[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



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                       COMMITTEE ON THE JUDICIARY

                      LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina         JERROLD NADLER, New York
ELTON GALLEGLY, California           ROBERT C. ``BOBBY'' SCOTT, 
BOB GOODLATTE, Virginia                  Virginia
DANIEL E. LUNGREN, California        MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio                   ZOE LOFGREN, California
DARRELL E. ISSA, California          SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana                  MAXINE WATERS, California
J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
STEVE KING, Iowa                     HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona                  Georgia
LOUIE GOHMERT, Texas                 PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio                     MIKE QUIGLEY, Illinois
TED POE, Texas                       JUDY CHU, California
JASON CHAFFETZ, Utah                 TED DEUTCH, Florida
TIM GRIFFIN, Arkansas                LINDA T. SANCHEZ, California
TOM MARINO, Pennsylvania             JARED POLIS, Colorado
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
MARK AMODEI, Nevada

           Richard Hertling, Staff Director and Chief Counsel
       Perry Apelbaum, Minority Staff Director and Chief Counsel
                                 ------                                

                    Subcommittee on the Constitution

                    TRENT FRANKS, Arizona, Chairman

                   MIKE PENCE, Indiana, Vice-Chairman

STEVE CHABOT, Ohio                   JERROLD NADLER, New York
J. RANDY FORBES, Virginia            MIKE QUIGLEY, Illinois
STEVE KING, Iowa                     JOHN CONYERS, Jr., Michigan
JIM JORDAN, Ohio                     ROBERT C. ``BOBBY'' SCOTT, 
                                     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

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               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






















































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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.

                                 
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