This post will tell of the blow that swiftly and deftly sliced the ancient pillars which protected parental rights in our legal system. I’m no “tree hugger,” but the cutting of these ancient towers down brought me sorrow.
In the year 2000, the traditional defense of parental rights disappeared. In Troxel v. Granville, the Supreme Court demonstrated that it was completely confused on the standard of protection for parental rights. Three points display the confusion well.
First, the Court was dramatically fragmented in its decision. In no less than six different opinions, the Court turned to almost every possible standard for measuring parental rights under the sun. No more than four justices agreed on any one decision, making it a plurality decision.
Second, the long train of parental rights protection which we have previously discussed was noted, mentioned, but not followed by five of the six opinions. Only Justice Clarence Thomas turned to Meyer et al. in making his decision.
How did this happen? We don’t know. But we are already seeing its effects.
The indecision of the court has led to lower court decisions which threaten the longstanding tradition of protecting parental rights. In Blair v. Badenhope, 77 S.W.3d 137 (2002), the Tennessee Supreme Court refused to use the strict scrutiny test for its decision on denying a parent custody of his child. Not only did they refuse to use the strict scrutiny test, they didn’t even mention it! Where did this freedom come from? The Court refused to use it in Troxel.
In 2005, the Maryland Supreme Court also refused to use strict scrutiny for parental rights, even though they cite Troxel where it defends parental rights as a fundamental right. What this indicates is that even if parental rights are viewed as fundamental, they may not receive the legal protection due a fundamental right. The protection we have enjoyed for so long is fading fast. Case in point: we cannot rely on the courts for the protection and preservation of parental rights.
So what is the solution? How do we both respect the rights of states to set child protection laws, while meeting the domestic threats to parental rights? The answer is an amendment to the US Constitution. Judges within our nation are under oath to uphold the Constitution of the United States, meaning that they must consult a Parental Rights Amendment as a preliminary and primary resource for their analysis. The Amendment’s text would solve the confusion of the Supreme Court in Troxel, and return us to the proper standard for protection found in Yoder, Pierce, Meyer, Prince, and Sherbert among others. The rights of parents are protected, while the rights of the government to intervene in cases of child abuse and child neglect are still upheld.