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Bar Journal 2017

First Amendment, Equal Protection and Invisible Children

By Richard J. Goralewicz

The king is in legal contemplation the guardian of his people, and in that 
amiable capacity is entitled (or rather it is his Majesty’s duty, in return for the allegiance paid him) to take care of his subjects as are legally unable, on account of mental incapacity, whether it proceed from first nonage [children]:second, 
idiocy: or third, lunacy: to take proper care of themselves and their property.

J. Chitty1

A Treatise on the Law of the Prerogative of the Crown

Things have changed quite a bit since those days in jolly olde England which Mr. Chitty described in his history of the law of parens patriae quoted above.

The doctrine, however, remains alive and well even in the absence of an actual monarch. The doctrine of parens patriae, the Oklahoma Supreme Court tells us,“may be defined as the inherent power and authority of the Legislature of a state to provide protection of the person... non sui juris, such as minors, insane, and incompetent persons.”Mainly through statute, states assume the role of the monarch, replacing royal fiat with heuristic rules and due process boundaries under which courts may take protective action on behalf of vulnerable persons. In particular:

Because the state has an interest in its present and future citizens as well as a duty to protect those who, because of age, are unable to protect themselves, it is the policy of this state to provide for the protection of children who have been abused or neglected and who may be further threatened by the conduct of persons responsible for the health, safety, and welfare of such children. To this end, where family circumstances threaten the safety of a child, the state’s interest in the welfare of the child takes precedence over the natural right and authority of the parent to the extent that it is necessary to protect the child and assure that the best interests of the child are met.3

In this context, the Oklahoma Legislature has unwisely included and unnecessarily perpetuated a gaping, definitional wound in the body of the Children’s Code, to-wit:

Nothing in the Oklahoma Children’s Code shall be construed to mean a child is deprived for the sole reason the parent, legal guardian, or person having custody or control of a child, in good faith, selects and depends upon spiritual means alone through prayer, in accordance with the tenets and practice of a recognized church or religious denomination, for the treatment or cure of disease or remedial care of such child.4

The second sub-paragraph of this section contains an ameliorating qualification, providing, “Nothing contained in this paragraph shall prevent a court from immediately assuming custody of a child and ordering whatever action may be necessary, including medical treatment, to protect the child’s health or welfare.”5 No Oklahoma court has yet construed this clause in a published opinion. Given the current cultural climate, in which the First Amendment may be seen as “weaponized” or polarized, and predictions, if and when this issue percolates through various trial courts, become difficult. Which of these clauses constitutes the tail and which the actual dog poses a significant question. In other words, does the judicial action clause modify the religious license, or does the latter, coming first, serve as a brake on either state or judicial intervention?

The problem is real and substantial. For example, as reported in a study published in the medical journal Pediatrics:

Participants. One hundred seventy-two children who died between1975 and 1995 and were identified by referral or record search. Criteria for inclusion were evidence that parents withheld medical care because of reliance on religious rituals and documentation sufficient to determine the cause of death.

Results. One hundred forty fatalities were from conditions for which survival rates with medical care would have exceeded 90%. Eighteen more had expected survival rates of >50%. All but 3 of the remainder would likely have had some benefit from clinical help.

Conclusions. When faith healing is used to the exclusion of medical treatment, the number of preventable child fatalities and the associated suffering are substantial and warrant public concern. Existing laws may be inadequate to protect children from this form of medical neglect.6

Shield laws in one form or another comprise the norm among the 50 states.7 They had their genesis in the Child Abuse Prevention and Treatment Act of 1974.8 Pursuant to this act, and regulations established thereunder, states seeking federal funding had to enact religious protective laws as a prerequisite to financial aid. In the years since, the religious shield language had an on-again, off-again presence through deletion, dilution and/or removal. As it currently stands, the act provides:

Nothing in this Act shall be construed –

(1) as establishing a Federal requirement that a parent or legal guardian provide a child any medical service or treatment against the religious beliefs of the parent or legal guardian; and

(2) to require that a State find, or to prohibit a State from finding, abuse or neglect in cases in which a parent or legal guardian relies solely or partially upon spiritual means rather than medical treatment, in accordance with the religious beliefs of the parent or legal guardian.9

So, where does this leave us? A plain reading of the statute indicates that, despite the lip service given to federal concerns for the health and welfare of children, Congress has opted for a metaphoric hand-washing in this regard not entirely unlike the historical event giving rise to that metaphor. Protective action, therefore, be-comes the province of the several states. Unfortunately, since the repeal of the mandate too few have done so, and then most often in reaction to a particular, often avoidable tragedy.

