[House Hearing, 112 Congress]
[From the U.S. Government Printing Office]
PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES
RELATING TO PARENTAL RIGHTS
SUBCOMMITTEE ON THE CONSTITUTION
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
H.J. RES. 110
JULY 18, 2012
Serial No. 112-138
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina JERROLD NADLER, New York
ELTON GALLEGLY, California ROBERT C. ``BOBBY'' SCOTT,
BOB GOODLATTE, Virginia Virginia
DANIEL E. LUNGREN, California MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana MAXINE WATERS, California
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio MIKE QUIGLEY, Illinois
TED POE, Texas JUDY CHU, California
JASON CHAFFETZ, Utah TED DEUTCH, Florida
TIM GRIFFIN, Arkansas LINDA T. SANCHEZ, California
TOM MARINO, Pennsylvania JARED POLIS, Colorado
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
MARK AMODEI, Nevada
Richard Hertling, Staff Director and Chief Counsel
Perry Apelbaum, Minority Staff Director and Chief Counsel
Subcommittee on the Constitution
TRENT FRANKS, Arizona, Chairman
MIKE PENCE, Indiana, Vice-Chairman
STEVE CHABOT, Ohio JERROLD NADLER, New York
J. RANDY FORBES, Virginia MIKE QUIGLEY, Illinois
STEVE KING, Iowa JOHN CONYERS, Jr., Michigan
JIM JORDAN, Ohio ROBERT C. ``BOBBY'' SCOTT,
Paul B. Taylor, Chief Counsel
David Lachmann, Minority Staff Director
C O N T E N T S
JULY 18, 2012
H.J. Res. 110, Proposing an amendment to the Constitution of the
United States relating to parental rights...................... 3
The Honorable Trent Franks, a Representative in Congress from the
State of Arizona, and Chairman, Subcommittee on the
Michael Farris, J.D., LL.M. Chancellor, Patrick Henry College
Oral Testimony................................................. 6
Prepared Statement............................................. 7
Martin Guggenheim, Fiorello LaGuardia Professor of Clinical Law,
New York University School of Law
Oral Testimony................................................. 11
Prepared Statement............................................. 14
Piero A. Tozzi, Senior Legal Counsel, Alliance Defending Freedom
Oral Testimony................................................. 20
Prepared Statement............................................. 22
Material Submitted for the Hearing Record
Material submitted by the Honorable Trent Franks, a
Representative in Congress from the State of Arizona, and
Chairman, Subcommittee on the Constitution..................... 46
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, Ranking
Member, Committee on the Judiciary, and Member, Subcommittee on
the Constitution............................................... 94
PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES
RELATING TO PARENTAL RIGHTS
WEDNESDAY, JULY 18, 2012
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
The Subcommittee met, pursuant to call, at 12:35 p.m., in
room 2141, Rayburn House Office Building, the Honorable Trent
Franks (Chairman of the Subcommittee) presiding.
Present: Representatives Franks, King, Conyers, and Scott.
Staff Present: (Majority) Jacki Pick, Counsel; Sarah Vance,
Clerk; (Minority) David Lachmann, Subcommittee Staff Director;
and Veronica Eligan, Professional Staff Member.
Mr. Franks. Pursuant to notice, the Subcommittee on the
Constitution meets today to consider H.J. Res. 110, ``Proposing
an amendment to the Constitution of the United States relating
to parental rights.''
The question at the heart of the growing debate over
parental rights is the same question that was at the heart of
the American Revolution more than two centuries ago: What is
the source of our rights? The European model held that God gave
authority to kings and the government that would hold the
rights of men in their hands. The Americans reverse engineered
this model and recognized the true foundation of human dignity.
We held these truths to be self-evident, that all men are
created equal, and that they are all endowed by their creator
with certain inalienable rights, and that government does not
create those rights but merely exists to secure them. The State
exists to preserve freedom.
Less than 100 years ago, no American would have believed we
would ever need to enact laws to protect the rights of parents
to direct the care and upbringing of their children because
this right was considered so integral to our way of life and
our rule of law. The Supreme Court affirmed this fact in its
1925 decision in Pierce v. Society of Sisters when it stated:
``The child is not the mere creature of the State, those who
nurture him and direct his destiny have the right, coupled with
the high duty, to recognize and prepare him for additional
Almost 50 years later, in the 1972 case of Wisconsin v.
Yoder, the court reaffirmed this fundamental principle by
stating: ``The primary role of the parents in the upbringing of
their children is now established beyond debate as an enduring
The Supreme Court has thus recognized parental rights as
fundamental rights which cannot be violated unless the State
proves it has an ``interest of the highest order which cannot
be otherwise served.''
The integrity of parental rights was threatened however in
2000 when the U.S. Supreme Court decided Troxel v. Granville. A
four-judge plurality described parental rights as a
fundamental, historically, but then declined to use this strict
scrutiny test that attaches to this status.
In the wake of Troxel, Federal and State courts have
permitted governmental intrusions onto parental rights ranging
from the choice of a school to the most basic aspects of child
rearing. State legislatures have restricted parental access to
educational information, health records and even a list of
books and media items that their children borrow from the
library. Such mandates radically change the long-established
authority structure between families and government by forcibly
inserting the State between parent and child.
Parental rights also face external threats. International
law, including widely ratified treaties like the U.N.
Convention on the Rights of the Child, permits the State to
override the decisions of fit parents if they believe that a
contrary decision will benefit the ``best interests of the
Even if the United States refuses to ratify a treaty,
American courts could attempt to recognize a treaty's
principles as a reflection of binding international norms and
customs under the doctrine of ``customary international law,''
and thus override all inconsistent State law.
Section 4 of the PRA ensures that treaties of other forms
of international law cannot be used to override or modify
parental rights. The truths, principles, and knowledge
inculcated into the hearts and minds of our children dictate,
more than any other human factor, the paradigm of America's
future. One of two people will primarily choose the academic,
philosophical and spiritual substance of what is placed in the
hearts of a particular child. It will either be a bureaucrat
who doesn't oftentimes even know the child's name, or a parent
who would pour his or her last drop of blood out on the floor
for that child.
Our answer to the question of how we will answer who that
to be is one of inexpressible gravity. The purpose of the
parental rights amendment is to ensure that the American time-
honored standard which recognizes the liberty of parents to
direct the education and upbringing of their children is
fundamental. It is placed in the actual text of the
Constitution as such. Neither shifting Supreme Court majorities
or international law would be able to change the basic idea
that parental rights are examined under the high legal standard
for the protection of our rights that our Constitution
describes as fundamental.
With that, I yield now to the Ranking Member of the
Subcommittee, Mr. Scott, for his opening Committee.
[The resolution, H.J. Res. 110, follows:]
Mr. Scott. Thank you, Mr. Chairman.
I am just sitting in for the Ranking Member who is not able
to be here, but I would like to ask unanimous consent that his
statement be entered into the record.*
*Ranking Member Jerrold Nadler (D-NY), did not submit a statement
for this hearing.
Mr. Franks. Without objection.
Mr. Scott. And I thank the witnesses, particularly Dr.
Farris, for being with us today.
Mr. Franks. All right. Let me just then thank all of the
witnesses for appearing before us today.
Our first witness, Dr. Michael Farris is founder and
chairman of the Home School Legal Defense Association and
founder and chancellor of Patrick Henry College. Since founding
the Home School Defense Association in 1983, Dr. Farris has
helped grow the organization to over 80,000 member families.
Dr. Farris has written over a dozen books, a constitutional law
textbook, and works on marriage, parenting, home schooling,
political advocacy and religious liberty.
His daily radio program, ``Home School Heartbeat'' airs on
several hundred stations nationwide. Education Week has named
Dr. Farris as one of the top 100 faces in education of the 20th
Our second witness, Professor Martin Guggenheim, is the
Fiorello LaGuardia professor of clinical law at the New York
University School of Law, where he has earned his J.D.
Professor Guggenheim focus on child law, child welfare law, and
is the author of numerous articles, including, Ratify the U.N.
Convention on the Rights of the Child, But Don't Expect any
Miracles, in the Emory International Law Review and, Stealth
Indoctrination for Speech in the Classroom, in the 2004
University of Chicago Law Forum. Welcome, sir.
