The constitutional debate over parental rights: A missed opportunity
In the last of the three-part series, Jeffrey Shulman from Georgetown Law looks at how the 2000 Troxel case was a missed opportunity to give parental rights a constitutional upgrade.
Part III: Troxel v. Granville
If Yoder delivered a special right to religious parents, it did so at some cost to the parentalist cause. (I take the term “parentalist” from the strongly argued essay by Stephen Gilles, On Educating Children: A Parentalist Manifesto, 63U. Chi. L. Rev. 937 (1996)).For the Court’s reliance on a theory of hybrid rights meant that the right to parent, by itself, does not enjoy a fundamental status. In 2000, the Court had the opportunity to give parental rights a constitutional upgrade. In Troxel v. Granville, the Court considered whether a parent is constitutionally entitled to deny visitation rights to a child’s grandparents. Though the Court used the language of fundamental rights, it did not conclude that strict scrutiny was the proper standard of review, settling instead for a mere presumption in favor of a fit parent’s custodial choices.
Read Part 1 Of Series | Read Part 2 Of Series
If merely denominating a right as “fundamental”—multiple times—could make it so, then Justice O’Connor’s plurality opinion would have guaranteed a securely fundamental future for the right to parent. “[T]he interest of parents in the care, custody, and control of their children,” O’Connor wrote, “is perhaps the oldest of the fundamental liberty interests recognized by this Court.” But adjectival excess aside, there is nothing in Troxel to support the conclusion that state regulation of parenting choices should trigger strict scrutiny. Quite the opposite. The Court’s ruling that the visitation preferences of legal parents are entitled only to “some special weight” deeply disappointed advocates of parental rights—and spurred the pursuit of a constitutional amendment to settle the question.
O’Connor cited “extensive precedent” to support her assertion—“It cannot now be doubted,” she wrote—“that the right to parent is a fundamental one.” The problem is not so much that O’Connor quotes her precedents selectively, though that is problem enough, as that she misses what is most significant in these cases: the linkage of rights and responsibilities. It should not have been hard to miss. Prior to Troxel, the Supreme Court had already put its seminal due process parenting cases to their proper use: “In [these] cases, . . . the Court has emphasized the paramount interest in the welfare of children and has noted that the rights of the parents are a counterpart of the responsibilities they have assumed.”
This was the Court’s assessment in Lehr v. Robertson (1983), one in a line of putative father cases where the Supreme Court asked who qualifies as a parent for constitutional purposes. Instead of asking the negative rights question, “What rights belong to the father (or mother)?” the Lehr Court asked the relational question, “What rights and duties are incident to the relationship of parent and child?” Here, the Court put the trust model of parent-child relations to productive use, setting out the parameters of constitutional parenthood:
1. “When an unwed father demonstrates a full commitment to the responsibilities of parenthood by ‘com[ing] forward to participate in the rearing of his child,’ his interest in personal contact with his child acquires substantial protection under the due process clause.”; but
2. “[T]he mere existence of a biological link does not merit equivalent constitutional protection.”
These are the premises supporting the traditional view of parenthood as a delegation of responsibilities. Parental authority, the Lehr Court said, provides an opportunity to develop a relationship with one’s child. Nonetheless, it provides only an opportunity, not a guarantee against state interference: “If [the parent] grasps that opportunity and accepts some measure of responsibility for the child’s future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child’s development. If he fails to do so, the Federal Constitution will not automaticallycompel a state to listen to his opinion of where the child’s best interests lie.”
The linkage of right and duty is the true legacy of the Court’s parenting cases. Constitutional parenthood embraces the Lockean principle that “[c]hildren are born to reason,” a birthright from which arises the parental duty to secure for them “that equal Right that every man hath to his Natural Freedom, without being subjected to the Will or Authority of any other Man.” On this commitment to the child’s self-determination is predicated the Founders’ theory of human dignity and, of particular salience for parent-child relations, the parallel theory of human development—the normative psychology of the law, we might say—that, taken together, sustain the Constitution’s promise of personal as well as political freedom. It is the carrying out of this commitment that defines the trust assumed by parents and against which parental efforts must be constitutionally measured and rewarded.
The idea that parental rights and responsibilities are constitutional counterparts was not missed entirely by the Troxel Court. In separate dissents, Justices Kennedy and Stevens borrowed from the Lehr line of cases to argue that the linkage of right and duty is well adapted to changing family conditions. Kennedy’s “principal concern” was that the Court’s holding “seem[ed] to proceed from the assumption that the parent or parents who resist visitation have always been the child’s primary caregivers and that the third parties who seek visitation have no legitimate and established relationship with the child.” But given the realities of modern family life, the conventional nuclear family cannot serve to establish a visitation or custody standard. “For many boys and girls,” Kennedy observed, “a traditional family with two or even one permanent and caring parent is simply not the reality of their childhood.” A harm standard is simply not appropriate for the many cases “in which a third party, by acting in a caregiving role over a significant period of time, has developed a relationship with a child which is not necessarily subject to absolute parental veto.”
