I had a remarkable opportunity to participate in an important event, Bridging Continents: Transatlantic Dialogue on Family Policy in Brussels on March 12, 2026, sponsored by the European Union and International Affairs Office of The Church of Jesus Christ of Latter-day Saints and Sutherland Institute. Here is a written version of my prepared remarks for the event.
It is common in discussions of family to note sobering statistics like the retreat from marriage in many nations, and particularly among the most vulnerable, declines in births, and increasingly (and surely related), the ominous rise in loneliness. These trends point to a “winter of despair” in Charles Dickens’ phrasing. Dickens, though, noted that a historical period can include contrasting elements, and I would like to describe a possible “spring of hope” evident in recent legal developments in the United States.
Spring is a remarkable time when we can observe, in a compressed period, that what looked lifeless was only dormant and a profusion of new shoots, buds, colors, and growth signals returning life.
Sensitive statesmen and observers of the early American experience recognized a fundamental paradox at the heart of the system – the success of its constitutional government would have to depend on resources the government itself could not produce. A free society needed traits like a disposition to comply with law, a willingness to make necessary sacrifices for the good of the community, tolerance of differences, etc., but these could not be conjured up by legislation or decrees.
These traits and other key virtues would need to be established as aspirations, modeled, and promoted by other institutions, the most important of which were the most foundational – family and religion. The close interactions of family and congregational life provided ideal opportunities to learn skills essential to maintaining the necessary balance of order and liberty. These institutions need not be perfect (indeed, the opportunity to interact with imperfect people was itself a valuable experience), but they needed a requisite amount of autonomy to successfully inculcate their essential lessons.
The qualities of responsible citizenship could be difficult to learn and practice. Here, too, families and congregations would be able to provide direct support through examples, counsel, and even direct assistance.
They provided something else that was essential – the identification and promotion of a scale of values that was timeless and independent of those that characterized much of political and commercial life, like power, popularity, and prestige.
Despite tragic failures and persistent injustices, observers like Alexis de Tocqueville believed that these features of early American thought and practice explained the stability and success the nation experienced and could fuel continued progress towards meeting aspirations it was currently far short of.
Commentators and laws explicitly recognized religion as a crucial part of the nation’s small-c constitution. Its importance was codified in specific constitutional protections. It took a very long time for that protection to become fully operative, but in the early 1970s, the U.S. Supreme Court protections of religious freedom had reached a high point in a case called Wisconsin v. Yoder.
For family, by contrast, recognition was a matter of widespread assumption. The need to articulate a defense of what is taken for granted is not usually apparent until the consensus begins to fray. In a period of national stress, efforts to promote uniformity in various states tested that consensus. The U.S. Supreme Court recognized: “The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” The high point for this protection also came in Yoder, when the Court held the state could not compel school attendance at odds with the beliefs of Amish families.
There followed, however, a period of dormancy when the value and protection of religious freedom was challenged by a decline in religious belief and affiliation and a retreat from robust court protections. Similarly, appropriate concerns about treatment of children and the hollowing out of conceptions of what constitutes a family led to increasing skepticism about, and regulation of, parental authority and the value of established family ties.
In the past decade, the Supreme Court has applied constitutional principles to ensure robust protection of religious exercise. This development is well known.
More recently, and less remarked, there has been an increased willingness of the justices to apply constitutional principles to recognize and protect parental authority. Thus, last year, the Court held that a school district could not refuse to provide notice to parents and an opportunity to withdraw their children from instruction on sensitive topics at odds with the family’s religious commitments. In a more recent decision, the Court sharply questioned a policy to prevent parents from knowing about children’s decisions related to gender in schools, noting “those policies cut out the primary protectors of their children’s best interests: their parents.”
These developments signal a reemergence of appreciation for the essential non-government institutions that underlie ordered liberty.
They recognize that protecting these institutions requires more than an inadequate and misleading slogan like “parental rights.” Legally enforceable rights are important but must be understood in the context of the need for human responsibilities.