TRIGGERS OF CHANGE – A CHILD’S BASKET OF DEPLORABLES

Lockhartand Funkhouser

In State v. Lockhart,10 9-year-old Jason Lockhart died of peritonitis resulting from perforation of a gangrenous vermiform appendicitis.11 Following a trial brought under the misdemeanor/manslaughter rule (with child endangerment comprising the underlying misdemeanor), the trial court gave the following instruction:

A person is justified under the law of this state in not providing medical treatment for his child if instead that parent in good faith, selects and depends upon spiritual means alone through prayer, in accordance with the tenets and practice of a recognized church or religious denomination, for the treatment or cure of disease of such child.12

The jury acquitted the Lockharts, and the state appealed. Affirming this result, the Court of Criminal Appeals held, “We believe that the statute is clear and unambiguous, and expresses a legislative intent that those parents who rely in good faith upon the tenets of their religious belief for the care and protection of their children be allowed a defense to a misdemeanor charge subsequently arising from their failure to obtain medical assistance for their children.”13

Following the Lockhart trial but prior to the appellate ruling, the Legislature changed the statute.In its current form, the relevant amendments read:

Nothing in this section shall be construed to mean a child is endangered for the sole reason the parent, guardian or person having custody or control of a child, in good faith, selects and depends upon spiritual means alone through prayer, in accordance with the tenets and practice of a recognized church or religious denominationfor the treatment or cure of disease or remedial care of such child; provided, that medical care shall be provided where permanent physical damage could result to such child; and that the laws, rules, and regulations relating to communicable diseases and sanitary matters are not violated.14

In Funkhouser v. State:15

Benjamin Keith Funkhouser, the appellants’ three month old son died at home from complications arising from pneumonia. The appellants, although knowing Benjamin was ill, did not seek medical help. Instead, the parents relied on prayer and divine intervention to heal their child. The parents are members of The Church of The New Born that relies on divine intervention for healing sickness to the exclusion of medical assistance.16

The jury convicted them of second-degree manslaughter. On appeal, the Funkhousers contended that 852 allowed them an absolute defense. In particular, they objected to a jury instruction reading:

A person may be justified under the law of this State in not providing medical treatment of his child if instead the parent in good faith, selects and depends upon spiritual means alone through prayer, in accordance with tenets and practice of a recognized church or religious denomination, for the treatment or cure of disease of such child, provided that said treatment or cure is something which a reasonably careful person would do under similar circumstances and conditions.

Compared with the Lockhart instruction, the instruction expresses the law in far more conditional terms, providing substantially less cover for the Funkhousers’ position. The Court of Criminal Appeals affirmed the conviction, noting that the instruction above accurately stated the law as it currently stood. Particularly:

This instruction accurately reflected the defense of good faith reliance on spiritual means. The instruction considered by the jury did not provide the appellants with the absolute defense proposed by their requested instruction. The trial court properly circumscribed the defense under a reasonably careful person standard that is within the definition of culpable negligence. We have defined culpable negligence as:

The omission to do something which a reasonable and prudent person would do, or the want of the usual and ordinary care and caution in the performance of an act usually and ordinarily exercised by a person under similar circumstances and conditions. Crossett v. State, 96 Okl. Cr. 209, 217,252 P.2d 150, 159 (1952).

