The Law and Parental Rights

Editor’s Note: The following article appears in the Spring 2025 issue of Eikon.

Some of the thorniest issues in our culture are occurring at the overlap of church, state, and family.

Modern evangelicals are, perhaps, most comfortable thinking of these things as separate. The Baptists largely convinced most Reformed Protestants of some kind of separation between church and state. Abraham Kuyper famously described “sphere sovereignty,” in which government, church, and family maintain independent and inviolate charters directly from Scripture. Thus, the state cannot interfere in the church; the family remains separate from the church, and vice versa.

But individuals, of course, have duties to each sphere, and each sphere has duties to individuals. Like the Venn diagrams that confused us in high school, if some areas are clearly separate, there are also areas that touch or overlap. Defining these boundaries can be demanding.

These questions are especially difficult when family, church, or state try to push beyond their realm of jurisdiction, or fail to fulfill the duties within their right jurisdiction.

The United States Supreme Court has taken up two cases this term that concern the overlap of the state and the family. The court is not a stranger to church and state separation, the topic of the Constitution’s First Amendment. But it rarely speaks about the relationship of state and family — in part, because family relations are usually considered a matter for individual states. But when it does speak, it tends not to speak again on the issue for years or decades. So evangelicals should have a keen interest in the arguments considered and the opinions rendered this term, as we may be stuck working out the implications for some time to come.

U.S. v. Skrmetti

The first of the cases is U.S. v. Skrmetti. In 2023, the State of Tennessee adopted a law that prohibits doctors from claiming to offer treatments that involve allowing “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity.”

Tennessee’s law effectively banned the use of hormones to change a minor’s “gender identity” or to use drugs to delay puberty. It also banned surgical interventions that try to alter the genitals of minors, or remove the breasts of females, in the belief this would alleviate the child’s discomfort with their sex.

Three “transgender” minors, represented by their parents, sued to enjoin the law, asking to gain access to banned treatments. Under the direction of then-President Joseph Biden, the Department of Justice joined the suit, and argued the law violates the equal protection clause of the United States. In recent days, after Donald Trump was returned to office by voters, the Department notified the Supreme Court that it has changed position, and now agrees the law is Constitutional. So the case will return to its original configuration: a claim of three families against the power of the state to interfere with their healthcare decisions.

Mahmoud v. Taylor

In Mahmoud, the Montgomery County (Maryland) Board of Education required elementary students to sit through a curriculum celebrating gender transitions, Pride parades, and same-sex romance between young children. As an example, the “Pride Puppy” book asked students to identify items commonly seen at Pride parades, like “leather” and “drag queen.” An activity with “Jacob’s Room to Choose,” required students to parade with placards that proclaim “Bathrooms Are For Every Bunny.”

Despite warnings from school staff that the curriculum was not appropriate for these children, the District insisted that students learn gender ideology as “fact,” and even shame students who resisted the teaching. Teachers were instructed to be dismissive of students’ religious beliefs if they differed. At first the District offered notice to parents, consistent with other types of “sex education,” and an opportunity to opt out. But it later reversed course and decided the story-book curriculum would be mandatory.

When many families complained — including many Muslim and Eastern Orthodox parents — the Board compared them to bigots and “white supremacists.”

Three families sued — two Muslim, one Christian (Catholic and Orthodox) —  alleging that the schools have burdened the families’ free exercise of religion by subjecting them to education in conflict with the parents’ religious convictions.

Two lower courts rejected the parents’ arguments, holding that the government’s curriculum did not discriminate or “coerce” these young students to change their beliefs.

The families in Mahmoud argue that they should be protected under the rule of a 1972 case, Wisconsin v. Yoder. Yoder was one of the rare cases where the Supreme Court had had occasion to address the rights of religious parents against public schools. In Yoder, Amish parents were convicted of violating compulsory school laws by refusing to send their children to school past the eighth grade. The rule did not discriminate; Wisconsin said all children had to attend school. But the Supreme Court held that compulsory schooling “interposes a serious barrier to the integration of the Amish child into the Amish religious community.”

The Yoder court held that the Amish had established a First Amendment right to an exception from the general rule. “A State’s interest in universal education, however highly we rank it, is not totally free from a balancing process when it impinges on fundamental rights and interests, such as those specifically protected by the Free Exercise Clause of the First Amendment, and the traditional interest of parents with respect to the religious upbringing of their children.” The Court recognized that “exposing Amish children to worldly influences in terms of attitudes, goals, and values contrary to beliefs,” would harm the child’s integration in his family and faith communities, at a crucial age.

What Are Evangelicals to Think?

