2 U. Pa. J. Const. L. 53 (1999-2000)
What Does Frieda Yoder Believe

handle is hein.journals/upjcl2 and id is 61 raw text is: WHAT DOES FRIEDA YODER BELIEVE?

Emily Buss
In his dissent in Wisconsin v. Yoder, the case upholding
Amish parents' right to withdraw their children from high
school for religious reasons, Justice Douglas challenged the
Court's focus on the rights of parents.' In his view, if an
Amish child desires to attend high school, and is mature
enough to have that desire respected, the State may well be
able to override the parents' religiously motivated objec-
tions.2 To ascertain the child's desires, Douglas suggested
that the State should simply ask her what she thinks.' While
I share Douglas's view that the Yoder decision is deficient in
its account of children's rights, I think Douglas's cure is
worse than the disease. We should have no confidence that
the State, in interjecting itself into a child's development of a
religious identity with its clumsy, uninvited questions, will
further the rights of children, let alone improve their lives.
In the three decades since its publication, Douglas's dis-
sent has served as a beacon for those calling for the recogni-
tion of children's rights independent of the rights of their par-
ents.' While the implications of his argument extend to any
. Assistant Professor of Law. University of Chicago Law School. My thanks to
participants in the Law and Philosophy Workshop at the University of Chicago Law
School for their helpful comments on the topic, to Erynne Ross. whose class pres-
entation and paper assisted me in analyzing minors' rights in the abortion context.
and to Yael Karabelnik and Christopher Snell for their helpful research assistance.
The Arnold and Frieda Shure Research Fund and the Max Rheinstein Research Fund
in Family Law provided support for this research.
See Wisconsin v. Yoder, 406 U.S. 205. 241-49 (1972) (Douglas. J.. dissenting).
2 Id. at 242.
3 See icl. at 244. 246 n.4 (noting that oin the important and vital matter of edu-
cation, I think the children should be entitled to be heard' and calling for the 'can-
vassing [oil the views of all school-age Amish children).
4 See, e.g., David Orentlicher, Spanking and Other Corporal Punishment of Chil-
dren by Parents: Overvaluing Pain, Undervaluing Children. 35 HOUs. L REV. 1478
(1998) (exempting Justice Douglas's dissent in Yoder from his general criticism of the
law's undervaluation of children); Catherine J. Ross. From Vulnerability to Voke: Ap-
pointing Counsel for Children in Civil Litigation. 64 FORDHAM L REV. 1571. 1587
(1996) (citing Justice Douglas's dissent in support of her argument that children
should be represented by counsel in judicial proceedings affecting their interests).
Catherine Grevers Schmidt, Where Privacy Falls: Equal Protection and the Abortion
Right of Minors, 68 N.Y.U. L. REV. 597, 630 (1993) (citing Justice Douglas's dissent to
support her argument for expanding mature minors' abortion rights): Leslie A.
Fithian, Note, Forcible Repatriation of Minors: The Competing Rights of Parent and
Child, 37 STAN. L. REV. 187. 204 (1984) (citing Justice Douglas as the first Supreme

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