Children's Associational Rights? Why Less Is More

Abstract

This article argues against recognizing children's associational rights, despite compelling calls for such rights in the face of controversial court decisions. The argument is grounded on pragmatic, rather than conceptual, opposition to these rights. While children's interest in maintaining important relationships is at least as great as the parallel interest of adults, children cannot assert those interests on their own. As a result, children are necessarily dependent on some adult surrogate, or group of surrogates, to exercise these rights. The article considers each of these surrogates in turn (interested third parties, lawyers, guardians ad litem, evaluating psychologists, and judges), and concludes that none is in a position to identify a child's associational interests better than the child's parents (the default surrogates in a no-rights world). The article also suggests that invoking children's rights rhetoric, when children have so little control over the associational choices made in their name, risks exploiting children to serve the ends of adults. This piece was written for the symposium on children's associational rights convened by William and Mary's Institute of Bill of Rights Law.