Our third and final witness, Piero Tozzi, serves as senior
legal counsel with the Alliance Defending Freedom, or ADF--and
that name has changed slightly. Since joining the ADF in 2010,
Mr. Tozzi has focused his litigation efforts on the
international human rights law. He earned his JD from the
Fordham University School of Law in 1996. Prior to joining ADF,
Mr. Tozzi served as executive vice president and general
counsel for the Catholic Family and Human Rights Institute, or
C-FAM, while running its New York office where he lobbied the
United Nations on social policy issues and established C-FAM's
public interest law firm, the International Organizations Law
Group. Welcome, Mr. Tozzi.
Each of the witnesses' written statements will be entered
into the record in its entirety, and I would ask each witness
to summarize his testimony in 5 minutes or less. To help you
stay within that time, there is a timing light on the table.
When the light switches from green to yellow, you will have 1
minute to conclude your testimony. When the light turns red, it
signals the witness' 5 minutes has expired.
Mr. Franks. Before I recognize the witnesses, it is the
tradition of this Subcommittee that they be sworn, so if you
would please stand.
Mr. Franks. I now recognize our first witness for 5
minutes, Dr. Farris.
TESTIMONY OF MICHAEL FARRIS, J.D., LL.M.,
CHANCELLOR, PATRICK HENRY COLLEGE
Mr. Farris. Chairman Franks, Mr. Scott, Members of the
Subcommittee, thank you so much for holding this hearing and
for your leadership on this issue.
In 1990, in the case of Employment Division v. Smith, the
Supreme Court made a ruling that undercut our long-standing
legal standard for the protection of the free exercise of
religion. Shortly thereafter, under the leadership of this
Committee, Congress introduced the Religious Freedom
Restoration Act. I had the privilege as serving as the co-chair
of the drafting committee for RFRA, and the even greater
privilege of working closely with the Members and staff of this
Committee in the passage of RFRA.
Mr. Nadler played a key role in the successful passage of
RFRA, and I would be remiss if I failed to mention the
important role that staff counsel, David Lachmann, performed in
the effort to preserve religious liberty for all Americans.
RFRA received the ultimate form of bipartisan support,
since the bill passed unanimously in the House, and I guess it
was 97-3 in the Senate.
The situation our country faced with regard to RFRA is a
perfect parallel to the situation we face today with regard to
parental rights. There is overwhelming support in our Nation
for both the free exercise of religion and the traditional
right of parents to direct the upbringing, care and education
of their children.
A 2010 Zogby poll found that 93.6 percent of Americans
believe that parents should have the constitutional right to
make decisions for their children without governmental
interference unless there is proof of abuse or neglect.
However, our current law does not match the belief of the
Just as was the case regarding religious freedom, the
problem with parental rights starts with a Supreme Court
decision. In Troxel v. Granville, as the Chairman has already
indicated, the Supreme Court ruled in favor of the parent, but
did so in a way that has led to a serious erosion of the
traditional constitutional principle of parental rights.
Parents won that battle, but lost the war.
In Troxel, the court split six ways. And without going
through my summary, all six of the opinions, suffice it to say,
only Justice Scalia--excuse me, only Justice Thomas, rather,
used the traditional test for parental rights, calling it a
fundamental right and applying strict judicial scrutiny. But
even Justice Thomas said in a properly briefed case, he might
consider a different rule.
Justice Scalia is noteworthy in the fact that he said that
even though parental rights are an inalienable right under the
Declaration of Independence, that they are not constitutionally
protected at all because there is no text of the Constitution
to support parental rights. Until parental rights are in the
text of the Constitution, Justice Scalia said, parents lose
every single time.
This level of confusion at the Supreme Court has infected
the lower courts with a growing level of discord as to the
correct constitutional text, although some confusion existed
even prior to Troxel. My written testimony includes an appendix
with a brief analysis of State and Federal parental rights
cases since Troxel. I list 24 cases that have expressly
rejected the use of the fundamental rights standard in light of
the Troxel decision.
A pair of cases that I personally litigated explains the
situation that parents face when attempting to protect their
constitutional rights. Before the Supreme Court of Michigan, I
argued two home schooling cases on the same day. The first was
for the DeJonge family who defended their rights using a
combination of religious freedom and parental rights. By a 4-3
vote, the Supreme Court of Michigan held that they had a
fundamental right to do so.
But the Bennett family, who argued simply on the basis of
parental rights, had a 4-3 victory snatched from them. Rather,
they lost 4-3 on the basis that parental rights are not a
The net result in Michigan, according to that Supreme
Court, is parents who are religious had the right to home
school. But secular parents did not have the right to home
school. One had fundamental freedoms; the other did not. It is
my belief that all parents, whether secular, religious, or
whatever religion, should have the fundamental right to make
educational decisions for their children. It should not matter.
But, in fact, it does matter.
I have personally litigated dozens, if not hundreds of
cases, involving invasion of parental rights in medical
decisions, educational decisions, religious decisions and much
more. The caseload of one lawyer can only be the tip of the
Parental rights are under assault, and the correct
constitutional standard is not clear as a result of Troxel.
Historically, the standard is clear. And the parental rights
amendment does one big thing: It places the traditional test of
parental rights into the black and white text of the
Constitution. It follows the very words and principles of Meyer
v. Nebraska, Pierce v. Society of Sister, and Wisconsin v.
Congress can make history by taking bipartisan action to
protect parental rights. Parental rights should not be
diminished over time, and parents shouldn't have to guess
whether or not their rights are fundamental. It should be in
the black and white text of the Constitution.
Mr. Franks. Thank you, Dr. Farris.
[The prepared statement of Mr. Farris follows:]
Prepared Statement of Michael Farris, J.D., LL.M.,
Chancellor, Patrick Henry College
In 1990, in Employment Division v. Smith, the Supreme Court of the
United States made a ruling that undercut our long-standing legal
standard for the protection of the free exercise of religion. Shortly
thereafter, under the leadership of this Committee, Congress introduced
the Religious Freedom Restoration Act (RFRA).
I had the privilege of serving as the Co-chair of the drafting
committee for RFRA and the even greater privilege of working closely
with the members and staff of this Committee. Mr. Nadler played a key
and leading role in the successful passage of RFRA. I would be remiss
if I failed to mention the important role that staff counsel, David
Lachmann, performed in that effort to preserve religious liberty for
And RFRA received the ultimate form of bipartisan support--since
the bill passed unanimously in the House and 98-2 in the Senate.
The situation our country faced with RFRA is an absolutely perfect
parallel with the situation we face today with regard to parental
There is overwhelming support in our nation for both the free
exercise of religion and the traditional right of parents to direct
upbringing, care, and education of their children. A 2010 Zogby poll
found that 93.6% of Americans believed that parents should have the
constitutional right to make decisions for their children without
governmental interference unless there is proof of abuse or neglect.
Regardless of party affiliation, racial group, or income level, America
believes in the constitutional rights of parents in rates that exceed
90% in every one of these categories.
However, our current law does not match the belief of the American
people. Just as was the case regarding the free exercise of religion,
the problem with parental rights started with a Supreme Court decision.
In Troxel v. Granville, 530 U.S. 57 (2000), the Supreme Court ruled in
favor of the parent--but did so in a way that has led to a serious
erosion of the traditional constitutional principle of parental rights.
Parents won the battle in that case but lost the war.
In Troxel, the Court split six ways. Although, the plurality
opinion noted that the Court's precedent had traditionally treated
parental rights as a fundamental right, it refused to determine the
precise constitutional standard applicable in such cases--preferring a
Justice Souter concurred, saying: ``Our cases, it is true, have not
set out exact metes and bounds to the protected interest of a parent in
the relationship with his child.'' Parental rights are not fundamental
but just ``generally protected.''
Justice Thomas was the only justice to actually use the compelling
interest test applicable for a fundamental right. But he said that in a
properly briefed case, he would consider a different outcome.
Justice Stevens dissented rejecting the idea of a fundamental
parental right to make decisions for children.
Justice Kennedy also dissented, describing parental rights in
language that illumed nothing and protects no one, saying: ``The
principle exists, then, in broad formulation; yet courts must use
considerable restraint.'' Kennedy pointedly avoided labeling parental
rights as ``fundamental.''
Justice Scalia also dissented in a way that surprises most people.
