    [House Hearing, 112 Congress]
    [From the U.S. Government Publishing Office]

        PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES
                          RELATING TO PARENTAL RIGHTS

    =======================================================================

                                    HEARING

                                   BEFORE THE

                        SUBCOMMITTEE ON THE CONSTITUTION

                                     OF THE

                           COMMITTEE ON THE JUDICIARY

                            HOUSE OF REPRESENTATIVES

                          ONE HUNDRED TWELFTH CONGRESS

                                 SECOND SESSION

                                       ON

                                 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

                      U.S. GOVERNMENT PRINTING OFFICE
    75-153                    WASHINGTON : 2012
    -----------------------------------------------------------------------
    For sale by the Superintendent of Documents, U.S. Government Printing
    Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC
    area (202) 512-1800 Fax: (202) 512-2104  Mail: Stop IDCC, Washington, DC
    20402-0001

                           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,
                                         Virginia

                         Paul B. Taylor, Chief Counsel

                    David Lachmann, Minority Staff Director
                                C O N T E N T S

                                  ----------

                                 JULY 18, 2012

                                                                       Page

                                 THE RESOLUTION

    H.J. Res. 110, Proposing an amendment to the Constitution of the
      United States relating to parental rights......................     3

                               OPENING STATEMENT

    The Honorable Trent Franks, a Representative in Congress from the
      State of Arizona, and Chairman, Subcommittee on the
      Constitution...................................................     1

                                   WITNESSES

    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

                                    APPENDIX
                   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,
                                                        Washington, DC.

        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
    obligations.''
        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
    American tradition.''
        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
    child.''
        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
    century.
        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.
        [Witnesses sworn.]
        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
    American people.
        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
    fundamental right.
        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
    iceberg.
        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.
    Yoder.
        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.
        Thank you.
        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
    all Americans.
        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
    rights.
        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
    case-by-case approach.
        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
    invasive laws.
        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
    rights.
        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.
    Yoder.
        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.

                                    APPENDIX

      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
        *9).

    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
        67).

    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
        review'').

    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
        519).

    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
        sometimes'').

    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
        decisions'').

    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.
        at 317).

    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
    minutes.

    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
                           DEFENDING FREEDOM

        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
    children.
        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
    fails children.
        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
    exploitative.
        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
    the child.
        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
    international law.
        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
    questioning.
        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
    international law.
        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
    those juveniles.
        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
    included.
        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
    that right?
        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.
    King.
        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
    parents.
        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
    doing.
        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
    child.
        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
    worker's call.
        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
    caved in.
        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
    constitutional amendment?
        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
    punishment?
        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
    adjourned.
        [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
                                  Constitution

                                   __________

                                   __________

    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
    Process Clause.
        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
    mind.
        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
    rule.
        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
    this question.
        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
    inmates there.
        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.