Thursday, September 2, 2010

The Centaur Scrolls: The Legal Argument for Parental Rights, Part II


In the last scroll I wrote to you about the precedent of the Court up through its 1972 decision in Wisconsin v. Yoder. Now I want to take you from 1972 up until the turn of the century, so that you will catch a glimpse of just how often the Court had protected parental rights (since we will not examine every case that they ruled in favor of parental rights). This will set us up nicely for the shocking truth in the next article, regarding the dramatic and abrupt turn away from protecting parental rights in Troxel v. Granville.

In 1978, the Supreme Court in Quilloin v. Walcott upheld its decision in Prince v. Massachusetts (1944), where they stated that “It is cardinal with us that the custody, care and nurture of the child reside first in the parents.” Both Prince and Quilloin tied back to Meyer and Pierce, which were discussed in the last scroll. The Quilloin decision followed on the heels of Smith v. Organization of Foster Families in 1977, where the Court stated that “the liberty interest in family privacy has its source, and its contours are ordinarily to be sought, not in state law, but in intrinsic human rights.”

The 1980s saw even greater protection for parental rights. Citing back to Stanley v. Illinois, in Lassiter v. Dept. of Social Services in 1981, the Court held that “this Court's decisions have by now made plain . . . that a parent's desire for and right to ‘the companionship, care, custody, and management of his or her children’ is an important interest that ‘undeniably warrants deference and, absent a powerful countervailing interest, protection.’” In 1982, Justice Blackmun described parental rights as constituting a “fundamental liberty interest” in Santosky v. Kramer, and that these rights have a “critical need for procedural protections” because of this liberty interest. And again, both Lassiter and Santosky ties back to Meyer and Pierce.

In M.L.B. v. SL.J. in 1996, the Court also defended the rights of parents, stating that “choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as ‘of basic importance in our society,’” tying back to Boddie v. Connecticut in 1971. In all of these cases, parental rights were protected as fundamental rights.

Now, I know that there were a lot of cases suddenly thrust upon you, so this is what I want you to take away: there is a longstanding, highly respected history for the protection of parental rights dating back to two central cases: Meyer and Pierce. When the Supreme Court (or any lower court) faces a question regarding how much protection should be given to parental rights, there is a long tradition of protection which should not be ignored. For over seventy years, the Court was very clear on the standard for parental rights were: it’s a fundamental right, deserving strict scrutiny (which we will discuss later).

Why did I take all of this time laying out the issue? There are myriad cases which were not addressed in this or the preceding article – why do we write so much about it? Because everything changed in the year 2000, and no one knows why. But that is a discussion for another day.


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