He said that parental rights are a political concept only and not a
constitutional right. Unless and until there is an actual provision of
the Constitution which protects parental rights, judges have no
business using the rights of parents to invalidate even the most
This level of confusion has infected lower courts with a growing
level of discord as to the correct constitutional test--although some
confusion existed even prior to Troxel. My written testimony includes
an appendix with a brief analysis of state and federal parental rights
cases since Troxel. Some 24 cases have expressly rejected the use of
the fundamental rights standard in light of the confusion from Troxel.
A pair of cases that I personally litigated explains the situation
that parents face when attempting to protect their constitutional
Before the Supreme Court of Michigan, I argued two homeschooling
cases on the same day. The first was for a homeschooling family, Mark
and Chris DeJonge, who defended their right to homeschool using the
combination of religious freedom and parental rights. By a 4 to 3 vote,
the Supreme Court of Michigan held that religious parents had a
fundamental right to direct the education of their children. People v.
DeJonge, 442 Mich. 266 (Mich. 1993)
But the second case was for the Bennett family who had made only
parental rights arguments for their right to homeschool. People v.
Bennett, 442 Mich. 316 (Mich. 1993)
To me as a matter of justice, and as a matter of correct
constitutional law, the outcome should have been the same. Religious
freedom should be treated as a fundamental right. Parental rights
should be treated as a fundamental right.
But the Supreme Court of Michigan saw it differently. They held
that parental rights were not a fundamental right and specifically
refused to use strict scrutiny.
Thus, according to that Court--the Constitution protects the rights
of religious parents but not secular parents to direct the upbringing
of their children.
This is just not right. All parents should have the fundamental
right to direct the upbringing, education, and care of their children.
I have personally litigated dozens if not hundreds of cases
involving invasions of parental rights in medical decisions, education
decisions, religious decisions, and so much more. And obviously, the
case load of one lawyer can only be the tip of the iceberg.
Parental rights are under assault. And the correct constitutional
standard is not clear.
The principle reason for this confusion is that parental liberty is
an implied right based on the shifting sands of a highly controversial
doctrine called substantive due process.
Parents deserve better than shifting sand. Parents should not have
to go through the process of counting heads on the Supreme Court to see
whether or not their rights are considered fundamental. There is no
certainty or confidence in that kind of approach.
The Parental Rights Amendment (PRA)does one big thing--it places
the traditional test for parental rights into the black and white text
of the Constitution. It follows the principles and employs the words of
Meyer v. Nebraska, Pierce v. Society of Sisters, and Wisconsin v.
The terms used in Sections 1 and 2 of the PRA are terms of art with
over 80 years of litigation behind them. Just like we did with RFRA, we
are carefully following the traditional legal standard and not trying
to invent new rights or new legal formulas.
The Founding generation protected certain explicit rights in our
Bill of Rights. The topics they chose were based on experience--where
they had seen governmental invasions at some point in history. If the
Founders could have seen the future where parental rights were being
invaded by a government intent on running our private lives--I am
absolutely confident they would have placed parental rights into the
text of the Bill of Rights.
This Congress can make history by taking bipartisan action to
protect parental rights.
The legal rights of parents should not be mired in confusion or be
diminished over time. The right of parents to direct the upbringing,
education, and care of their child should be in the black and white
text of the Constitution of the United States.
State and Federal Court Decisions, Decided since Troxel, which have
Explicitly Rejected the use of Strict Scrutiny in Parental Rights Cases
Bethany v. Jones,--S.W.3d--, 2011 WL 553923 (Ark., February 17, 2011)
(holding that even though ``the Due Process Clause of the
Fourteenth Amendment protects the rights of parents to direct and
govern the care, custody, and control of their children,'' id. at
*8, ``our law is well settled that the primary consideration in
child-custody cases [where a step-parent seeks visitation over the
objection of a biological parent] is the welfare and best interest
of the children; all other considerations are secondary'' id. at
Hensler v. City of Davenport, 790 N.W.2d 569, 581 (Iowa 2010) (applying
rational basis scrutiny to a parental responsibility ordinance
because ``the ordinance does not intrude directly and substantially
into a parent's parental decision-making authority, but instead
only minimally impinges on a parent's fundamental right to direct
the upbringing of his or her child,'' notwithstanding the general
rule that whenever the power of the state ``improperly intrude[s]
into the parent's decision-making authority over his or her
child,'' there is ``an infringement of this fundamental parental
right, triggering strict scrutiny,'' citing Troxel, 530 U.S. at
In re Reese, 227 P.3d 900, 902-3 (Colo. Ct. App. 2010) (employing a
``rebuttable presumption'' in favor of parental visitation
determinations, which can be rebutted by ``clear and convincing
evidence that the parent is unfit or that the parent's visitation
determination is not in the best interests of the child,'' id. at
903; the rebuttable presumption is employed because Troxel did not
``state how the presumption affects the proof process or how
courts must accord special weight to it,'' id. at 902).
Cannon v. Cannon, 280 S.W.3d 79, 86 (Mo. 2009) (in a marriage
dissolution proceeding regarding child custody, the court described
Troxel as holding that ``while a parent's interest in his or her
children is entitled to `heightened protection,' it is not entitled
to `strict scrutiny''').
Weigand v. Edwards, 296 S.W.3d 453, 458 (Mo. 2009) (applying a
balancing-of-interest test to a statute governing modification of
custody because ``the Supreme Court utilized a balancing-of-
interests standard in the context of a grandparent visitation
statute'' and ``decided to leave the determination of the propriety
of particular statutes to a case-by-case analysis'').
Price v. New York City Bd. Of Educ., 51 A.D.3d 277, 292 (A.D. N.Y.
2008) (holding that ``even if we were to hold that a fundamental
liberty interest is at stake [because of a school rule prohibiting
students from having cell phones], we would not apply strict
scrutiny'' because ``there is no clear precedent requiring the
application of strict scrutiny to government action which infringes
on parents' fundamental right to rear their children'' given that
Troxel ``did not articulate any constitutional standard of
In re Guardianship of Victoria R., 201 P.3d 169, 173, 177 (N.M. Ct.
App. 2008) (affirming a trial court's decision to award
guardianship of a child to ``psychological parents,'' to whom the
mother had voluntarily given placement of the child, because
evidence of potential psychological harm to the child overcame the
presumption in favor of the biological parent, id. at 177; the
court did not employ strict scrutiny, noting that ``only Justice
Thomas, in a concurring opinion, relied upon a fundamental rights-
strict scrutiny analysis'' and that ``some authorities, noting that
only Justice Thomas expressly relied upon textbook fundamental
rights-strict scrutiny analysis, have read Troxel as moving away
from the rigid strict scrutiny mode of analysis of state
legislation that impinges on parents' control over the upbringing
of their children,'' id. at 173 n. 4).
In re Adoption of C.A., 137 P.3d 318, 319 (Colo. 2006) (adopting a
rebuttable presumption in favor of parental decisions, which can be
rebutted by ``clear and convincing evidence that the parental
visitation determination is not in the child's best interests,''
because Troxel ``left to each state the responsibility for
enunciating how its statutes and court decisions give ``special
weight'' to parental determinations'').
Douglas County v. Anaya, 694 N.W.2d 601, 607 (Neb. 2005) (``It is true
that ``the custody, care and nurture of the child reside first in
the parents.'' However, the Court has never held that parental
rights to childrearing as guaranteed under the Due Process Clause
of the 14th Amendment must be subjected to a strict scrutiny
analysis. See Troxel. ``[T]he Supreme Court has yet to decide
whether the right to direct the upbringing and education of one's
children is among those fundamental rights whose infringement
merits heightened scrutiny.'' Pierce and Yoder do not support an
inference that parental decisionmaking requires a strict scrutiny
analysis'') (internal citations omitted).
McDermott v. Dougherty, 869 A.2d 751, 808-9 (Md. 2005) (Adopting a
balancing test where ``the constitutional right [of parents] is the
ultimate determinative factor; and only if the parents are unfit or
extraordinary circumstances exist is the ``best interest of the
child'' test to be considered'').
Barker v. Barker, 98 S.W.3d 532, 535 (Mo. 2003) (holding that, under
Troxel, ``the trial court was required to consider the parents'
right to make decisions regarding their children's upbringing,
determine the reasonableness of those decisions, and then balance
the interests of the parents, child, and grandparents in
determining whether grandparent visitation should be ordered'').