Supreme Court decisions on parental authority invariably link protection of rights with a recognition of responsibilities, as the quote from Pierce noted above illustrates. The protection of religious freedom is also grounded in a recognition that people of faith are guided by a sense of accountability to higher authority.
These foundational institutions cannot fulfill their essential responsibilities without autonomy and independence. This is what constitutional protections foster.
Constitutional protections do this in two ways: by enforceable enumerations of government powers and of limitations on those powers. The First Amendment protection of religious exercise and the Fourteenth Amendment protection of “privileges and immunities” are the relevant textual touchpoints in this regard. This creates “spheres of liberty” characterized by the state’s “absence of authority.” In such spheres, religious organizations and fit parents can give authoritative direction. (In cases of manifest harm, of course, the state’s authority is still intact.) Good fences make good neighbors.
Only authoritative institutions, it bears repeating, can make essential contributions. Family and religion perform an educative function far beyond dissemination of information. They provide the modeling and example necessary to learn essential skills on which decent societies depend, and learning by example requires one to “submit to authority.” Authoritative institutions can foster the heroic virtue needed to sustain families and communities in times of stress.
This type of education is “arduous” and “long-term,” so it requires commitment, stability, and sacrifice rather than “contractualist autonomy”. Such commitment is unlikely to flourish where it is subject to interference and interruption by governments attempting to impose ideological goals. Since childhood is both brief and foundational, circumventing parental authority is always consequential.
Children are usually best protected through parents, rather than from them, so driving a wedge between fit parents and vulnerable children leaves children with no inherent protection. Parents are in a unique position of understanding their children, but they also have an “investment” that others do not. Those who have to live with the consequences of the advice they give are most qualified to give it. By contrast, governmental officers are unlikely to “have to live with the many-faceted ramifications of their childrearing decisions.”
It is serendipitous that respect for religious and parental authority are overlapping and mutually reinforcing. As Mary Eberstadt has shown, the decline in faith is largely explained by a decline in family. Conversely, robust belief and family ties strengthen one another and protection of one will better secure the other.
If indeed a “spring” has come for strong religious and family authority, what will be necessary to foster the growth of these shoots?
Here are some very preliminary thoughts.
These legal doctrines need more development to better guide lower courts and other government entities.
In the context of religion, free exercise principles are reasonably well understood, but the principle of church autonomy (that the government lacks jurisdiction to consider and decide questions of religious belief or practice) deserves more attention.
The principles underlying protection of parental authority have only been outlined by existing cases, and largely in the context of education, the site where parents and government are most likely to come into contact. These principles will also have implications for health care and for a host of online activities like access to apps, harmful material, social media, and gambling.
Some core aspects of parental authority that will need articulation and application are:
- The ability of parents to be apprised of how schools, other government entities, and perhaps third parties are interacting with their children. A century ago, the Court recognized the need to facilitate parent-child communication by striking down a law that prohibited instruction in the parents’ native language. Government should facilitate rather than circumvent parent-child relationships.
- The ability of parents to influence (and in the younger years, in particular, to make) decisions about the best interests of their children.
- A real opportunity to influence decisions about policies that will impact children. It is not uncommon for schools, for instance, to allow parents to opt children out of sensitive instruction at odds with their beliefs, but the consent process is usually passive. Active consent requirements are far more protective. Additionally, parents could be given formal and leading roles in committees to develop curriculum. Perhaps particularly sensitive policies could be subject to popular approval by parents in a community.
Two additional considerations should be noted. While broad statements of principle are important, specific statutory protections are essential to avoid parents having to litigate, an expensive and time-consuming process that can effectively be off limits to most. Second, these types of protections are especially critical at local levels where conflicts are more likely to occur and where local preferences can be accommodated.
Stable protections for constitutional principles are not like dandelions that spring up quickly and without effort. They are more like trees that grow over time but are stable, secure, and dependable. As U.S. Justice Clarence Thomas recently reminded us, this will take more than talk. It will require sustained and dedicated effort, but there can be no more noble cause.
