When Religious Freedom Harms Children

The United States protects religious freedom in the first words of its Bill of Rights, and it protects children in every state's criminal code. Most of the time those commitments coexist. When they collide — a child with leukemia whose parents refuse the transfusion, a diabetic child prayed over as she dies, an unvaccinated classroom in a measles outbreak — someone has to decide which yields.

In this TalksOnLaw interview, Joel Cohen sits down with Marci Hamilton, then the Paul R. Verkuil Professor of Public Law at Cardozo, a former clerk to Justice Sandra Day O'Connor, and the author of God vs. the Gavel, whose career has been spent on the line where religious liberty ends and harm to others begins. The conversation runs from vaccination and medical neglect through polygamy, religious exemption statutes, and the constitutional fight over religious autonomy.

Belief Is Absolute; Conduct Is Not

Hamilton opens with the distinction that runs through the whole conversation, from Jefferson through Locke and Mill: the right to believe is unlimited, the right to act on belief ends where it harms someone else. An adult may refuse life-saving treatment for herself. A parent may not refuse it for a child, because every state's law obliges parents to protect their children from abuse, neglect, and preventable death — and children, who do not vote, depend on those laws more than anyone. The First Amendment, she insists, has never required an exemption from a neutral, generally applicable law, whatever parents invoking it believe.

The Fifty-State Vaccine Experiment

The first battleground is vaccination. Hamilton surveys the range: West Virginia and Mississippi allow no nonmedical exemptions, while California's religious-and-philosophical exemption had left a quarter of its schoolchildren exposed and produced a measles outbreak at Disneyland fifteen years after the disease was declared eliminated. Cohen presses on who decides when medical consensus has been wrong before; Hamilton answers that herd immunity is not a matter of opinion, that below roughly ninety percent coverage the diseases return, and that the Amish communities of Pennsylvania have shown the country what that looks like. Her prescription is to eliminate every exemption but the medical one.

Faith Healing and the Nixon-Era Exemption

The second is medical neglect. Hamilton traces the religious exemptions from neglect laws to a condition inserted into federal funding rules in the 1970s at the urging of Christian Scientists, and describes the sects — Followers of Christ, Church of the Firstborn, Faith Assembly — whose children die of diabetes, meningitis, and pneumonia under prayer, hidden from authorities until it is too late. Where a state has the exemption, the parents cannot be prosecuted or sued; where it does not, they have gone to prison in Philadelphia, Oregon, and Wisconsin. She explains the practical bind of the pediatrician who must obtain a court order before overriding a parent, and the halo effect and cognitive dissonance that let a culture tolerate what it would never accept from a secular parent.

The Fourteen-Year-Old's Choice

Hamilton then turns to the mature-minor rules that let a child of fourteen or fifteen choose her own treatment — and recounts the grandmother who called her about a grandson with treatable leukemia whose Jehovah's Witness parents refused blood, and who, asked at fourteen, chose his faith and died within six months. A child's brain, she observes, is not built to weigh the rest of a life, and a child who chooses to live may be choosing to be cut off from family and community forever. The segment closes with a practice from the ultra-Orthodox Jewish community, oral suction during circumcision, that has transmitted herpes to infants, and with New York City's retreat from regulating it — for Hamilton a case study in the political deference that isolates the most vulnerable children from every safety net the rest of society relies on.

Yearning for Zion

Religious exemptions do not stop at the hospital door. Hamilton turns to polygamy, which most Americans assume is history and which the 2008 raid on the FLDS compound in Texas revealed to be a functioning system: a bed in the sanctuary where underage brides consummated marriages before the congregation, lists of men and the girls assigned to them, pregnant children. The Texas Supreme Court returned most of the children; Texas nonetheless prosecuted the men, and Warren Jeffs — who had orchestrated the reassignment of girls across three states for years while authorities there looked away — is serving life. Hamilton explains why the harm is structural: with births split evenly, a man taking multiple wives must reach for younger and younger girls, and a community must discard its surplus boys, the "Lost Boys" abandoned in Salt Lake City and Las Vegas at twelve with nothing. Federal agencies, she argues, have been reluctant to act against religious groups since Waco; Jeffs was caught only because an agent happened to see him at a gas station.