Good faith reliance on spiritual means alone is not a defense to Manslaughter in the Second Degree. Since the evidence warranted the defense of good faith reliance on spiritual means, the court properly allowed the appellants the defense within the boundaries of the definition of culpable negligence.17

While Funkhouser, and the statutory amendments referenced therein, constitutes a quantum leap forward in the protection of children, the system remains flawed. The shortlist of possible deficiencies include: a) the uncomfortable position of the courts determining both what constitutes a “recognized church or religious denomination”; b) no bright line test for what constitutes action or inaction“in accordance with that church or religions tents and practices”; c) the potential constitutional infirmity of the distinction between members of recognized and nonrecognized churches who may still have valid beliefs or articles of faith (not to mention the differing protections offered to children of various faiths); and d) what constitutes “culpable negligence” when weighed against First Amendment considerations. As to this last point, the dearth of factual discussion in Funkhouser yields few clues.

The Wagstaffe case18 provides an example of the difficulty of the latter point. As one author analyzed it:

The testimony in Wagstaffe established, and indeed emphasized, that the parents were loving and attentive.“The mother,” we are told by a witness “devoted most of her time to it [the child],” and the father “was very kind and affectionate.” The Wagstaffes had two other children who were described as “healthy and well-nourished.” A witness, (who was a member of the sect), the elders, and the parents had all mistaken the deceased child’s “inflammation” for teething problems.19

The judge then took the jury through “a fine casuistry of culpable conduct in the faith healing context.”20 He then noted:

[All] the reasoning in the world would not justify a man in starving a child to death [for religious reasons]. But when the jury had to consider what was the precise medical treatment to be applied in a particular case they got into much higher latitude indeed. At different times people have come to different conclusions as to what might be done with a sick person …There was a very great difference in neglecting a child with respect to food, with regard to which there could be but one opinion, and neglecting medical treatment as to which there might be many opinions.21

Commonwealth vs. Twitchell

As officially reported:

David and Ginger Twitchell appeal from their convictions of involuntary manslaughter in connection with the April 8, 1986, death of their two and one-half year old son Robyn. [Note 2] Robyn died of the consequences of peritonitis caused by the perforation of his bowel which had been obstructed asa result of an anomaly known as Meckel’s diverticulum. There was evidence that the condition could be corrected by surgery with a high success rate.22

The Twitchells, Christian Scientists,23 sought to take shelter under Massachusetts’ statutory law which provided: “A child shall not be deemed to be neglected or lack proper physical care for the sole reason that he is being provided remedial treatment by spiritual means alone in accordance with the tenets and practice of a recognized church or religious denomination by a duly accredited practitioner thereof.”24

In pertinent part, the Twitchells argued the vagueness doctrine, particularly:

The defendants argue that the failure to extend the protection of the spiritual treatment provision to them in this case would be a denial of due process of law because they lacked “fair warning” that their use of spiritual treatment could form the basis for a prosecution for manslaughter.Fair warning is part of the due process doctrine of vagueness, which “requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Many fair warning challenges involve statutes that are unconstitutionally vague on their face, such as vagrancy statutes. Even if a statute is clear on its face, there may not be fair warning in the circumstances of particular defendants. The defendants here argue that they have been denied fair warning in three different ways. They contend that fair warning (1) would be denied by an unforeseeable retroactive judicial interpretation that the spiritual treatment provision does not protect them (, (2) is denied by the existence of contradictory commands in the law of the]), and (3) is denied because they were officially misled by an opinion of the Attorney General of the Commonwealth.25

The Supreme Judicial Court ofMassachusetts overturned the conviction based upon the third type of vagueness.Specifically, the attorney general had given an arguably negative answer to a question whether a parent may be prosecuted for providing spiritual treatment alone. The Christian Science Church put out a legal guide based upon this construction. The Twitchells made inquiry of the church and relied on that construction. Therefore, the court ruled, “The issue of their reliance on advice that had origins in the Attorney General’s opinion should have been before the jury.”26

In many ways, the Twitchell arguments reflect some of the concerns raised under the Oklahoma discussions above. Given that the opinion of one “authoritative official” such as the attorney general or a court may put the affirmative defenses into play, it becomes clear that the potential for fatal mischief lies in the continued existence of the statute itself.

