[House Hearing, 113 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
AND CIVIL JUSTICE
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 9, 2014
__________
Serial No. 113-104
__________
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
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
HOWARD COBLE, North Carolina ROBERT C. ``BOBBY'' SCOTT,
LAMAR SMITH, Texas Virginia
STEVE CHABOT, Ohio ZOE LOFGREN, California
SPENCER BACHUS, Alabama SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa Georgia
TRENT FRANKS, Arizona PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas JUDY CHU, California
JIM JORDAN, Ohio TED DEUTCH, Florida
TED POE, Texas LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah KAREN BASS, California
TOM MARINO, Pennsylvania CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina SUZAN DelBENE, Washington
MARK AMODEI, Nevada JOE GARCIA, Florida
RAUL LABRADOR, Idaho HAKEEM JEFFRIES, New York
BLAKE FARENTHOLD, Texas DAVID N. CICILLINE, Rhode Island
GEORGE HOLDING, North Carolina
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
JASON T. SMITH, Missouri
[Vacant]
Shelley Husband, Chief of Staff & General Counsel
Perry Apelbaum, Minority Staff Director & Chief Counsel
------
Subcommittee on the Constitution and Civil Justice
TRENT FRANKS, Arizona, Chairman
JIM JORDAN, Ohio, Vice-Chairman
STEVE CHABOT, Ohio STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia JERROLD NADLER, New York
STEVE KING, Iowa ROBERT C. ``BOBBY'' SCOTT,
LOUIE GOHMERT, Texas Virginia
RON DeSANTIS, Florida HENRY C. ``HANK'' JOHNSON, Jr.,
JASON T. SMITH, Missouri Georgia
TED DEUTCH, Florida
Paul B. Taylor, Chief Counsel
James J. Park, Minority Counsel
C O N T E N T S
----------
SEPTEMBER 9, 2014
Page
OPENING STATEMENTS
The Honorable Trent Franks, a Representative in Congress from the
State of Arizona, and Chairman, Subcommittee on the
Constitution and Civil Justice................................. 1
The Honorable Steve Cohen, a Representative in Congress from the
State of Tennessee, and Ranking Member, Subcommittee on the
Constitution and Civil Justice................................. 5
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 6
WITNESSES
Michael P. Farris, JD, LLM, Chairman, Home School Legal Defense
Association, and Chancellor, Patrick Henry College
Oral Testimony................................................. 11
Prepared Statement............................................. 14
Catherine J. Ross, Professor of Law, George Washington University
Law School
Oral Testimony................................................. 22
Prepared Statement............................................. 24
Wendy Wright, C-FAM, Center for Family and Human Rights
Oral Testimony................................................. 37
Prepared Statement............................................. 39
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Ranking Member, Committee on the Judiciary..................... 8
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Steve Cohen, a Representative
in Congress from the State of Tennessee, and Ranking Member,
Subcommittee on the Constitution and Civil Justice............. 62
Prepared Statement of the Honorable Bob Goodlatte, a
Representative in Congress from the State of Virginia, and
Chairman, Committee on the Judiciary........................... 65
Prepared Statement of the Honorable Mark Meadows, a
Representative in Congress from the State of North Carolina.... 67
Material submitted by the Honorable Steve Cohen, a Representative
in Congress from the State of Tennessee, and Ranking Member,
Subcommittee on the Constitution and Civil Justice............. 68
PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES
RELATING TO PARENTAL RIGHTS
----------
TUESDAY, SEPTEMBER 9, 2014
House of Representatives
Subcommittee on the Constitution
and Civil Justice
Committee on the Judiciary
Washington, DC.
The Subcommittee met, pursuant to call, at 2:08 p.m., in
room 2141, Rayburn House Office Building, the Honorable Trent
Franks (Chairman of the Subcommittee) presiding.
Present: Representatives Franks, Jordan, Chabot, DeSantis,
Cohen, Conyers, Scott, and Johnson.
Staff Present: (Majority) John Coleman, Counsel; Tricia
White, Clerk; (Minority) James Park, Minority Counsel; and
Veronica Eligan, Professional Staff Member.
Mr. Franks. The Subcommittee on the Constitution and Civil
Justice will come to order, and without objection, the Chair is
authorized to declare a recesses of the Committee at any time.
The Subcommittee on the Constitution meets today to
consider H.J. Res. 50, proposing an amendment to the
Constitution of the United States relating to parental rights.
The late Notre Dame Law School Professor, Anton-Hermann
Chroust, is said to have told his students that, ``The
academics repeatedly declare the natural law to be dead, but
every 25 years or so, it comes in again by the back door when
some crisis shows the failure,'' of other approaches.
