Hanging by a Thread: The Current Supreme Court and Parental Rights
In the 2000 case of Troxel v. Granville, the Supreme Court declared that the right of parents to direct the upbringing and education of their children is a fundamental right, supported by a rich heritage in American law. On its face, this decision is a victory for parental rights, but it 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, they disagreed sharply about their reasons for doing so. Only four of the nine justices on the Court agreed that parental rights were rigorously protected by the Constitution.
Two of these justices — then Chief-Justice William Rehnquist and Justice Sandra Day O’Connor — have since left the Court. The two remaining justices, Stephen Breyer and Ruth Bader Ginsberg, are among the most liberal justices on the Court, and neither have given any indication since Troxel that they will support parental rights in the future.
QUESTIONS AND CONCERNS
Two other justices voted in favor of parental rights in this case, though they disagreed with the reasoning used by the Rehnquist-led plurality. The first of these, Justice David Souter, disagreed that parental rights are fundamental liberties protected by the Constitution, claiming that the Supreme Court has never defined the exact boundaries and guarantees of parental rights.
Conservative jurist Clarence Thomas also sided with the parent in Troxel and acknowledged the Court’s long-standing precedent in favor of parental rights, but later hinted that had the case considered whether the Court had the power to enforce implied rights, he might have changed his decision.
AN UNCERTAIN FUTURE
These six justices formed the unlikely coalition that upheld parental rights in Troxel. The three remaining justices, however, either declined to protect the rights of parents, or denied that these rights even exist.
Justice Antonin Scalia, a conservative and strict-constructionist, felt that parental rights were probably among the “unalienable rights” guaranteed to all Americans, but rejected the parent’s argument in Troxel because the rights of parents are not guaranteed by an explicit provision of the Constitution.
Justices John Paul Stevens and Anthony Kennedy, on the other hand, sided with Justice Souter in the opinion that a protection of parental rights was not part of America’s heritage, asserting instead that courts should weigh parental rights against the interest of the child and the interest of the state. Theories that parental rights were entitled to special presumption were simply “too broad to be correct.”
The two newest justices on the Court, John Roberts and Samuel Alito, do not have a proven voting-record when it comes to parental rights. Even if both of these justices rule that parental rights are “fundamental,” however, the fate of parental rights will hang — at best — on the slender thread of a slim 5-4 majority.
WHY NOW IS THE TIME TO ACT
We can’t afford to take that risk. Parental rights are on precarious ground in our nation today, and we need your help to safeguard the precious child-parent relationship. There is only one way to effectively secure the rights of parents for this generation and the next: a constitutional amendment that protects the child-parent relationship from government intrusion. Join with us today by encouraging your friends to get involved in the battle to protect parental rights.
For additional reading on the topic please see The Attack on Parental Rights section of ParentalRights.org.