State v. Crank

In State v.Crank,27 Jacqueline Crank was convicted of child neglect for failure to seek medical assistance for her daughter on the basis of her religious beliefs. The child, Jessica, suffered from Ewing’s Sarcoma, a rare form of cancer. Jessica died at the age of 15. As recited by the court, “Jessica ‘had a problem with her shoulder’ and took her first to a chiropractor and later to a nurse practitioner at a walk-in clinic.Eventually, Jessica’s symptoms became more pronounced, and the Defendant ‘knew there was a problem’ when Jessica developed‘a grapefruit size tumor on her shoulder.’”28 While Ms. Crank did bring Jessica to a chiropractor, the latter advised her to get to an emergency room immediately. Ms. Crank did not do so. Ultimately, the state of Tennessee took custody of Jessica. She received treatment at East Tennessee Children’s Hospital but was soon released to hospice care, dying shortly after. As to cause of death, Dr. Victoria Casteneda stated:

I can state, based upon my training, experience and treatment of Jessica Crank, that her death was approximate result of Ewing’s Sarcoma. A delay in the treatment of her disease results in a more massive tumor and renders the patient more symptomatic. While earlier treatment would not likely have resulted in her being cured, it would have helped in dealing with her condition and symptoms and positively impacted the quality of her life.29

With prompt treatment beginning in February 2002, the quality and length of her remaining life would have been improved and medical personnel would have been better able to manage her pain and disability. After consenting to a bench trial, Ms. Crank was convicted of child neglect.

The primary thrust on appeal focused on the “void for vagueness” doctrine. Upon analyzing the statute in question, where issue was joined on particular statutory phrases. As distilled in the opinion:

As noted, the spiritual treatment exemption applies only when,“in lieu of medical or surgical treatment,” a child is “provided treatment by spiritual means through prayer alone in accordance with the tenets or practices of a recognized church or religious denomination by a duly accredited practitioner” of the church or denomination. Tenn. Code Ann. §39–15–402(c). TheDefendant asserts that several of the statutory terms – including “treatment,”“prayer alone,” “tenets or practices,” “practitioner,” and “recognized church or religious denomination” – are so unclear that neither individuals nor law enforcement officers can ascertain when the statute applies. We do not agree.30

Next came the First Amendment challenge.The court avoided any definitive statement as to the constitutionality of the religious shield law either case specifically or even generally. The defendant argued both an Establishment Clause and an Equal Protection Clause violation in that certain bona fide religions fell under the act’s coverage while others (including hers) did not. The state argued that, even assuming a First Amendment violation, the remedy would be to strike the exemption while enforcing the remainder of the child abuse and neglect statutes.31 The court agreed, holding:

We must next consider whether the Defendant would be entitled to relief if we were to elide the allegedly unconstitutional terminology within the spiritual treatment exemption. This would require the deletion of the words“alone in accordance with the tenets or practices of a recognized church or religious denomination by a duly accredited practitioner thereof.” Eliding the statute in this manner would extend the exemption to any parent who “provide[s]treatment by spiritual means through prayer … in lieu of medical or surgical treatment.” The State maintains – and we agree – that eliding the statute in this way would expand the scope of the exemption beyond what was intended by the General Assembly. While broadening the statutory exemption might serve to address any constitutional deficiencies, we cannot say that our legislature would have enacted an exemption so broad that it would encompass all instances in which a parent claims reliance upon prayer in lieu of medical treatment fora child.32

Although no landmark constitutional ruling came out of Crank, in its wake, Sen. Richard Briggs, R-Knoxville, a cardiac surgeon, and Rep. AndrewFarmer, R-Sevierville, a lawyer, introduced a repeal bill, Senate Bill 1761. It won unanimous (94-0) Senate approval in March and an 85-1 vote in the House.33

While good has come from the foregoing cases in that substantial amendments or repeals of religious shield laws have come about as a result (Massachusetts has also since repealed its shield law)there is one common denominator. Each step forward has come as a reaction to the death or unnecessary suffering of children.