Snakes, Camps, and Conversion

The conversation turns to conduct that would be prosecuted without hesitation in a secular setting: handing a venomous snake to a child in a Pentecostal service, tying a teenager to a tree overnight at an evangelical camp, sending a boy alone into the wilderness as a rite of passage. Hamilton's rule is constant — a neutral law that binds everyone binds the believer — and her complaint is that many states exempt religious summer camps from regulation altogether. She describes conversion therapy for LGBTQ children as the newest front, a practice medical science has found both ineffective and harmful, then the subject of a pending New Jersey trial against a Jewish conversion program, and explains that once the science establishes psychological harm, the ordinary law of child abuse can reach it.

RFRA, Parental Rights, and the Slippery Slope

Hamilton then tells the story of the Religious Freedom Restoration Act from the inside: she argued City of Boerne v. Flores, her first case, and won the 1997 decision holding the federal statute unconstitutional as applied to the states — only to watch Congress re-enact a narrower version and religious lobbyists carry the model to some twenty state legislatures. State RFRAs, she explains, let a believer demand that any law be justified as the least restrictive means of a compelling interest as applied to him personally, a standard she calls the "me, me, me generation" written into law, and they are now raised as defenses in neglect and abuse cases. A newer wave of "parental rights" statutes aims at the same result more directly. Philosophical exemptions from vaccination, she argues, are the natural consequence: once the door is open for religion, everyone else walks through.

Autonomy, Same-Sex Marriage, and the Polygamy Red Herring

The final segment addresses the laws enacted in response to the Supreme Court's same-sex marriage decision — permitting clerks to refuse licenses, religious agencies to refuse adoptions, businesses to refuse service. Hamilton draws one bright line: clergy have an absolute right to decline any sacrament, including a wedding, for any reason. Beyond that, she predicts the new exemptions will fall as unconstitutional discrimination. She closes by dismantling the claim that same-sex marriage leads to polygamy, on grounds of equality (each of four spouses is a fraction of one), of arithmetic (the drive toward child brides and discarded boys), and of the United Nations' judgment that polygamy is a violation of women's human rights.

What to Know Now

On vaccines, the law moved as Hamilton urged. Months after this conversation, California enacted Senate Bill 277, eliminating religious and personal-belief exemptions in the wake of the Disneyland outbreak, and its school-entry vaccination rates rose sharply. New York repealed its religious exemption in June 2019 during the Brooklyn and Rockland County measles outbreaks, and its courts upheld the repeal as a public health measure rather than an act of religious animus; Maine and Connecticut followed. The stakes she described were confirmed in 2025, when a measles outbreak centered in an undervaccinated community in West Texas infected more than 760 people and killed two school-aged children — the first American measles deaths in a decade. On faith healing, the record is mixed: Oregon closed its exemption, but Idaho's remains despite repeated repeal bills, and the deaths she described in that state have continued. New York City in 2015 abandoned its consent-form requirement for the circumcision practice she discusses.

The facts she describes in the second half have largely held; the doctrine has moved against her. Warren Jeffs remains in a Texas prison serving life plus twenty years. The New Jersey conversion-therapy trial she mentions, against the organization JONAH, ended in a 2015 jury verdict for the plaintiffs under the state's consumer fraud law, and roughly half the states went on to ban conversion therapy for minors — but in Chiles v. Salazar (March 2026), the Supreme Court held, eight to one, that Colorado's ban regulates the speech of licensed counselors on the basis of viewpoint and must satisfy strict scrutiny, casting doubt on those laws. State RFRAs now number about twenty-nine. And the post-Obergefell exemptions she expected to be struck down have instead been embraced by the Court: Masterpiece Cakeshop (2018) ruled for the baker on narrow grounds; Fulton v. Philadelphia (2021) held unanimously that Philadelphia could not exclude a Catholic foster agency that refused to certify same-sex couples; 303 Creative (2023) recognized a free-speech right of a web designer to refuse same-sex wedding sites; and Mahmoud v. Taylor (2025) held that public schools must allow religious parents to opt their children out of LGBTQ-inclusive instruction, articulating a parental free-exercise right of the kind Hamilton warned the parental-rights statutes were designed to create. Employment Division v. Smith, the neutral-and-general-law rule at the center of her argument, remains formally intact, but several justices have called for its reconsideration, and the exemptions that flow from Fulton and its successors have narrowed its reach considerably. Hamilton herself left Cardozo for the University of Pennsylvania and founded CHILD USA, the national think tank whose research and advocacy underlie the Child Victims Act and similar statute-of-limitations reforms in dozens of states.