Doe v. Heck, 327 F.3d 492, 519-20 (7th Cir. 2003) (applying a
``reasonableness'' test, akin to Fourth Amendment analysis, when
balancing ``the fundamental right to the family unit and the
state's interest in protecting children from abuse,'' id. at 520,
because ``after Troxel, it is not entirely clear what level of
scrutiny is to be applied in cases alleging a violation of the
fundamental constitutional right to familial relations,'' id. at
In re Marriage of Winczewski, 72 P.3d 1012, 1034 (Or. Ct. App. 2003)
(``In Harrington, we expressly rejected the strict scrutiny
standard asserted by Justice Thomas in Troxel and indicated that
`the plurality opinion [in Troxel] gives the best guidance on the
effect of the constitution in this situation''').
Blakely v. Blakely, 83 S.W.3d 537, 546 (Mo. 2002) (Although the
majority [in Troxel] did not articulate the specific standard of
review it was applying, it did not apply the strict scrutiny
standard advocated by Justice Thomas. Instead, after identifying
the kinds of factors that led it to invalidate the application of
the Washington statute to the facts before it, the Court decided to
leave the determination of the propriety of particular statutes to
a case-by-case analysis'').
In re Custody of C.M., 74 P.3d 342 (Colo. Ct. App. 2002) (noting that
the court in Troxel ``did not specify the appropriate level of
scrutiny for statutes that infringe on the parent-child
relationship'' and ``did not decide whether the state's interest
was a compelling one.'').
Leebaert ex rel. Leebaert v. Harrington, 193 F.Supp.2d 491, 498 (D.
Conn. 2002) (``Supreme Court precedent is less clear with regard to
the appropriate standard of review of parental rights claims.
However, the Second Circuit has concluded that a parental rights
challenge to a school's mandatory community service requirement
warranted only rational basis review. Troxel does not establish a
different rule requiring strict scrutiny of parental challenges to
educational policies of public schools'').
Nicholson v. Williams, 203 F.Supp.2d 153, 245 (E.D. N.Y. 2002) (noting
that ``[t]he plurality [in Troxel] apparently saw no need to
vocalize a standard of review,'' and that ``[u]nderstandably, the
Supreme Court and other courts have hesitated to apply strict
scrutiny mechanically and invariably to government legislation and
policy that infringes on familial rights. Even as it has recognized
the sanctity of familial rights, the Court has always acknowledged
the necessity of allowing the states some leeway to interfere
State Dept. of Human Resources v. A.K., 851 So.2d 1, 8 (Ala. Ct. App.
2002) (holding, over the dissent's objection based on Troxel, that
``[a]lthough a parent has a prima facie right to custody of his or
her child, the foremost consideration in deciding whether to
terminate parental rights is the child's best interests. Where
clear and convincing evidence establishes that the termination of
parental rights is in the child's best interests, that
consideration outweighs the parent's prima facie right to custody
of the child'').
Williams v. Williams, 50 P.3d 194, 200 (N.M. Ct. App. 2002) (affirming
an order of visitation, over the objection of the parents, based
solely on statutory factors including the best-interest of the
child with no apparent presumption in favor of the parents'
decision; ``We agree with Parents that, as a general proposition,
Troxel does require courts to give special consideration to the
wishes of parents, and appropriately so. However, we do not read
Troxel as giving parents the ultimate veto on visitation in every
instance. Troxel may have altered, but it did not eradicate, the
kind of balancing process that normally occurs in visitation
State v. Wooden, 184 Or. App. 537 (Or. Ct. App. 2002) (``Troxel now
establishes that the court must give significant weight to a fit
custodial parent's decision'').
Crafton v. Gibson, 752 N.E.2d 78, 92 (Ind. Ct. App. 2001) (affirming an
earlier decision which used of ``rational basis'' scrutiny to
evaluate a grandparent visitation statute because ``the Supreme
Court in Troxel did not articulate what standard would be applied
in determining whether nonparental visitation statutes violate the
fundamental rights of parents;'' thus, ``because the issue of what
standard should be applied was not reached by the Troxel court, it
is unnecessary for us to reevaluate the conclusions we reached in
Sightes with regard to this issue'').
Littlefield v. Forney Independent School Dist., 268 F.3d 275, 289 (5th
Cir. 2001) (``The dispositive question at issue is whether the
sweeping statements of the plurality opinion in Troxel regarding
the ``fundamental'' ``interest of parents in the care, custody, and
control of their children,'' mandate a strict standard of scrutiny
for the Parents' Fourteenth Amendment challenge to the Uniform
Policy. We do not read Troxel to create a fundamental right for
parents to control the clothing their children wear to public
schools and, thus, instead follow almost eighty years of precedent
analyzing parental rights in the context of public education under
a rational-basis standard'') (internal citations omitted).
Santi v. Santi, 633 N.W.2d 312, 317-18 (Iowa 2001) (holding that, under
the Iowa Constitution, ``the infringement on parental liberty
interests implicated by the statute must be ``narrowly tailored to
serve a compelling state interest,'' id. at 318, even though ``the
Troxel plurality did not specify the appropriate level of scrutiny
for statutes that infringe on the parent child relationship,'' id.
Jackson v. Tangreen, 18 P.3d 100, 106 (Ariz. Ct. App. 2000) (holding
that ``Troxel cannot stand for the proposition that [a state
visitation statute] is necessarily subject to strict scrutiny''
because ``only Justice Thomas would have applied strict scrutiny to
the statute in Troxel'' and ``[n]one of the other five opinions
explicitly stated the level of scrutiny that it applied'').
Mr. Franks. Professor Guggenheim, you are recognized for 5
TESTIMONY OF MARTIN GUGGENHEIM, FIORELLO LaGUARDIA PROFESSOR OF
CLINICAL LAW, NEW YORK UNIVERSITY SCHOOL OF LAW
Mr. Guggenheim. Chairman Franks, Mr. Scott, Mr. King,
Members of the Subcommittee, it is a great privilege for me to
be here today. I am here testifying in opposition to a proposed
constitutional amendment, recognizing the liberty of parents to
direct the upbringing, education, and care of their children as
a fundamental right, not because I am, any less than my
distinguished colleagues who are witnesses today, a fervent
supporter of parental rights, I would out-elbow to the left and
right for that label as someone who proudly regards himself as
a fervent and staunch advocate for parental rights.
My disagreement is purely over means, not ends. But
profoundly, I come before you with the straightforward,
conservative message that we should never tinker with the
Constitution lightly, that there is an overwhelming burden
placed on anyone who suggests that we need to tinker with the
Constitution, and that no careful student of the field could
reasonably conclude that that burden is met in this situation.
The division of the court in Troxel is, in my opinion--and
I am a great admirer of Michael Farris and the work that he
does and the principles for which he stands--but I respectfully
suggest that the critical disagreement among the Justices had
less to do with the principle that we are discussing today,
that is, the importance of parental rights. It had a lot to do
with whether a Washington statute that was overbroad in its
language should be declared facially unconstitutional or only
unconstitutional as applied. It is a very complicated inquiry
when a State court chooses to declare a law facially
unconstitutional outside of the First Amendment and that case
reaches the Supreme Court. And the scattered opinions spend
much more time on that question than on the merits of what
parental rights are.
Suffice it to say, that the Supreme Court of the United
States has held fast to the principles supporting this
amendment, the merits of them. Through every court from the
Lochner era through the Roberts court, and it is useful to read
the plurality's reaffirmation in 2000 of these principles. The
court said that we have always confirmed that there is a
constitutional dimension to the rights of parents to direct the
upbringing of their children. We have recognized the
fundamental right of parents to make decisions concerning the
care, custody, and control of their children. The history and
culture of western civilization reflect the strong tradition of
parental concern for the nurture and upbringing of their
children. This primary role is now established beyond debate as
an enduring American tradition. And, indeed, it is.
To suggest that we need Congress to come to the rescue,
because the court has lost sight of this fundamental notion, I
submit is wrong-headed and incorrect. It is a very odd idea to
propose a constitutional amendment to place into the
Constitution the exact language that the Supreme Court has
upheld through five different courts from 1920 to 2000.
