The following text of "Constitutional Rights of Parents" has been
reproduced from: P.A.C.E. The work belongs to Mr. Don Hubin, and he
retains all rights to it. We wholeheartedly support Mr. Hubin's efforts,
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The Constitutional Rights of Parents: Nearly A Century of Consistency in
the U.S. Supreme Court
There are few issues on which the U.S. Supreme Court has spoken so
eloquently--and so consistently--as that of parental rights. In 1923 the
Court asserted that the 'liberty' protected by the Due Process Clause
includes the right of parents to 'establish a home and bring up
children' and 'to control the education of their own.' --Meyer v.
Nebraska, 262 U.S. 390, 399, 401 (1923)--
On June 5, 2000, the Court declared that:
"[I]t cannot now be doubted that the Due Process Clause of the
Fourteenth Amendment protects the fundamental right of parents to make
decisions concerning the care, custody, and control of their children."
--Troxel v. Granville (530 U.S. 2000, or 120 S.Ct. 2054, or also, 147
L.Ed.2d 49)--
Fundamental Constitutional rights are accorded a special status in
judicial review. The Fourteenth Amendment prohibits the state from
depriving any PERSON of 'life, liberty, or property, without due process
of law.' The Court has long recognized that the Due Process Clause
'guarantees more than fair process.' --Washington v. Glucksberg, 521
U.S. 702, 719 (1997).--
It also includes a substantive component that 'provides heightened
protection against government interference with certain fundamental
rights and liberty interests.' Id., at 720; see also --Reno v. Flores,
507 U.S. 292, 301302 (1993).--
The level of scrutiny required for state actions that infringe upon
fundamental rights is 'strict scrutiny,' which requires the state to
show that the infringement serves a 'compelling state interest' and that
there is no Constitutionally less offensive way for the state to satisfy
this compelling interest.
There are sweeping--though seldom appreciated--implications of
recognizing parental rights as Constitutionally fundamental. Domestic
relations courts routinely declare one parent a 'non-custodial parent'
and, thereby, deprive him or her of 'the fundamental right of parents to
make decisions concerning the care, custody, and control' of their
children. This practice has 'a real and appreciable impact on, and
constitutes a significant interference with,' the exercise of a
fundamental Constitutional right. Therefore, 'it cannot now be doubted
that' such a determination interferes with a fundamental constitutional
right.
As a result, the practice must receive the strict scrutiny guaranteed
by the Due Process Clause of the Fourteenth Amendment. This is true
regardless of whether the interference with the right is permanent or
temporary, pendente lite. The Court has held that the deprivation of
fundamental liberty rights 'for even minimal periods of time,
unquestionably constitutes irreparable injury.' --Elrod v. Burns, 96
S.Ct. 2673; 427 U.S. 347, (1976).--
Under the strict scrutiny standard, such a deprivation of rights must
occur only when there is a compelling state interest served by
interfering with these rights and there is no more Constitutionally
benign way to achieve this compelling state interest.
While it is uncontroversial that, under the parens patria doctrine,
the state has a compelling interest in preventing harm to children, this
interest is not sufficient to Constitutionally justify the infringement
in question. The state must show that there is no method of achieving
this state objective that is less offensive to the Constitution than
that of routinely depriving one parent of these fundamental rights.
Where there is clear and convincing evidence that, in the specific case,
the retention of parental rights by both parents would compromise a
compelling state interest, the state may be justified in restricting the
parental rights of one, or both, parents. However, where both parents
are fit, there will normally be no reason for a state to deprive one of
custodial rights.
As the Court declared in Troxel:
"So long as a parent adequately cares for his or her children (i.e.,
is fit), there will normally be no reason for the State to inject itself
into the private realm of the family to further question the ability of
that parent to make the best decisions concerning the rearing of that
parent's children." --Troxel, op. cit.--
The implication of this is that, to be Constitutionally sound, state
law must contain a strong legal presumption of joint legal custody of
minor children upon the divorce of the parents.
The complete history of the Court's rulings on the nature of parental
rights includes also: Pierce v. Society of Sisters, 268 U.S. 510, 534535
(1925); Prince v. Massachusetts, 321 U.S. 158 (1944); Stanley v.
Illinois, 405 U.S. 645, 651 (1972); Wisconsin v. Yoder, 406 U.S. 205,
232 (1972); Quilloin v. Walcott, 434 U.S. 246, 255 (1978); Parham v. J.
R., 442 U.S. 584, 602 (1979); and Santosky v. Kramer, 455 U.S. 745, 753
(1982).
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