FIRST AMENDMENT OVERRIDE

In weighing competing interests in the context of children’s health care, we cannot gainsay the substantial governmental interest in the health and safety of children. As SCOTUS ruled in Prince v. Massachusetts:

A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens, with all that implies. It may secure this against impeding restraints and dangers, within a broad range of selection.Among evils most appropriate for such action are the crippling effects of child employment, more especially in public places, and the possible harms arising from other activities subject to all the diverse influences of the street. It is too late now to doubt that legislation appropriately designed to reach such evils is within the state’s police power, whether against the parents claim to control of the child or one that religious scruples dictate contrary action.34 

And:

[O]ur courts have overridden the desires of parents who refused to consent to medical treatment and ordered such treatment to save a child’s life.35

These cases, and others like them, comprise a portion of the progeny of Reynolds v.United States.36 Reynolds, a Mormon, challenged the constitutionality of a ban on polygamy in Utah. This, he claimed, constituted an unconstitutional infringement upon his religious beliefs. Mr. Reynolds took a second wife, notwithstanding a living and undivorced first wife who still cohabitated with him as a spouse. With no question as to the fact of the second marriage, Reynolds argued he acted true to his religious beliefs. Writing for the majority in upholding the statutes and Reynold’s conviction, Chief Justice Waite observed, in words seemingly prescient37  of the issue now at hand:

Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship; would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral [pyre] of her dead husband; would it be beyond the power of the civil government to prevent her carrying her belief into practice?

So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief?

To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.38, 39

EQUAL RIGHTS OF CHILDREN

The Oklahoma Supreme Court has long recognized that children are not chattel.40 In addition, “parents have a natural, legal, and moral right, as well as a duty, to care for and support their children and such rights are protected by state and federal laws as well as the Constitution.”41 In this interlocking set of rights and duties, noting in our jurisprudence permits or endorses an assumption that parents may, with impunity, make their children martyrs to that parent’s faith.Looked at from another perspective, no child deserves exclusion from the protection of the law enjoyed by other children on the basis of a parent’s faith. Either way, the state has no compelling interest in creating such an exclusion.

The governmental interest in the health and welfare of children is one of universal recognition. Courts have uniformly treated children’s welfare as a compelling state interest.Osborne v. Ohio, “It is evident beyond the need for elaboration that a State’s interest in ‘safeguarding the physical and psychological well-being of a minor’ is ‘compelling’”;42 Lehr v. Robertson, “the Court has emphasized the paramount interest in the welfare of children”;43 Walker v. Superior Court, child health and safety is “an interest of unparalleled significance: the protection of the very lives of California’s children.”44

Both jurists and scholars have recognized the equal protection ramifications of marginalizing a certain class of children to an unprotected status. Some other states’ courts have recognized the conflict between a parent’s religious rights and the child’s right to equal protection. In Brown v. Stone,45 the court invalidated the religious exemption in Mississippi’s compulsory immunization laws on equal protection grounds. Specifically:

[No child should] be denied the protection against crippling and death that immunization provides because of [parents’] religious belief.”46

Brown concludes observing as follows, “As the United States Supreme Court said in InRe Gault, 387 U.S. 1, 13, 87 S.Ct. 1428, 1436,18L.Ed.2d 527 (1967): ‘Whatever may be their precise impact, neither theFourteenth Amendment nor the Bill of Rights is for adults alone.’”47

An Ohio decision weighed in even more expansively in the context of spiritual healing practices:

The Fourteenth Amendment guarantees to all citizens “equal protection of the laws.” As noted above, R.C. 2919.22(A) creates one standard of behavior for parents of one religious belief and another standard for a different group of parents. It is then inherent that equal protection is thus being denied to the parents not favored by the special exemption. Second, and more important, if the real purpose ofR.C. 2919.22(A) is to protect children from parental defalcation, then the prayer exception creates a group of children who will never be so protected, through no fault or choice of their own.48

Our law is replete with “status offenses.”That is, things which children are not permitted to do simply because they are children and is similarly replete with special crimes so categorized because they involve children. This is a logical and natural extension of the concept of the legal incapacity of a minor. Why then should children not be afforded special protection by our laws, each child on an equal basis with every other child, where the denial of that protection may injure or cripple the child for life or even result in that child’s premature death? This special protection should be guaranteed to all such children until they have their own opportunity to make life’s important religious decisions for themselves upon attainment of the age of reason. After all, given the opportunity when grown up, a child may someday choose to reject the most sincerely held of his parents’ religious beliefs, just as the parents on trial here have apparently grown to reject some beliefs of their parents. Equal protection should not be denied to innocent babies, whether under the label of “religious freedom” or otherwise.