But there is more. We live in a country with overwhelming
support for parental rights, as Chancellor Farris has just
reminded us. Not only would it be unprecedented to amend the
Constitution at a time when protected liberty, when the
protected liberty involved is not threatened by the courts, but
in our constitutional democracy it also matters whether the
allegedly endangered group needs constitutional protection from
the tyranny of the majority.
Parents constitute the overwhelming majority of Americans.
In 2000, a national survey revealed that 86 percent of women
and 84 percent of American men of voting age are or were
parents. There simply is no reason to believe that the values
celebrated in this proposed amendment are not widely shared by
Americans generally, and by voters in particular. Thus, there
is neither a reason to worry that the courts or the
legislatures are insufficiently sensitive to parental rights.
Would there ever reach the point that my distinguished
colleagues here today suggest we have already, that there is
really a threat to parental rights, we surely would have the
means to address it at that time. But we aren't close to that
at this point.
Mr. Franks. Thank you, Professor Guggenheim.
[The prepared statement of Mr. Guggenheim follows:]
Mr. Franks. Mr. Tozzi, you are recognized for 5 minutes.
TESTIMONY OF PIERO A. TOZZI, SENIOR LEGAL COUNSEL, ALLIANCE
Mr. Tozzi. Thank you. I would like to thank you, Chairman
Franks, and the Subcommittee, for inviting me to testify in
favor of the parental rights amendment.
Specifically, I have been asked to address the United
Nations Convention on the Rights of the Child and how it would
affect the rights of parents and impact the welfare of
I will begin by saying that the Convention is the most
widely ratified treaty, bar none, and it is only the United
States and Somalia that have not ratified it. But it is my
position, nevertheless, that the Convention is fundamentally
flawed, and despite the good intentions of many, it ultimately
The fundamental problem, as I see it, with the Convention,
is that in pertinent part it envisions the child as an
autonomous bearer of rights, divorced from his or her family,
with the interventionist state seen as the ultimate guarantor
of such rights, and such a perspective implicitly pits children
against their parents.
Indeed, the Committee on the Rights of the Child, which is
empowered under the Convention to receive reports of States'
parties, has interpreted these rights as rights to be secured
against parents, as opposed to civil and political rights to be
secured against the State, and in fact, does invoke the State
as against the parents.
Now while there are good provisions in the Convention, and
it does mention the need to respect the responsibility, rights
and duties of the parents, and does reference the importance of
the family, there nevertheless is this internal tension with
that of the child as the autonomous rights bearer. And I think
this rights-based approach lends itself to thinking in
dialectical terms with parents seen as oppressive and
And much of the reason for this is because the Convention
on the Rights of the Child grew out of thinking in the 1960's
and 1970's which saw the child rights movement as part of a
general liberationist movement. The writing of scholars such as
Samantha Godwin, for example, and a recent article of hers
titled ``Children's Oppression, Rights and Liberation'' where
she links the child rights movement with prior liberation
movements, I think is indicative of this approach.
And I think this problem is exacerbated by the role that
the Committee on the Rights of the Child has taken under the
Convention. The Convention says that Members of the committee
shall be experts of high moral standing and recognized
competence in the field covered by this Convention, which
essentially means child rights experts. It is a self-selecting
group, and it tends to be those people that would interpret the
rights of the child as against parents.
Now this committee frequently issues directives that extend
beyond its power, and opines as to matters that are not covered
by the text of the Convention. For example, the committee has
criticized the United Kingdom for laws that allowed parents to
opt out their children out of sex education courses. It is on
the grounds that excluding children, by parents excluding
children, this amounts to a denial of the child's right to
express his or her views freely.
Likewise, the committee has instructed the government of
Japan that they must guarantee the child's rights to privacy,
``especially in the family.''
Also, the committee has called for access to counseling on
reproductive health services by children without the need for
parental consent. They did this as recently as 2008 when
Bulgaria and Georgia appeared before the committee.
These views undermine the parent, child, and the family
bond; and ultimately, they harm children because they drive a
wedge between parents as the children's natural protectors, and
the children themselves. And in the worst case, it leads to
calls for intervention by the State to enforce the rights of
We have seen State actions, and I refer in my written
remarks to cases from Sweden and Spain, where opposition to
parents and taking children from their parents, home schooling
parents, has been justified by reference to the Convention on
the rights of the child.
Here in the United States, of course, we do have, as my
colleagues have referenced, venerable Supreme Court precedents
such as Meyer v. Nebraska, Pierce v. Society of Sisters,
Wisconsin v. Yoder. However, I do disagree with my esteemed
colleague here, we do see an erosion of parental rights. The
case, for example, of Parker v. Hurley, which involved the
parents' right to opt out of public school courses where
materials that they deemed inappropriate and contrary to the
moral values they were teaching their children was denied.
Now, the court there did not cite the reasoning of the
committee on the Rights of the Child, but such reasoning does
strengthen the arguments that advocates make. We have also seen
elsewhere courts that have referenced the Convention on the
rights of the child as being incorporated in customary
I will conclude my remarks here, but I am certainly willing
to address that further should you like. Thank you.
Mr. Franks. Well, thank you, Mr. Tozzi.
[The prepared statement of Mr. Tozzi follows:]
Mr. Franks. I recognize myself now for 5 minutes to begin
I will go ahead, if you will grant me diplomatic immunity,
and in the interest of full disclosure, suggest that I believe
a parental rights amendment of this sort is a vital addition to
the Constitution. I think that the Constitution was always
meant to recognize these things, but it was never really
memorialized in the text. And one of the things as the Chairman
of the Constitution Subcommittee here, it is probably one of
the greatest disappointments to me is the willingness of some
courts to fundamentally ignore the clear written text and
intent of the Constitution to come up with a wholly different
conclusion or ruling.
And if they will do that with obvious language, my fear of
what they might do at some point with no language whatsoever is
one that nags at me given the magnitude and the importance.
In my opening statement, I suggested that if we look to the
future, any country that looks to any future must realize that
the things that they teach their children will have as profound
an impact as anything that you can possibly imagine. So we will
leave that decision in the hands of one of two people. It will
be the State or the parents, in essential terms.
So I think the conclusion here is very significant. And in
all deference to Professor Guggenheim, I think there is a
moment in the life in every problem when it is big enough to be
seen coming and still small enough to be addressed, and the
Court's history here gives me a sense that clear language would
be of some help in making sure that we don't step away from
what the professor is absolutely right on, that this is
something that all of us essentially agree on, that parents are
the first decision makers.
With that, Mr. Tozzi, you made a strong argument against
the U.N. CRC, and if we have not ratified that treaty--and
again, this is a rhetorical question to give you an opportunity
to expand you explanation--what is the big deal about it? What
threat does it pose in terms of the Court's looking to
``customary international law''? We have seen the Supreme Court
begin to recognize customary international law as influential
on domestic issues--Roper v. Simmons and Graham v. Florida,
probably be good examples, but do you have an concerns that a
parental rights case before the Supreme Court could be
influenced by international law or treaties? And if so, what
are your concerns and kind of give us your perspective?
Mr. Tozzi. Well, probably the most significant cases that
did reference the Convention on the Rights of the Child you
mentioned, Roper v. Simmons and the Graham v. Florida. In both
those cases, the Convention on the Rights of the Child was
cited as an example of world opinion, that norms had shifted
and the United States was laggard. I believe the dissent of
Justice Scalia in Roper v. Simmons addresses this, and some of
the constitutional problems. He sees it really as a backdoor
way for the courts to take a power that does not belong to
them. The power to ratify a treaty does reside with the
executive branch with the advice and consent of the Senate, not
the judiciary. So there is that constitutional issue as well.
I just want to also state that I'm not here--the substance
of the issue in Roper, for example, the juvenile death penalty,
I'm not opining to that or speaking out in favor of the
juvenile death penalty, but rather the constitutional issues.
Customary international law is usually referenced in cases
involving the Alien Tort Claims Act. There is an expected
decision by the Supreme Court in the next term, the Kiobel v.
Shell Oil case, which will discuss the limits of customary
Customary international law does have its place in our
jurisprudence, but not an expansive notion that would
incorporate everything. And there have been courts, a ninth
circuit decision on the Tort Claims Act which has referenced
universal declaration and other treaties as being part of
customary international law.
