In a previous post, I demonstrated the past precedent for parental rights, up until 1972. There are a number of other useful cases (Prince v. Massachusetts, Quilloin v. Walcott, and Santosky v. Kramer among others) that were mentioned subsequently, but Meyer, Pierce, and Yoder summarize the issue succinctly.
What I didn’t mention in those cases, however, was the standard of review for rights that are fundamental in nature, such as parental rights. I want to take some time now to do that.
In Wisconsin v. Yoder, Justice Burger draws on the principle which has provided the protection for parental rights over the centuries: the standard of protection for fundamental rights. Citing back to Sherbert v. Verner in 1963, Prince v. Massachusetts in 1944, and other cases, Justice Burger writes that only “those interests of the highest order and those not otherwise served” are compelling enough to justify limiting a fundamental right.
What does this phrase, “[government] interests of the highest order and those not otherwise served,” mean?
First, it is very specific. In order for the government to have a “compelling governmental interest of the highest order,” the government must prove that there is a situation which threatens an important government priority. This “compelling governmental interest” is not defined as “a whim of the government,” or “a passing fancy in domestic policy.” A “compelling governmental interest” must be a fundamental function of government essential to its role as governor.
A compelling interest “not otherwise served” is an interest which can only be accomplished by limiting the right. This is important: if there is another means of accomplishing the task at hand, the government is obligated to pursue that alternate option instead of limiting the fundamental right. This was the standard for restricting parental rights laid out in Yoder.
A case study is helpful in understanding this otherwise vague and abstract theory. In the case of parental rights, child abuse and child neglect have routinely been upheld as compelling interests of the highest order (protecting citizens) not otherwise served (the only way to protect the victim is to remove him/her from the home environment, and specifically from the abusive parent). All that is required for law enforcement to rightly limit parental rights is to have proof of abuse—the usual requirement for removal of a child from his home.
We uphold state child protection laws with this standard already; the only thing that changes under the Amendment are cases involving the prosecution of parents in which no evidence of child abuse exists, and those parents shouldn’t be tried for abuse in the first place.
The important thing to realize about strict scrutiny test is that by 1972, parental rights were very well-protected. They looked as if they would never need further defense, since they were adequately defended by both the Supreme Court and state lawmakers. The next article will tell you how all of that changed.