| FOR FURTHER READING The Current Status of Parental Rights The Threat from Federal Courts The Threat of International Law What the Supreme Court Says |
Support for parental rights has been gradually eroding within the federal court system for years. Many judges are denying parental rights or refusing to recognize them—at the expense of countless American families. Their reasons for devaluing parental rights vary, but the danger to the child-parent relationship remains critical.
The threat to parental rights coming from within the federal courts has not arisen without warning. In spite of the fact that parental rights have been respected and upheld in this nation for centuries, support from judges for the parental role has been dwindling in recent years.
SOBERING WARNINGS
The most recent Supreme Court case to address parental rights is the 2000 case of Troxel v. Granville, where the Court ruled that a Washington State grandparent-visitation statute failed to respect "the fundamental right of parents to make decisions concerning the care, custody, and control of their children."
Citing extensive case precedent, the Court declared that the right of parents to direct the upbringing and education of their children is a fundamental right, with a rich heritage in American law. The Court also found that the grandparent-visitation statute did not respect the fundamental rights of parents, but instead gave preference to what the state deemed to be in the child's best interest. Because of the fundamental nature of parental rights, the government could not overrule a parent’s decision simply by questioning that decision.
But despite these strong statements and a favorable outcome, the Troxel case also contains some sobering warnings about the future of parental rights in America.
AN UNCERTAIN FOUNDATION
Although a total of six Supreme Court justices ultimately sided with the parent in Troxel, the Court had difficulty agreeing on the precise legal status of parental rights. Only four of the justices – one short of the required five justices needed to form a solid majority – agreed in the opinion that parental rights were fundamental, implied rights that were protected by the Constitution.
Two of these justices, then-Chief-Justice William Rhenquist and Justice Sandra Day O'Connor, have since left the Court. The two remaining justices, Stephen Breyer and Ruth Bader Ginsberg, upheld parental rights in Troxel, but since then have not given any indication that they will do so again in the future. It was this unlikely coalition, composed of former and current justices that gave parents the victory in 2000.
HOSTILITY TO PARENTAL RIGHTS
Justice David Souter was the fifth judge to vote for the parent in Troxel, but he refused to support the decision penned by the other four justices. In his concurring opinion, Souter disagreed that parental rights were fundamental, insisting instead that the Supreme Court has never "set out exact metes and bounds to the protected interest of a parent in the relationship with his child." Souter then concluded that whatever the proper status of parental rights was, the Washington Statute violated it by allowing visitation by "any party" at "any time" a judge believed he could make a "better" decision.
Although Souter voted for the parent in Troxel, his assertion that the Supreme Court has never defined the extent of parental liberty leaves serious questions about whether he would support parental rights in the future.
THOMAS AND "ORIGINAL INTENT"
Justice Clarence Thomas was the final judge to rule that the Washington visitation statute violated parental rights. Like Souter, however, Thomas refused to join the majority's opinion because he did not fully support the reasoning of the Court.
In his concurring opinion, Thomas noted that neither Troxel nor the Granvilles had questioned whether the Supreme Court could even recognize implied rights, and suggested that if the argument had been raised, he might have voted differently. Since the issue was never raised, however, Thomas voted for parental rights in order to remain consistent with the Court’s extensive precedents.
These six justices formed the unlikely coalition that supported parental rights in the Troxel decision. The three remaining justices, however, either declined to protect the rights of parents, or denied that these rights even existed.
SCALIA AND "IMPLIED RIGHTS"
The first of these justices, Antonin Scalia, rejected the parent's argument in Troxel because the rights of parents are not guaranteed by an express provision of the Constitution. Scalia is an adherent of "textualism," meaning that he believes the role of the Supreme Court is to apply the requirements of the Constitution as-written, instead of reading additional meanings into its text in order to meet the changing needs of society.
Thus, even though Scalia agreed that parental rights were probably among the "unalienable rights" of Americans, the Court did not have the authority to enforce them because they have not been explicitly recognized in the Constitution. Scalia feared that if the Court recognized an implied right, the courts could reinterpret and redefine that right at will, which would allow the courts to freely interfere with family law whenever they wished.
STEVENS, KENNEDY, AND THE "BALANCING ACT"
The two remaining justices on the Court –John Paul Stevens and Anthony Kennedy – refused to acknowledge the fundamental nature of parental rights or their place in our history. Instead, these justices urged that the rights of parents be balanced equally against additional interests, and that the Court should determine which interests should prevail.
Justice Kennedy denied that parental rights should always be protected as fundamental rights, claiming that such a theory is "too broad to be correct." In his disenting opinion, Kennedy disputes America’s long-standing respect for parental rights, bodly asserting that "'our Nation's history, legal traditions, and practices' do not give us clear or definitive answers" about the nature of these rights. Kennedy also contended that the "best interests of the child standard" has become a staple of family law, and could also enter into the judicial equation as another interest to be weighed against the rights of parents.
Justice Stevens went one step further and claimed that a third set of interests should always be introduced into the equation: the interests of the state. Stevens agreed that parental rights are certainly among "the constellation of liberties" protected by the Constitution, but also contended that the state has responsibilities when it comes to the care of children, and that "children are in many circumstances possessed of constitutionally protected rights and liberties" as well. In Steven's view, when the interests of parents, the state, and the child conflict, the job of the Supreme Court is to balance these competing interests and determine what actions best serve the interest of the child.
The views of Kennedy and Stevens represent a very dramatic departure from the previous precedents of the Court. These justices reject both the fundamental nature of parental rights and their place in America's heritage, and instead assert that the rights of parents should be weighed against the interests of their children.
THE UNKNOWN
Finally, it remains to be seen how the two newest members of the Court – Chief Justice John Roberts and Justice Samuel Alito – will vote when it comes to parental rights. Both are considered to be conservative justices, but as the records of Thomas and Scalia demonstrate, they could fall either way on the issue of parental rights. Furthermore, even if both of these justices rule that parental rights are "fundamental," the fate of parental rights will hang on the slender thread of a slim 5-4 majority.
The vital relationship between child and parent is far too precious to be entrusted to such slender odds, but if we rely on the Supreme Court to guarantee our freedoms, these are precisely the odds we are risking.