Mahmoud and Skrmetti both involve families seeking to limit the power of the state. One asserts the right of parents to direct not just the medical care of the child, but the right to decide the child’s “gender identity.” The other asserts the rights of religious parents to seek an exception from public school during the presentation of objectionable curriculum.

As an evangelical parent, it might be tempting to settle for a default rule that “parents know best.” After all, that provides us with the maximum authority in our own homes. Our children are unlikely to have gender dysphoria, and we’re much more likely to have concerns about state intrusion.

Another reflexively appealing rule might be “Christianity should win.” That means the parents can’t change a child’s gender, but perhaps there is a danger in letting “religion” justify exceptions from the law. After all, there are non-Christian claims for exemption from general laws that we would find unacceptable. “Honor killings” shouldn’t be a permissible exception from murder laws; why would we let practitioners of false religions school their children in teachings that might encourage those evils?

But neither of those reflexive rules matches the details of our historical, Protestant legal and theological traditions — and I believe the First Amendment, in the context of the Founding era, is an example of that tradition.

First, the Supreme Court has been correct to hold, despite any language on the topic in the Constitution, that parents have a fundamental and natural right in the education and upbringing of children. Normally, we can expect the decisions of parents to be made in the best interests of their children. And absent exceptional evidence, neither the state nor the church has paramount rights to make those decisions. This is consistent with the creation order of the institutions in the Bible, where the family is created before the other institutions.

Second, Protestants have long agreed that the state does have legitimate authority to use force or compulsion to protect citizens from evil — and that includes situations where the family has failed to protect the physical well-being of the individual. Unlike Roman law, our Constitution does not give parents the power of life and death over their children. And, thanks be to God, the Supreme Court has struck down Roe v. Wade, which held that states cannot interfere with a mother’s decision to kill a child before birth. In practice, most states still allow abortion (whether by surgery or drug). Protestants have long rejected a state that stands by while children are murdered or mutilated no matter the intention of the parents. “Parents always win” is not our theological or legal tradition.

Third, the Protestant tradition has also been reluctant to use coercion to force men and women to violate their religious conscience — even when that conscience is wrong. And that tradition includes granting religious exemptions to general rules, where it can be done without depriving the state of achieving its compelling interests.

These three principles have had broad consensus among Protestants generally, and among Americans in particular. Each of them reflects human efforts to protect a God-ordained duty: duty to family, duty to our fellow citizens, and duty to God. Of course, at the edges these principles are subject to fierce debate. But we should not want to see our Supreme Court easily discard any of them.

Under these three principles, I believe Mahmoud should be decided consistent with Yoder. The families should be expected to make decisions in the best interest of their children. Their requests do not present a danger to the lives of their children. Even though we disagree with the theology of some of the parents, and believe that theological disagreements are a matter of heaven and hell, the state has no compelling reason to override their educational decisions about gender and sexuality. To the extent the state (and the church) disagree about their duty to God, this is not a situation where the state should use the sword to compel attendance.

Skrmetti, on the other hand, clearly does involve permanent damage to a child’s body, by drug or surgery. And so where a parent’s decisions would prevent the natural and healthy development of the child, the state has an interest in using the sword to restrain them. The family that is supposed to protect the child’s body has become a threat. That protection does not depend on a parent’s sincerity, or even their doctor’s sincerity. It does not depend on the family’s philosophical or religious motivation. Threats of physical harm to a minor justify state intervention, and Tennessee’s law should be upheld even when it interferes with parental rights.

But Skrmetti, like Roe, also shows the impossibility of the state using “science” or “medicine” or even “choice” as a substitute for metaphysical principles; these fields cannot tell us the true nature of men and women. “Scientists” in thrall to a certain moral view will tell you, sincerely, that “man” and “woman” are matters of belief and choice. Some women, quite sincerely, will tell you their “freedom” is harmed without freedom to abort. Some parents will sincerely support bodily mutilation, fearful that their child will choose suicide to avoid natural development.

I am ultimately skeptical that even “natural law,” as much as I find it to be a helpful tool that is embedded in our history and jurisprudence, can ultimately be judged without some presuppositions that must be tested against Scripture. In deciding which actions to restrain, and which actions to encourage, the state cannot avoid making some determination about what is “evil” or “harmful” to a human.

My own Baptist tradition opposes the use of force to establish a state church, or to punish religious opinions, in part due to Jesus’ command to let the wheat and the tares grow together (Matt 13:29). Other American Protestants (including Presbyterians and Anglicans) have largely joined in this consensus. I still think it is right to offer special solicitude to religious activity that does not interfere with the Government’s interests. But every project proposing to substitute a “religion-free” or “morality-free” basis to decide “evil” has turned up short — and often in grotesque ways.

As a lawyer and a Christian, I pray the Supreme Court preserves these important traditions — and that we will become a better nation for it.