Various courts have also referenced the Convention on the
Rights of the Child as being incorporated in customary
international law, including several in the eastern and
southern district of New York.
Mr. Franks. Thank you, Mr. Tozzi, and I now recognize Mr.
Scott for 5 minutes.
Mr. Scott. Thank you, Mr. Chairman.
Professor Guggenheim, does a treaty become binding law in
the United States without implementing legislation?
Mr. Guggenheim. I am not an expert. I don't want to give a
definitive answer. Were we to formally ratify the Convention,
it would be citable. It is not self-executing, but it would
become material to use in courts. But there is a country-mile
distinction between what happened in Roper and Graham, both
Eighth Amendment cases where a critical inquiry is evolving
standards. And the world's standards absolutely forbid, in
plain language, the sentences that the States had imposed on
So the court naturally--but there is nothing like that.
Mr. Scott. But that is not binding on the United States?
Mr. Guggenheim. Now it is not in any sense.
Mr. Scott. No treaty is binding in the United States
without implementing legislation. I mean, the treaty itself
does not self-execute, as you said. You need subsequent
legislation to make it the law of the land.
One of the things that we are working on, and will need to
inquire, is how the present law would change if we had the
constitutional amendment. And under present law, is there any
challenge to parental rights under current law when the parents
are operating in the best interest of the child?
Mr. Guggenheim. Under current law, there really are two
different critical categories of parental rights. Education,
deciding the details of your family's upbringing, are of course
the major work of Chancellor Farris, and a very important
example. But in addition to that, the two areas are intra-
family arguments over access to children. That's what Troxel
Mr. Scott. If the parents are operating in the best
interest of the child, is there any question that that would
be--you don't need a constitutional amendment for that?
Mr. Guggenheim. Of course not. Any time parents are acting
in their children's best interest, the inquiry ends.
Mr. Scott. So if you have situations that are not in the
best interests of the child, those are the kinds of situations
that would be protected under our constitutional amendment; is
Mr. Guggenheim. The question would be is there an interest
of the highest order to trump the parents' choice. The answer
is, yes. It could mean that children's best interest would be
not invoked because of a trumping principle.
Mr. Scott. Dr. Farris, how would this operate? If you are
not operating in the best interest of the child, how would that
affect medical decisions in terms of denying children access to
reasonable medical treatment because the parents do not want to
have the child's best interests at heart?
Mr. Farris. Mr. Scott, the best interest standard is a
dispositional standard in our law. It is not a jurisdictional
standard. You have to first determine if the family has harmed
the child, either abuse or neglect. And then you go to best
interest standard. When we automatically start invoking the
best interest standard, it is a subjective standard which means
the government gets to say what it thinks is best for the
child. I believe the government should not be able to invoke
that dispositional standard until it has first proven the
jurisdictional elements of abuse or neglect.
So you don't start with a sentencing standard or
dispositional standard, you start with a jurisdictional
standard. And what the government is doing in far too many
cases, and mostly with people who don't have the ability to
afford counsel, and they are not lucky enough to get somebody
like Professor Guggenheim or me who basically does pro bono
parents' rights' work, you can't get a dime between us in terms
of what we think the law should be.
But the reality is, the lower courts and the agencies are
running over parents on a daily basis.
Mr. Scott. But at some point, some parents are just
incapable of operating in the best interest of the child, and
if you give them total control, notwithstanding the
unreasonableness of their action?
Mr. Farris. There is not doubt that at some point in time,
parents abuse or neglect their children. When that happens,
then the government gets to determine what it thinks is best
for the children. But to use the best interest standard, the
Washington State legislature put the best interest standard as
the jurisdictional standard in the early 1980's. Under that,
they had two cases. One went to the Supreme Court of Washington
called In Re: Sheila Marie. And in that case, Sheila Marie was
a 13-year-old-girl, was smoking marijuana, sleeping with her
boyfriend. The parents grounded her, and the State took the
girl away from her parents even though the court held that the
rules were reasonable and the method of enforcing the rules
were reasonable. Nonetheless, because there was conflict
between parents and child over these standards, the State had
jurisdiction and removed the girl.
That's what happens when you start with best interest. You
don't start with best interest, you start with harm. After
proof of harm, abuse or neglect, or divorce or something like
that, after proof of brokenness, then you go to the best
interest. If you start with best interest, that's the very
problem because best interest necessarily means that the
government gets to substitute its subjective judgment about
what is right for the child over that of the parent.
Mr. Scott. Thank you.
Mr. Franks. Thank you, Mr. Scott.
I now recognize the distinguished gentleman from Iowa, Mr.
Mr. King. Thank you, Mr. Chairman. I thank the witnesses.
And I turn first to Dr. Farris.
What is the legal definition of a parent within the context
of our discussion here?
Mr. Farris. Under the amendment, under the PRA, I think it
would turn to State law to determine who is a parent under
State law. So it normally would be biological or adoptive
parent, but that would be a State law question. Who is the
parent of this child under State law?
Mr. King. Do you all concur, the other witnesses? Professor
Guggenheim and Mr. Tozzi?
Mr. Guggenheim. Yes.
Mr. Tozzi. Yes.
Mr. King. Thank you. So this complicates this understanding
for me. If we have States that define parents as parents, legal
guardians, that is what I would view as a definition of a
parent under the law that I would like to see. If it gets
expanded into grandparents, aunts, uncles, brothers, sisters
and the whole or half blood, how does that affect this
potential amendment to the Constitution, Dr. Farris?
Mr. Farris. First of all, constitutional amendments only
affect disputes between the government and the parent. It won't
affect any kind of intra-family litigation directly, except if
there is a State law like the Washington State law. That wasn't
just grandparent visitation, it was random third-party
visitation in that State statute. But normally it is a dispute
between the government and a person exercising parental
authority under State law. So if the child was living with the
grandparent under State law, that grandparent had parental
authority, then the amendment would protect them.
Mr. King. I'm thinking of this. I am thinking of parental
notification laws in the event that a minor child would be
seeking an abortion, and parental notification or parental
consent laws and the definition of a parent within that
context. And as I read this amendment that is the subject of
this hearing today, and I would think that if the State grants
an authority of consent to an aunt or an uncle of whole or half
blood, that would intervene between this parental rights. So I
don't know what effect this amendment would have if this
amendment doesn't trump that kind of a State legislation
decision to intervene.
Mr. Farris. In my opinion, Mr. King, if a State legislature
gave the right or the power to perform parental notification in
an abortion context, or really any context, to a nonparent,
that statute would be subject to constitutional challenge. And
if I was on the court, I guarantee you that the parent is going
to win that case. But you would have to go through the test of
is there a compelling governmental interest in doing so. In the
abortion context, there is the countervailing fundamental right
of the pregnant woman that's involved and it gets messy. This
amendment would not settle any of those questions.
But a dispute between a randomly-named aunt and a parent,
this amendment would speak to that and would uphold the
superior right of a parent to be the one notified in any
medical situation, absent proof of a governmental reason for
intervention in taking that right away from the parent.
Mr. King. I won't examine that question any further because
I think you have posed the viewpoint of the breadth of question
that I raised. But there is another question that occurs to me
as I read the amendment. In a way, I am going to pose this to
our Chairman as I prepare to yield to him. That is, it says
that ``this Article shall not be construed to apply to a
parental action or decision that would end life.'' And I would
like to yield the balance of my time to Chairman Franks and ask
him if he can help me answer that, and then do whatever you
would like with the balance of my time, Mr. Chairman.
Mr. Franks. Thank you, Mr. King. I think we are going to go
ahead and have a second round of questions here just for
clarity, so I'm going to go ahead and do that. So you are
welcome to finish your time out if you'd like.
Mr. King. Would the gentleman yield to me?
Mr. Franks. Absolutely.
Mr. King. Do you have a short answer to that particular
question that I posed? The ``Article shall not be construed to
apply to a parental action or decision that would end life''?
I'm happy to wait until the next round, if you would prefer.
Mr. Farris. Would you like me to answer? That language
means that if the parents want to terminate the life of their
child, some other source of law is going to have to answer the
parental rights issues, and not this amendment. That was done
as a result of concerns raised by National Right to Life. And
so to satisfy those concerns, that language was drafted.
