points of agreement
James G. Dwyer
JDwyer at UWYO.EDU
Tue Dec 8 10:44:53 PST 1998
I think Sandy is right to suggest areas of agreement, if only for the
purpose of generating a discussion that is more constructive and less
polemical (I blame my Catholic upbringing; I wasn't exposed to
open-mindedness until age 18). I think there is actually agreement between
myself and others on a number of important propositions, and much of the
disagreement may stem from a failure to keep in mind those agreed-upon
propositions. So I thought I would begin a list of propositions as to which
there is some agreement, and invite comments.
1. The state must decide how child-rearing authority is to be legally
allocated among parents, state officials/agencies, and other parties. (laws
and legal rights do not fall from the sky, nor emanate from the keyboards of
2. The state should base that allocation decision on what is best for
children in general, and of course that has to mean what is best for
children as the state sees it. (Steve Gilles's argument is that the state
should see it one way, and mine is that the state should see it another
3. In making the allocation-of-authority decision, the state may not
assume the truth of any religious beliefs. It must therefore base the
decision on what it perceives to be (see #2) the temporal (i.e.,
non-spiritual) interests of children.
4. To the extent that presumptive or conclusive parental authority is
most likely to lead to the best outcomes for children, in terms of the
general interests of children as the state sees them (see #2), children are
entitled to have their parents receive that authority. This would include
a) decisions as to which the state believes (see #2) parents are likely to
have superior knowledge, b) decisions as to which the state does not believe
there is superior knowledge available, and c) decisions as to which the
state believes the costs for children of overriding parental choices would
likely exceed the benefits for children of imposing the state's view, even
where the state has good reason to believe that it has superior knowledge.
This may not be an exclusive list.
5. To the extent that legal restrictions on parental authority are most
likely to lead to the best outcomes for children, in terms of the general
interests of children as the state sees them (see #2) (taking into account
the costs for children that state interference in family life, in and of
itself, occasions) the state should impose those restrictions.
6. When there are legal disputes about any restrictions imposed on
parental authority, the courts must resolve those disputes and should do so
by evaluating the soundness of the legislative allocation decision, in 2
ways: a) it should determine whether the general rule established has
adequate support (i.e., whether the state's evidence for what is best for
children in general meets some standard of adequacy), and b) whether it
would be in the interests (as the court sees them (see #2 and #3), after
receiving evidence and arguments from the state and parents) of children in
general or of the particular children or group of children involved to
create certain exceptions to the general rule.
Rather than press my luck, I'll stop there. I believe a lot of disagreement
arises from overlooking (or rejecting) propositions 1-3 above. Does anyone
think any of these propositions wrong?
Professor Jim Dwyer
University of Wyoming College of Law
P.O. Box 3035
Laramie, Wyoming 82071-3035
jdwyer at uwyo.edu
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