In a discussion with an acquaintance about parental rights, I was directed to the following article by Mr. Kerry Morgan, J.D., which I found very interesting. I understand where he is coming from, but, with all respect, I think he misses the point of the Parental Rights Amendment which is marching through the US Congress.
He makes the argument:
"But the federal amendment also empowers both the United States and every state government to infringe upon this “fundamental” parental right. If the government can demonstrate “that its governmental interest as applied to the person is of the highest order and not otherwise served” the parent’s fundamental right must yield....Protection of parental rights ought to be accomplished on a state to state basis."
Now, I understand his concern: any grant of authority for the government to restrict a fundamental right must be weighed carefully. But the misunderstanding arises from the fact that the words used in the Amendment have a very specific meaning, tied to very specific circumstances, with a very high burden of proof.
The wording for Section Two of the Amendment (which is the wording that he takes issue with) is taken from Wisconsin v. Yoder, which the Supreme Court decided in 1972. In Yoder, the Supreme Court upheld parental rights as fundamental, tying back to decisions made almost 50 years earlier, and a tradition which has been recognized as integral to our culture and critical to our society for centuries. According to the Court, however, fundamental rights are not "weak" as Mr. Morgan would suggest; instead of just proving that the government interest is reasonable, the government must meet the highest standard of proof in the legal realm.
The Court cited back to Sherbert v. Verner, decided in 1967, where the Court famously laid out the three-part "Lemon" test for restricting a fundamental right (it was articulated before Sherbert in Lemon v. Kurtzman, and thus is sometimes referred to as the "Lemon Test"). The test includes:
1. That the government's interest be of the highest order. This is not defined as merely what the government thinks important, but an interest essential and integral to the very existence and role of government (protection of citizens, for example),
2. That this interest cannot be otherwise served. If there is another way of accomplishing this compelling interest without restricting the right, we should pursue that course of action, and
3. That the means of accomplishing this interest be narrowly tailored to place as little restriction on the right than is necessary to accomplish that interest.
What, then, would be required to prove that the government's "interest as applied to the person is of the highest order and not otherwise served"? A common example from family law is helpful to understanding how the test would be applied to parental rights.
In the case of child abuse and child neglect, the government has an interest of the highest order: protecting its citizens. The only way to protect these citizens, however, is to remove them from the abusive environment (restricting parental rights to custody). But this interest does not authorize them to barge into any house upon little to no evidence of child abuse, since that would unduly infringe on parental rights. Thus the Parental Rights Amendment would protect parents who are falsely accused of child abuse, while still allowing law enforcement to protect those who are truly in danger.
Notice how well-protected parental rights are: the burden of proof is on the government to show that their intervention is absolutely necessary. This is not a "weak" right.
His argument for state laws is also interesting. He mentions the threat of "an abusive Congress" in the article, but fails to demonstrate how a state law--or even state constitutional amendment--would protect the citizens of the state from said abusive Congress. The only way to keep Congress, the Courts, or any government entity--even international entities--from infringing on parental rights is to protect it in the Constitution.
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