Although it states a broader principle, if you want to kill
your child, you are not going to be able to claim a parental
right under this amendment. It restates in another way, I
believe, the compelling interest test, that you don't have the
right to terminate the life of your child. Whether you are
going to starve them to death or lock them in a box, whatever.
That is the broader principle stated by that subsection.
Mr. King. Thank you, Dr. Farris. My time has expired and I
yield it back. Thank you, Mr. Chairman.
Mr. Franks. Thank you, Mr. King. We will begin our second
round of questions here. Oh, Mr. Conyers. I am so sorry, sir.
Please forgive me. He just came in surreptitiously. I now
recognize the distinguished Ranking Member of the full
Committee, Mr. Conyers.
Mr. Conyers. Chairman Franks, I apologize for coming in
late. I appreciate being able to just ask a basic question of
Attorney Piero Tozzi. What, sir, do you happen to think may be
the weakest part of Professor Guggenheim's presentation about
this subject of constitutionality in which he has posited that
there is no need to tinker with the Constitution, and that
there is no genuine crisis? How would you respond to that?
Mr. Tozzi. Well, thank you. I would like to say, first of
all, that much of Professor Guggenheim's work I do admire, and
there is a lot that we agree with each other on.
I think, however, that he has focused on certain cases and
certain constellations in our constitutional system, but
ignored certain trends. And I did reference the Parker v.
Hurley case which involved the right of parents to opt their
children out of public school curriculum where they disagreed
as a matter of moral principle with the content. And I fear
decisions in this vein, in particular, and I don't think that
Professor Guggenheim adequately addressed that. But I do want
to say that on many measures, we certainly do agree, and I'm an
admirer of much of his work, although not all of it.
Mr. Conyers. Thank you.
Dr. Michael Farris, what is your analysis in terms of the
Guggenheim postulate that there really isn't much problem here
that would warrant a constitutional amendment?
Mr. Farris. Professor Guggenheim and I are very much alike
in a lot of ways. He teaches constitutional law at New York
University Law School. I teach constitutional law at the
Patrick Henry College. He litigates for parents; I litigate for
Wearing our constitutional professor hats, we get into the
discussions of what is the Supreme Court really doing? What's
that court really thinking? Well, that's not the whole story.
The litigator in me says I have got to face lower courts every
day, and I have supplied the Committee 24 reported appellate
decisions from State and Federal courts where they have
interpreted Troxel the way I interpret it. So it's not a
dispute between constitutional professors that matters, it is
how is it really working in real life. And how it is working in
real life unfortunately is the way that I say Troxel is. Both
of us would like the same result. Both of us would like
parents' rights to still be fundamental. Both of us would like
there still to be a compelling interest test being used; but
that's not what is happening in real life. So, for example, in
the court of appeals----
Mr. Conyers. Well, let me thank you for pointing that out,
and I just want to turn to Professor Guggenheim for my
remaining time to help us see what threads of similarity and
unresolvable differences exist in this discussion, and I thank
you very much, Dr. Farris.
Mr. Guggenheim. Some of what I'm hearing creates a dilemma
for me personally. If this were a hearing into the question,
have we set something into motion that disserves families and
children by permitting States to intervene too easily to remove
children from their parents and families of origin, put me on
the first list of witnesses to complain about what we are
But if I may say respectfully, this Congress is a major
agent in that Act. And if we were here to complain about the
fact that the United States has the highest number of children
in State-ordered foster care of any nation on Earth, mostly
from poor families, overwhelmingly poor, impoverished families,
and we asked should we do something about it, I would commend
Congress to amend the child protection laws and explicitly say
that no child should ever be removed from a parent's home
except for reasons of the highest order.
We don't need a constitutional amendment, we need
legislative change. If this distinguished body thinks there is
a problem, we can fix it tomorrow by changing the legislation.
We have that power. We don't need to pretend we need a special
law to trump what we are doing. We can control our own actions.
And I could stand before you if we want to turn this hearing
into the question: Are we doing enough to ensure that children
are raised by their families in the United States? I do not
think we are. But I didn't understand that to be the question
before us. The question before us is do we need a
constitutional amendment to fix that problem? The answer, in my
opinion, is no.
Mr. Conyers. Thank you. I would like to thank Chairman
Franks, and hope that this can be the subject in the future of
a further consideration of this distinguished Committee.
Mr. Franks. Thank you, Mr. Conyers.
Dr. Farris, votes have been called, and I'm going to go
ahead and start the second round. We will see how far we get. I
will be as brief as possible.
I have already suggested to you that I think the absence of
constitutional language to clarify this is at some point going
to be an issue. I remain convinced of that not because I
disagree with much of the very passionate and very well-stated
testimony of Professor Guggenheim, but simply because I believe
that there has been this trend of courts to begin to play the
role of legislator, and at least this is a firewall in this
regard. And in my mind, you have really identified the
foundational issue here, and that is the best interest of the
In my testimony, once again, I said one of two people will
answer that question, and it will be the State or the parents.
And in my judgment, the parents are of such import in this
case, this is one of the reasons that I think this amendment
is, or some type of an amendment like this is important because
it says in who decides the best interest of the child, we are
going to give the clear advantage to the parents unless there
is previously a proof of, or an indication of harm.
Mr. Franks. So with that, if I could ask you once again to
sort of elaborate on this best interest of the child argument.
And also, you said in your testimony that this thing should be
a fundamental right. Can you give us some more examples from
across the countries of what happens when parents when their
rights are not considered fundamental.
Mr. Farris. Mr. Franks, I can take a few cases out of my
own practice to explain. One is another Washington State case
that focused exactly on the best interest standard. In that
case, in Island County, Washington, a 13-year-old boy
complained to a school guidance counselor who brought in a
social worker, his family took him to church too much. They
went to church Sunday morning, Sunday night, Wednesday night
prayer meeting. And the social worker was outraged at that
level of church. And under Washington State statute, that has
since been repealed, the government can intervene for the best
interest of the child without proof of harm.
They removed that boy on an emergency basis. I was at the
hearing the following week to review that. And the judge said,
I think this boy should go to church just once a week. That's
what happens when the best interest standard becomes the sole
issue. If you don't have the ability to say first you must
prove harm, an interest of the highest order not otherwise
served. If the government gets to make subjective judgment
calls, you get judges deciding how often a kid goes to church.
That's a parent's call, not a judge's call, not a social
There was a case before the Court of Appeals of Michigan
just last week. In that case, a family decided that after
having surgery for their son to remove a tumor and a round of
chemotherapy, that that was enough because the boy was testing
clean of cancer. Their family doctor would continue PET scans,
and the social services agencies hired a private lawyer because
the prosecutor refused to prosecute the family, to prosecute
the family for medical neglect because the family did something
different than what the doctors wanted.
In that case the sole issue is, do parents get to decide or
do the doctors and the social workers get to decide what is
appropriate medical care? It is not a case where there's clear
harm, it is a gray zone case. And we are seeing more and more
of these cases where parents are losing their ability to make
good parenting decisions and it is because the government
thinks it gets to decide what is best for families. And they do
so most often for poor families, for middle class families, for
people who can't stand up for themselves. And the reason we
need a constitutional amendment is because not every case gets
before the Supreme Court. I want social workers who are dealing
with the family to know there's a constitutional amendment
here, where I am attacking this poor family, these people have
real rights in black and white that I can't ignore. If we are
just based on inferences and debates that the professors have,
social workers don't pay attention to that. Social workers will
pay attention to black and white constitutional rights. We need
to do something for families if we are going to stop this
erosion of parental rights.
Mr. Franks. Thank you, Dr. Farris, and I am going to end my
questioning here by simply stating that once again, I think you
have articulated it well, that who decides what is in the best
interest of the child. Unless there is clear convincing
evidence that the child is somehow being harmed, I think unless
we are willing to just leave that to chance, that it is very
important for us to pass an amendment like this making it clear
that parents have the first and most fundamental right to
decide the upbringing and education of their children.
Now we might also look into something regarding one of your
cases to maybe get a judge to say that Members of Congress
might attend church at least once a week, or something like
that. It might be good for the country, I don't know. That is
just something we can throw out there for consideration. With
that, I would yield to Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman. Dr. Farris, is the case
involving church attendance appealed?