Stevens also spoke to modern times, observing that “[t]he almost infinite variety of family relationships that pervade our ever-changing society strongly counsel against the creation by this Court of a constitutional rule that treats a biological parent’s liberty interest in the care and supervision of her child as an isolated right that may be exercised arbitrarily.” Beyond this, Stevens made the point that even where a developed relationship with a child exists, the right to parent is limited by the fact that parenthood takes place within a web of complementary interests: “These limitations have arisen, not simply out of the definition of parenthood itself, but because of this Court’s assumption that a parent’s interests in a child must be balanced against the State’s long-recognized interests as parens patriae, and, critically, the child’s own complementary interest in preserving relationships that serve her welfare and protection.” Unlike other rights, the right to parent cannot establish “a rigid constitutional shield” that would keep the state from reaching the child absent a showing of harm. The child’s interests are stronger than that. As Stevens cautioned, “[W]e should recognize that there may be circumstances in which a child has a stronger interest at stake than mere protection from serious harm caused by the termination of visitation by a ‘person’ other than a parent.” “[E]ven a fit parent,” Stevens reminds us, “is capable of treating a child like a mere possession.”
When the dust of this fragmented decision settled, there was no clear voice in support of a fundamental due process right to parent, the restriction of which warrants strict scrutiny. The Court declined to address whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm. In his concurrence, Justice Souter would go only so far as to say that “a parent’s interests in the nurture, upbringing, companionship, care, and custody of children are generally protected by the Due Process Clause of the Fourteenth Amendment.” Only Justice Thomas, also concurring in the judgment, argued that strict scrutiny applies to the infringement of parental rights.
Justice Scalia was alone in forthrightly rejecting the Court’s jurisprudence of unenumerated rights. In a decision that disappointed many, his brief dissent was the unkindest cut of all. For parentalists could have no better friend on the Court. In Scalia’s view, “a right of parents to direct the upbringing of their children is among the ‘unalienable Rights’ with which the Declaration of Independence proclaims ‘all men . . . are endowed by their Creator.’” This right, he continued, “is also among the ‘othe[r] [rights] retained by the people’ that the Ninth Amendment says the Constitution’s enumeration of rights ‘shall not be construed to deny or disparage.’” Yet, as Scalia had to concede, the Declaration of Independence “is not a legal prescription conferring powers upon the courts; and the Constitution’s refusal to ‘deny or disparage’ other rights is far removed from affirming any one of them.” And even if the Constitution could be construed to affirm “other rights,” Scalia warned (as had Justice Iredell some two hundred years earlier), it would be beyond the wisdom of judges “to identify what they might be.”
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To say that a parental rights orientation is not deeply rooted in our traditions, even to say that parental rights should not be considered fundamental, is not to declare that a particular policy decision is right or wrong. It is simply to say that it is a question of policy whether and how the state should regulate parent-child relations. Should we allow, say, parents to homeschool their children? Is home schooling in the best interests of the child? Perhaps, perhaps not. Should we allow parents to spank their children? to compel religious observance, against the wishes of the child or against the wishes of a former spouse? to restrict visitation from third parties? The questions are as varied as the myriad duties parents undertake. If we think of parenting as a set of responsibilities, not rights, we will not all miraculously reach the same legal and cultural prescriptions—even the prescriptions we individually reach may not always fall into neat ideological (conservative or liberal) categories—but we will think of these questions as matters fit for democratic deliberation. It is by granting parents the right to homeschool children or compel religious observance or restrict third-party visitation—or, more generally speaking, by giving parents the right to bring up their children as they see fit—that parental rights advocates would forestall public debate on deeply contentious questions relating to the care and welfare of children. They would take these questions out of the public domain, keeping the home under constitutional lock and key.
Soon after Troxel was decided, Justice O’Connor repeated the formulation that parents have a “fundamental liberty interest . . . in the care, custody, and management of their child.” Whatever O’Connor might have meant by “fundamental,” she did not mean the kind of interest that mandates strict scrutiny. In O’Connor’s words,
[T]he adjudication of constitutional disputes does not necessarily translate to the effective resolution of family disputes. While constitutional due process doctrine is primarily concerned with the relationship of individuals to the State, the resolution of family disputes focuses primarily on the relationship of individuals with each other. . . . Accordingly, family law is—and must be—a collaborative enterprise. . . . Underlying each family law case that reaches us are issues of state law and policy, as well as an actual family with its own dynamics, challenges, and problems.
For more than two centuries the “actual family” has remained at the center of family dispute resolution. It is the rights orientation that breaks with deeply rooted legal traditions and cultural values, rejecting time-honored trust principles of family law meant to protect both private and public interests. If we better understand that, as a descriptive matter, the right to parent is at odds with a cultural tradition of shared responsibility for the welfare of the child, we might be more ready to ask whether, as a normative matter, the right to parent should have a fundamental status in the law. We might be more willing to consider how old equitable principles can lead to new ways of accommodating the interests of parent, child, and state.
It is no small irony that parental rights advocates would undo a collaborative enterprise that for so long has sought to serve the best interests of the child. To this end, it is asserted that, historically, parents enjoyed a fundamental personal right to control the upbringing of their children and, accordingly, that state interference with the right to parent must pass the rigors of strict scrutiny. This assertion is fundamentally wrong.
Jeffrey Shulman teaches constitutional family law at Georgetown Law. This piece is drawn from his new book “The Constitutional Parent: Rights, Responsibilities, and the Enfranchisement of the Child” (Yale University Press, 2014).
