Whose Body? Whose Soul? Medical Decision-making on Behalf of Children and the Free Exercise Clause before and after Employment Division

Within constitutional law, children’s rights have suffered from severe neglect. The issue of parents’ constitutional rights to deny children medical treatment based on religious belief is one area in desperate need of attention. Although the Supreme Court’s 1990 decision in Employment Division v. Smith seemingly set forth a relatively clear rule regarding the availability of exemptions from generally applicable laws—such as those requiring parents to ensure that their children receive appropriate medical care—Smith has changed little in this realm, and if anything, it has only confused matters, highlighting the intractable nature of the issue. While Smith emphasized the police power of the state over the individual’s religious motivations and revived the belief/conduct distinction, it also introduced the needlessly confusing concept of “hybrid rights,” which may encompass parental rights to control their children. This brief Essay argues that the Free Exercise Clause is in fact irrelevant to the issue of parents’ rights to make medical decisions for their children and that courts should begin to recognize this irrelevance. The cases involving such claims revolve almost entirely around issues that are largely unrelated to the parents’ religious exercise; in addition, it is unclear that they involve the sort of governmental coercion that is required in order to state a free exercise claim. This Essay concludes by exploring the possible implications of recognizing the irrelevance of parental free exercise in medical decision-making cases. ∗ Professor of Law and Associate Director of the Center for Social Justice, Case Western Reserve University School of Law. I would like to thank Marci Hamilton and the editors of the Cardozo Law Review for organizing this Symposium and inviting me to participate. I would also like to thank Jonathan Entin, Jacqui Lipton, and Chris Lund for their valuable feedback, and Meagan Bielanin for extremely helpful research assistance. 1858 CARDOZO LAW REVIEW [Vol. 32:5