and the entire society.