The equal protection analysis has received support in legal scholarship as well.49 Cases presenting medical treatment of children should not remove children from their parents’ care, nor fail to intervene, on a “knee jerk” basis. Careful legal and factual balancing of rights and risks, where facts drive the legal analysis, have become a hallmark of such cases. In In Re D.R.50 for example, the Court of Civil Appeals carried forward the general rule that parents “may not make martyrs out of their children.” However, “a state cannot order that a child receive medical treatment over religious objections of the parents where the treatment itself is very risky, extremely invasive, toxic with many side effects and/or offers a low chance of success.”51

CONCLUSION

Religious shield laws provide maneuverability for those wishing to pit their faith against medical science, sing the bodies of children as their playing field. Every year throughout the world, children die of treatable illnesses, diseases and injuries because parents or guardians refuse to seek medical treatment in furtherance of their own religious beliefs. In lieu of medical treatment, some choose faithfully adherence to strict, and arguably extreme, religious beliefs. That, of course, is within the constitutional rights of every competent adult. At the other end of the spectrum, children, especially infants, lack both the legal and the practical ability to decide for themselves. Unfortunately, these children remain silent and invisible un-less or until their story gains media attention either as a “cause celebre”or an obituary.

Ultimately, the resolution of this issue lies in the hands of the Legislature. Meanwhile, like its victims, the statute lurks beneath the surface. We rarely notice it until directly at issue. It is incumbent upon child advocates, family lawyers, judges and prosecutors to recognize and understand these legal issues in order to provide these vital and vulnerable people the protection they are due.

1. J. Chitty, A Treatise on the Law of the Prerogative of the Crown 155(1820), quoted in George B. Curtis, “The Checkered Career of Parens Patriae: The State as Parent or Tyrant?”, 25 DePaul L. Rev.895, 896 (1976).

2. McIntoshv. Dill, 1922 OK 35, ¶28, 205 P. 917, cert.denied, 260 U.S. 721, 43 S.Ct. 12, 67 L.Ed. 480(1922).

3. Gowin v. Julius, 1954 OK 359, ¶11, 279 P.2d 954 [The state’s power then is based on its position as parens patriae, which inheres in its sovereignty to protect its infant citizens.]; see alsoAccord, Santosky v. Kramer, 455 U.S. 745, 102 S.Ct.1388, 71 L.Ed.2d 599 (1982) [The State has a parens patriae interest in preserving and promoting the welfare of children.].

4. 10A O.S.1-1-102 (A))(3) (2014 Supp.).

5. 10A O.S.1-1-105(20)(j) and 47(3)(c) (2014 Supp).

6. Seth M.Asser, and Rita Swan, “Child Fatalities From Religion-motivated MedicalNeglect,” Pediatrics 1998; 101: 625-629.

7. Pew Research Center(as cited in illustration), “Most states allow religious exemptions from child abuse and neglect laws,”www.pewresearch.org/fact-tank/2016/08/12/most-states-allow-religious-exemptions-from-child-abuse-and-neglect-laws/(Aug. 12, 2016; last accessed Dec. 15, 2016).

8. The Child Abuse Prevention and Treatment Act of 1974, Pub. L. No. 93-247, 88 Stat. 4(codified as amended at 42§§5101-5119c (2003)).

9. 42 U.S.C.5106 (2010).

10. 1983 OK CR76, 664 P.2d 1059.

11. 1983 OK CR76 at Par. 2.

12. Id.at Par. 1.

13. Id.at Par. 2

14. 21 O.S. 852(2011) (emphasis added); see alsoLaws 1983, HB 1082, c. 44, §1, eff. Nov. 1, 1983.

15. 1988 OK CR109, 763 P.2d 695.

16. 1988 OK CR109 at Par. 2.

17. Id.op. cit.

18. Infra.notes 38-39.

19. Catherine Cookson, “Regulating Religion: The Courts and the Free Exercise Clause,” p.153, Oxford University Press 2001.

