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Cardozo Law Review

Abstract

The U.S. legal system, structured around parental authority, consistently mediates and contains minors’ constitutional claims, particularly in areas involving bodily autonomy, identity, and education. In doing so, the law treats minors in a property-like manner and leaves them poorly positioned for civic formation. This Article diagnoses how this approach has produced an inconsistent regulatory framework governing minority and parenthood, one that limits children’s ability to develop as citizens and reinforces inequality within the family and society, especially regarding sex, sexual orientation, and gender identity and expression (“SSOGIE”). By canvassing the U.S. Supreme Court’s jurisprudence, this Article shows that minors’ rights are largely understood as extensions of parental rights and the State’s parens patriae power rather than as independent constitutional protections. This doctrinal structure constrains minors’ liberties and enables their instrumentalization in service of parental, state, and third-party agendas. The result is a system of partial citizenship in which minors are recognized as rights-holders in principle but subordinated in practice. Recent developments further intensify these harms, as parental rights and parens patriae have been increasingly weaponized against minors’ autonomy, particularly in anti-LGBTQ+ litigation. As a consequence, existing constitutional doctrine has become progressively less capable of protecting children’s agency, equality, and civic development. Rather than proposing a new theory of minority/parenthood to resolve these issues, this Article argues that the constitutional resources necessary to protect minors’ agency already exist but have been obscured by doctrines that privilege parental authority and state control. Drawing on existing accounts of minority/parenthood while addressing their limitations, the Article advances an approach grounded in existing legal principles, including the recognition of minors as rights-holders, civic learners, and constitutional equals. It rejects rigid maturity-based models in favor of one grounded in evolving agency and procedural legitimacy. Designed to remedy the limitations of current approaches to minority/parenthood, the Article introduces the Triadic Convergence/Divergence Adjudicative Framework, a relational model for constitutional decision-making that restructures the relationship among minors, parents, and the State by centering minors’ agency. By embedding epistemic and procedural safeguards, the framework offers a structured method for resolving conflicts, limits parental exceptionalism, and promotes doctrinal coherence. In doing so, it advances minors’ autonomy, restores civic education as a constitutional project, and provides a pathway to address the growing weaponization of rights against SSOGIE equality. In an era marked by the weaponization of rights, the proposed framework serves a critical stabilizing function by providing a transparent and administrable method for protecting minors’ voices, agency, and equal constitutional standing.

Disciplines

Family Law

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Family Law Commons

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