Mr. Farris. No, it was not. The judge told the parents if
you don't give your son or don't agree with my ruling today, I
will remove your child. I could not assure the family they
would keep custody while they appealed, and they jut simply
Mr. Scott. The problem is that is, if you have a bad
decision, you don't go to constitutional amendments, if it was
a bad decision.
Mr. Farris. No, Mr. Scott, that's true, but within a week
or a month it was a very short period of time, it has been a
while ago, I can't remember the exact sequence, the Supreme
Court of Washington did issue the decision I referenced earlier
in the same exact law In Re: Sheila Marie. And they held that
the statute's ability to overturn parental decisions was
constitutional. And so even though that particular fact pattern
wasn't appealed, a very parallel fact pattern involving parents
grounding a girl for smoking marijuana and sleeping with her
boyfriend at age 13 was appealed and that one was lost at the
Supreme Court of Washington level.
Mr. Scott. Well, my time is very limited. If you could give
us examples of cases where the best interest of the child is--
where the decision is in the best interest of the child, and
the courts have done other than what the parents acting in the
best interest of the child. In cases where the court has
decided that they are not acting in the best interest of the
child, exactly how this Constitutional amendment would change
things. There's some limit to acting not in the best interest
of the child, and I think you would want to protect the child
from, and I think you are in a gray area. If you could help us
out, I am not sure we can do that in the time we have left, but
if you could help us on that, it would be helpful.
Mr. Farris. Mr. Scott, the I think Professor Guggenheim and
I would agree on this exactly, the government's authority to
intervene should require a prior showing of harm to the child,
abuse or neglect.
Mr. Scott. Have cases been shown where the family's acting
not in the best interest of the child, but the child was not
harmed, harmless error?
Mr. Farris. Well, let's take the Nebraska case that would
be illustrative of this--Douglas case? Yeah, where this lady
turned her child over to social workers for a voluntary period
because she was having problems with lactose intolerance and
some of her own problems in her life. And the government took
the child because they thought it was in the best interest of
the child to take it and they terminated her parental rights.
And the Court of Appeals in Nebraska said that you can
terminate parental rights when the parent is not capable of
doing what is best for the child. But the Supreme Court of
Nebraska overturned that saying that's too flimsy a ground to
terminate parental rights. That's what happened. Best interest
is too flimsy a ground. We should not be able to take----
Mr. Scott. So the law in the land in that area is okay
under present constitutional standards?
Mr. Farris. The Nebraska Supreme Court got it right.
Mr. Scott. The fact that you have a trial level court
decision that isn't right, we have to go through a general
standard, and the idea that you can find a case where a trial
court didn't get it right is not the grounds for a
Mr. Farris. I have 24 appellate decisions reported attached
to my testimony where the courts didn't get it right, 24. It is
not one, it's not two.
Mr. Scott. Yeah, but the appellate court got it right.
Mr. Farris. No. In the Nebraska case, yes, that one was
resolved correctly. But I can list for you 24 cases in my
testimony, written testimony where the courts didn't get it
right and the question is----
Mr. Scott. Where the appellate court did get it right?
Mr. Farris. No, did not get it right.
Mr. Scott. Okay.
Mr. Farris. The correct legal standard is this, are
parental rights fundamental? That's the right standard, that's
the right question.
Mr. Scott. That's kind of where we are going to try--that's
going to be the gray area because if parents operating not in
the best interest of the child, at some point, the government
ought to step in and protect the child.
Mr. Farris. No parent has the right to harm their child.
Mr. Scott. What would this amendment do on corporal
Mr. Farris. This amendment would continue the traditional
law that moderate corporal punishment would be within a
parent's authority. If they abuse the child, it would not
protect them at all.
Mr. Scott. It would not change present law?
Mr. Farris. It would not change traditional law.
Mr. Franks. Thank you. Once again, you have emphasized who,
when we are talking about best interest, is who decides best
interest of the child and what does that encompass. And it is
and a question of inexpressible gravity, and I want you to know
that I appreciate all of you for being here today. Without
objection, all Members will have 5 legislative days to submit
to the Chair--I am sorry, surreptitiously again.
Mr. Scott. It is okay.
Mr. Franks. Submit to the Chair additional written
questions for the witnesses which will be forwarded to them and
they will be asked to respond as promptly as they can so their
answers maybe made a part of the record. And without objection,
all Members will have 5 legislative days within which to submit
any additional materials for inclusion in the record. With that
again, I sincerely thank the witnesses for joining us today,
and the Members and observers and this hearing is now
[Whereupon, at 1:42 p.m., the Subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
Material submitted by the Honorable Trent Franks, a Representative in
Congress from the State of Arizona, and Chairman, Subcommittee on the
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, Ranking Member, Committee on
the Judiciary, and Member, Subcommittee on the Constitution
Mr. Chairman, the bond between parent and child has long been
respected by our legal system as a fundamental right. Although not
among the enumerated rights in the Constitution, the right of ``parents
and guardians to direct the upbringing and education of children under
their control'' has been among the core rights protected by the Due
While I know that some of my colleagues on the other side are not
big fans of unenumerated rights, and are certainly not fans of the line
of cases establishing the liberty interest under the Due Process Clause
that also gave us Roe v. Wade, I believe that the desire to preserve
parental rights cuts across ideological and party lines.
I think it is important that we keep a few important points in
First, as the Supreme Court famously noted in Pierce v. Society of
Sisters, ``[t]he fundamental theory of liberty upon which all
governments in this Union repose excludes any general power of the
state to standardize its children. . . . The child is not the mere
creature of the state; those who nurture him and direct his destiny
have the right, coupled with the high duty, to recognize and prepare
him for additional obligations.''
In its decision in Meyer v. Nebraska, the Court's instructive
survey of societies such as ancient Sparta, where children were raised
as creatures of the state shows why, if only as a practical matter,
ceding that kind of power to the government is undesirable.
More importantly, the bonds of family, and the importance of the
family in our society, demand that we respect the family relationship.
The court's nearly 90-year jurisprudence reflects these widely held
views, and I believe that there is no reason to question that sound
Second, I know that there are some--and we will hear from them
today--who have sounded the alarm that parental rights are under attack
from our courts, and from the international community. That is
unfortunate. While the stray case, or occasional dicta, may sound
ominous, I do not believe the case has been made that parental rights,
as protected by the Constitution, are in peril. I look forward to
today's discussion, and I hope that the witnesses can shed light on
Finally, there is also a great deal of fear that has been generated
by concerns that ratification of the United Nations Convention on the
Rights of the Child might nullify parental rights. I have to confess,
we hear such arguments with respect to nearly every treaty, and they
usually have no firmer foundation than this one.
Most organizations that work with families, such as World Vision,
believe that the treaty will actually do a great deal to support
families and protect children. That is why, according to a World Vision
report on the Convention, ``World Vision does not view the CRC as a
parental code of conduct or as a wedge between parents and children. It
is an agreement that aims to protect children from abuse and neglect,
and is supportive of the role and authority of parents.''
I find it sad that the only two countries left on earth that have
not yet ratified the Convention on the Rights of the Child are the
United States and Somalia.
United States courts will not suddenly start implementing treaties
in ways that violate the Constitution. That just doesn't happen.
Treaties are, by and large, non-self executing. Were they, I think a
number of people currently on death row in Texas would get new trials
now in the wake of the International Court of Justice's decision in the
``Case Concerning Avena and Other Mexican Nationals.''
In that case, Mexican nationals were criminally prosecuted without
being permitted to contact their embassy, and were ultimately sentenced
to death. The ICJ ruled in their favor, but Texas has moved forward
with the executions, and the Supreme Court has refused to intervene.
The Supreme Court, however, said that ``while treaties `may
comprise international commitments . . . they are not domestic law
unless Congress has either enacted implementing statutes or the treaty
itself conveys an intention that it be `self-executing' and is ratified
on these terms.'' It would take an act of Congress, which is always
subject to our Constitution, to implement these obligations. If you
think otherwise, I suggest you go to death row in Texas and ask the
I would, as always, caution my colleagues against pressing forward
with a constitutional amendment. There is a reason why we have amended
that document so rarely, and why the framers made it so difficult to
amend. It should certainly not be amended lightly, and in a case such
as this, where a right is already well established under the
Constitution, and where the threats are truly speculative, I would have
grave reservations about moving forward.
These are all important questions, and I look forward to the
witnesses testimony, which I hope will enlighten the debate.