The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Minors' Religious Practices as Legally and Constitutionally Protected Against Regulations Aimed at Preventing "Addiction"
I'm serializing my forthcoming Emory Law Journal article titled Addiction to Constitutionally Protected Activity: Speech, Press, and Religion. In my first two posts, I argued that calls to regulate social media platforms and video games on the theory that they are "addictive" could equally plausibly be made with regard to various religious practices, which seem to share some of the supposedly "addictive" properties—yet of course the Free Exercise Clause would preclude such regulation, at least as to adults. Here's where I also apply that to attempts aimed at shielding children from supposedly addictive religious practices; in coming posts, I'll talk about how this reasoning also applies to attempts aimed at shielding adults and children from supposedly "addictive" speech products:
[* * *]
So far, we have been speaking of the religious freedom rights of adults, and of religious organizations that deal with adults. But the Free Exercise Clause would also likely impose serious constraints on attempts, aimed at preventing "addiction of minors," to restrict religious organizations' conduct and speech.
[1.] "Addictive" practices promoted by parents
To begin with, say adults deliberately get their children involved in a religious institution or community, in a way that foreseeably (or even intentionally) makes the child emotionally dependent on that belief system and its practices. Indeed, say that there may be some plausible reason to think that this will lead to long-term emotional or financial harm to the children—for instance, by making them feel bad about their sexual desires or their sexual preferences, by teaching children that there are certain jobs or life paths that they shouldn't take because of what sex they are, or by depriving them of access to a quality secular education, leaving them ill-prepared for work.[48] Say that there is evidence that it's hard for people who grow up in the particular community to leave it as adults, even if they are dissatisfied with its teachings: They may feel fearful of damnation, or concerned about the possible loss of relationships with family members and friends.[49]
Yet it seems clear that, even under these circumstances, the Free Exercise Clause would preclude the government from trying to interfere with such parental attempts to inculcate religious beliefs into their children. Parents, for instance, have a constitutional right to send their children to private religious schools, including when they do so precisely to make sure that the children are properly taught the parents' religious beliefs.[50] Likewise, I take it that the government can't order churches to exclude children from certain programs that are seen as unduly psychologically addictive. And the government can't order religious web sites to take steps to make sure that certain religious teachings of those sites aren't accessed by minors.
To be sure, here too the government has some authority to protect children, even against their parents. But that can generally be done only through generally applicable, religion-neutral restrictions mandates or restrictions focused on harmful conduct.[51] A law that targets religious speech or association because of its supposedly psychologically addictive features would not, I think, qualify.
[2.] "Addictive" practices tolerated by parents
I think the same is likely with regard to religious practices that the child engages in with the toleration of his or her parents, even if they aren't driven by the parents' own preferences. Older minors sometimes do adopt religious views that differ from their parents': One survey, for instance, reported that 12% of mainline Protestant parents' children age 13 to 17 identified as evangelical rather than mainline.[52] That may not be a huge percentage, but it would be a high absolute number, likely representing hundreds of thousands of teenagers, just in mainline Protestant families.[53] I expect there are also hundreds of thousands of teenage children of irreligious parents who are adherents of some religion.[54]
Here too, I don't think the Free Exercise Clause would allow restrictions focused on supposedly psychologically addictive behaviors aimed at those children, so long as the parents tolerate the children's religious affiliations. A law couldn't, for instance, try to regulate churches' teaching of minors who aren't children of church members, or web sites' communications to minors who are taking the lead on developing their own religious identities. To quote the Court in Brown v. Entertainment Merchants Association (the violent video game case), it could not "be made criminal to admit a person under 18 to church, or to give a person under 18 a religious tract, without his parents' prior consent": Such a law would "obviously [be] an infringement upon the religious freedom of young people and those who wish to proselytize young people."[55]
[3.] Supporting parents' ability to restrict children's religious activities
To be sure, if parents don't want to let their minor children engage in various religious activities—whether because the parents fear the activities are addictive or because they just disapprove of the activities—they have considerable tools at their disposal. They can forbid their children from, say, going to some religious group's meetings or visiting some religious websites. They can threaten to withdraw various privileges if the children violate the prohibition.
They can presumably call on police to bring back minor children who, say, have run off to join some religious community or even to participate in some worship service. They may be able to sue anyone who entices their children to leave their parent for an extended time, knowing that the parents object: "One who, with knowledge that the parent does not consent, abducts or otherwise compels or induces a minor child to leave a parent legally entitled to its custody or not to return to the parent after it has been left him, is subject to liability to the parent."[56] That may include enticing the children to join a religious residential community.[57]
Perhaps they can also get an injunction or a restraining order forbidding such inducement or "harboring"[58] of a minor child. And such inducers and harborers might also be criminally punishable.[59] None of this would require any evidence of anything like addiction or manipulation, and indeed these principles apply equally to nonreligious inducement.
But these mechanisms for enforcing parental control are focused on enticement for the children to physically leave objecting parents. "Induced defiance of parental authority, without physical absence of the minor child from the home, is not enough to establish liability . . . ."[60] I know of no precedents that would, for instance, allow the state to generally forbid religious speech to minors, or forbid religious web sites or online communities from being accessible to minors, even when the parents have indicated that they do not want their minors communicated with. And even if there might possibly be "no contact" orders issued in favor of parents who want to block communication to their children from specifically identified supposedly malign outsiders,[61] that could not justify broad restrictions on sites that communicate with a wide range of unidentified minors, whose parents have never demanded that their children not be allowed to access those sites.