20. Id.at 154.

21. Id.

22. Commonwealth v. Twitchell, 416 Mass. 114, 115 (1993).

23. I would be remiss if I failed to mention that the Christian Science Church makes a laudable effort to apprise its members as to local laws and has approved of, or given valuable input, efforts in some jurisdictions to reform their laws.  

24. Set for that Twitchell, supra at 116 (note 4) (citing Mass. Gen. Law ch. 273, §1 (1992 ed.)).

25. Id.at 123-24.

26. Id.at 129.

27. 486 S.W.3d15 (TN 2015).

28. 486 S.W. 3dat 19.

29. Id.at 20.

30. Id.at 26.

31. Id.at 28.

32. Id.at 29 (internal citations omitted).

33. Richard Locker, “Tenn. lawmakers approve repeal of ‘spiritual treatment’ exemption,” Knoxville News Sentinel, archive.knoxnews.com/news/local/lawmakers-approve-repeal-of-spiritual-treatment-exemption-30751f43-09c1-53d5-e053-0100007f15a9-375734171.html (April 14, 2016; last accessed Dec. 20, 2016).

34. U.S. 158,168-69 (1944).

35. See Parham v. J.R., 442 U.S. 584, 603, 99 S.Ct. 2493, 2504,61 L.Ed.2d 101, 119 (1979) (“Nonetheless, we have recognized that a state is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized.” (citations omitted)); Prince, supra,321 U.S. at 166-67, 64 S.Ct. at 442, 88 L.Ed. at 652-53 (noting that state, as parens patriae, can intrude on parental autonomy to protect child from ill health or death).

36. 98 U.S. 145(1878).

37. Some would argue the contrary given that, in paragraph next following the quoted passages, the chief justice cites with apparent approval the English case of Regina v. Wagstaffe, 10 Cox Crim. Cases 531 [1868]. In that case, the court made a distinction between actions harmful to a child based upon parents’ religious briefs (criminal) and inaction leading to harm of a child based upon parents’ religious belief (non-criminal). I tend to doubt the current efficacy of this argument. I also note that Wagstaffe has not been cited in any other published American opinion. Secondly, the Wagstaffe ruling may spring from a simple matter of statutory construction. Back at home in England, the response was an immediate Legislative reversal of that case, specifically criminalizing culpable inaction. 31 & 32 Vict., c. 132, §37(1868).

38. 98 U.S. at166-67.

39. See also Wisconsin v. Yoder, 406 U.S. 205, 233-34(1972), “To be sure, the power of the parent, even when linked to a free exercise claim, may be subject to limitation … if it appears that parental decisions will jeopardize the health or safety of the child.”

40. Nasalroad v. Gayhart, 1953 OK 144, 11, 257 P.2d 299; Osburn v. Roberts, 1946 OK 129, 3, 169 P.2d 293.

41. 10A O.S.1-1-102 (2014 Supp.).

42. 495 U.S.103, 109 (1990).

43. 463 U.S.248, 257 (1983).

44. 763 P.2d852, 869 (Cal. 1988).

45. 378 So.2d218 (Miss. 1979).

46. Id.at 222.

47. Id.at 224.

48. Statev. Miskimens, 22 Ohio Misc.2d 43, 490 N.E.2d 931,935-36, 22 O.B.R. 393 (Ohio Com. Pl., 1984).

49. James G. Dwyer,“The Children We Abandon: Religious Exemptions to Child Welfare and EducationLaw as Denials of Equal Protection to Children of Religious Objectors,” 74 N.C.L.Rev. 1321 (1996); Ann MacLean Massie, “TheReligion Clauses and Parental Healthcare Decision-making for Children:Suggestions for a New Approach,” 21 Hastings Const. L.Q. 725, 771-72 (1994).

50. 2001 OK CIVAPP 166, 21, 20 P.3d 166, 170.

51. Id.at ¶22.

About The Author

Rick Goralewicz graduated from King’s College and the OCU School of Law. After 21years in private practice, he joined the Senior Law Project of Legal AidServices of Oklahoma in 2003.

Originally published in the Oklahoma Bar Journal OBJ 88 pg 963 (May 20, 2017)

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