[48] See, e.g., Eliza Shapiro & Brian M. Rosenthal, In Hasidic Enclaves, Failing Private Schools Flush With Public Money, N.Y. Times, Sept. 12, 2022 (reporting that Hasidic boys' schools provide minimal secular education, including little English and math and virtually no science or history, resulting in high rates of failed standardized tests and difficulty finding employment).
[49] See Paul v. Watchtower Bible & Tract Soc. of New York, Inc., 819 F.2d 875, 883 (9th Cir. 1987) (describing a religious group's practice of shunning members who leave, and holding that there can be no tort liability for such shunning).
[50] Pierce v. Society of Sisters, 268 U.S. 510 (1925).
[51] See, e.g., Prince v. Massachusetts, 321 U.S. 158 (1944); cases requiring medical treatment of minors.
[52] Jeff Diamant & Elizabeth Podrebarac Sciupac, 10 Key Findings about the Religious Lives of U.S. Teens and Their Parents, Pew Research Center (Sept. 10, 2020), https://www.pewresearch.org/short-reads/2020/09/10/10-key-findings-about-the-religious-lives-of-u-s-teens-and-their-parents/.
[53] 11% of adults identify as mainline Protestants, 2023–24 U.S. Religious Landscape Study Interactive Database (2025), https://www.pewresearch.org/?post_type=rls, and there are likely about 20 million 13-to-17-year-olds in the United States. If it follows that about 11% of 13-to-17-year-olds are likewise in mainline Protestant families (a good first approximation, even if the family size of various groups may vary in some measure based on religion), that suggests that 2 million or so of 13-to-17-year-olds are children of mainline Protestant parents, so about 250,000 or so would be evangelical Protestant children of mainline Protestant parents.
[54] See, e.g., Pew Research Center, Shared Beliefs Between Parents and Teens, Sept. 10, 2020, https://www.pewresearch.org/religion/2020/09/10/shared-beliefs-between-parents-and-teens/ (reporting that 6% of 13-to-17-year-old children of religiously "[u]naffiliated" parents have "quite different" religious beliefs from those parents). 29% of adults identify as unaffiliated, Religious Landscape Study, supra note 53, so performing the same calculation as in note 53, about 350,000 of 13-to-17-year-olds would likely be non-religiously-unaffiliated children of unaffiliated parents.
[55] Brown v. Entm't Merchants Ass'n, 564 U.S. 786, 795 n.3 (2011).
[56] Restatement (Second) of Torts § 700.
[57] See, e.g., Murphy v. I.S.K. Con. of New England, Inc., 409 Mass. 842, 859–60 (1991) (cleaned up):
The common law has traditionally recognized a parent's interest in freedom from tortious conduct harming his relationship with his child, and the parent may be compensated therefor when there is interference with the normal parent-child relationship. [Such] tortious conduct . . . includes the abduction, enticement, and harboring and secreting of minor children from their parents, or in other words, the intentional interference with parental interests or rights. . . . Abduction is the physical taking of a minor child from the parent having legal custody. An action for enticement will lie where one, through an "active and wrongful effort" and knowing that the parent does not consent, induces a child to leave the parent's home. One "harbors" a minor child by inducing or encouraging a child, who is away from the parent without the parent's consent, to remain away from the parent. Liability for harboring a child will not be found, however, unless the actor knows or has reason to know that the child is away from the parent without the parent's consent. Implicit in each action is the requirement that the child be physically absent from the home for a continuous period of time. To allow recovery for interference with parental interests without physical absence of the minor child from the home would be to allow an action for alienation of affections, for which recovery cannot be had.
[58] Murphy, 409 Mass. at 860.
[59] See, e.g., Little v. State, 246 S.W.3d 391, 399 (Tex. App. 2008) (allowing liability when defendants "played upon Abigail's religious convictions by telling her Walter was her God-given father; they were her God-given family; and God preordained that she should come live with them," "encouraged Abigail to disobey and lie to her mother in order to conduct clandestine communications contrary to her mother's wishes," and "when Abigail agreed to run away from her mother's home, . . . suppl[ied] the manner, means, and opportunity for her to leave her home and remain secreted from her mother for a period of nineteen hours").
[60] Murphy, 409 Mass. at 860 n.17.
[61] See, e.g., Brekke v. Wills, 125 Cal. App. 4th 1400 (2005) (upholding a no contact order forbidding a 15-year-old's 16-year-old ex-boyfriend from contacting her, on the theory that "Defendant has no right to associate with Danielle, who is a minor child"); cf. Doe v. Mastoloni, No. 3:14-CV-00718 (CSH), 2016 WL 593439, *9 (D. Conn. Feb. 12, 2016) (concluding that public school teachers' "indoctrinating" particular students "into a religious cult" may violate the Establishment Clause, and may violate the parents' "parental right to raise their children in the religion of their choice . . . as guaranteed by the Free Exercise Clause . . . and Due Process Clause"). Likewise, the Court in Brown suggested that "perhaps" "the state has the power to enforce parental prohibitions—to require, for example, that the promoters of a rock concert exclude those minors whose parents have advised the promoters that their children are forbidden to attend." 564 U.S. at 795 n.3. The analogy drawn in the same footnote to religious freedom suggests that "perhaps" the same could be done for organizers of religious events, if parents indeed expressly demand that the organizers not allow their children to attend.