Our Founding Fathers' appeal to natural law in the
Declaration of Independence is an example of when the natural
justice was revealed in our Nation. They stated in this
founding document that mankind is ``endowed by their Creator
certain inalienable rights, among them being life, liberty and
the pursuit of happiness.'' And during times in our Nation's
history when our laws proved deficient, Americans appealed to
higher principles of justice and grounded them in our legal
system by amending the United States Constitution.
It is clear to many Americans that natural justice informs
us of the inalienable right of parents to direct the of
upbringing of their children.
Just a few decades ago, no American would have believed
that laws were necessary to protect the rights of parents to
direct the care and upbringing of their children because this
right was considered so integral, so basic to our way of life.
The Supreme Court affirmed this fact in its 1925 decision in
Pierce v. Society of Sisters. The Court stated that, ``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 the
rights of parents as fundamental, meaning those rights 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, however, was threatened
in the year 2000. In the U.S. Supreme Court case Troxel v.
Granville, a four-judge plurality described parental rights as
historically fundamental but declined to apply strict scrutiny,
the standard of review used by courts in cases in which
fundamental rights are involved. In the wake of Troxel, Federal
and State courts have permitted governmental intrusions into
parental decisions, ranging from the choice of schools 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 that their children
may 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 faces 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
decision 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.
The Parental Rights Amendment ensures that treaties or
other forms of international law cannot be used to override or
modify parental rights. The truths, principles and knowledge
implicated into the hearts and minds of our children will help
define America's future. In fact, I believe it is the blueprint
of whatever future that humanity will have. A government
thinking and acting for parents invites harm to our notions of
freedom and the rule of law.
The purpose of the Parental Rights Amendment is to
establish the rights of parents to direct the education of
their children as fundamental. This amendment will also provide
clarity to our courts and firmly establish the constitutional
protections parents now need from an ever-infringing
government.
I want to thank our witnesses for appearing today. I look
forward to your testimony.
[The resolution, H.J. Res. 50, follows:]
__________
Mr. Franks. And I now turn to the Ranking Member for his
opening statement. Mr. Cohen.
Mr. Cohen. Thank you, Mr. Chair.
And I Am pleased to have met the witnesses earlier. Nice to
be with you. The Supreme Court has long recognized that the
right of otherwise fit parents and guardians to make decisions
about the upbringing of a child under their care is a
fundamental right under the 14th Amendment's due process
clause. Our witnesses seem to agree on this, on the fact that
no constitutional right is absolute.
So the central focus of our discussion today is whether the
Constitution should be amended, which it should be done rarely,
not only to explicitly state that a parent's right to make
child-rearing decisions is fundamental but to enshrine some
very specific ideas about the nature and scope of that right
into our Constitution.
H.J. Res. 50, the specific proposal before us, would make
some potentially dramatic changes to the state of current law
and could be harmful if adopted. As a general matter, amending
the text of our Constitution is not and should not be a casual
matter. Amending the Constitution every time that there is a
disagreement over the possible effects of a court decision,
which H.J. Res. 50's proponents say is one of the main reasons
why a constitutional amendment is needed, weakens the
Constitution's basic characters of governing framework,
particularly when the concerns driving the change are
speculative, as is the case here.
There is a reason why we have amended the Constitution so
rarely and why the Framers made it so difficult to amend. As a
fundamental document, the Constitution should certainly not be
amended because of policy disagreements or speculative risks.
In a case such as this where the right is already widely
established under the Constitution and where the purported
threats are highly speculative, I would have grave reservations
about moving forward with a constitutional amendment.
My concerns are only heightened by the fact that H.J. Res.
50 itself is problematic for several reasons. First, who would
be protected by this amendment? Section 1 provides that the
``liberty of parents to direct the upbringing, education and
care of their children is a fundamental right,'' but does not
define who is ``a parent.''
Does this provision protect guardians or only biological
parents? The Supreme Court recognized in Pierce v. Society of
Sisters in 1925, that the 14th Amendment protected guardians as
well as parents. So if this provision were given its most
narrow reading, it would be a significant departure from
current law.
Would this provision protect sperm donors but not adoptive
parents? Would this provision protect same-sex couples who were
allowed to adopt in one State but whose adoption is not
recognized in another?
Given its most narrow interpretation, H.J. Res. 50 fails to
protect the rights of the full spectrum of adults who are
legally the primary caretakers of children and does not
recognize the diversity of contemporary families and
parenthood.
Second, as Professor Catherine Ross has testified in her
written statement, section 2 could threaten to undermine our
public education system by essentially giving any parent the
constitutional right to veto any decision as to how a public
school is managed, including choices about curricula, reading
assignments, and school activities.
Third, H.J. Res. 50 will change the law in areas that have
little to do with parental rights. For example, section 4
provides that this article should not be construed to apply to
a parental action or decision that would end life. This
language could be interpreted to prevent parents from choosing
to have an abortion. Moreover, it contains no exceptions for
protecting the health of the mother. It is no secret that I am
strongly pro choice, and I would be seriously concerned about
the substance of this language to the extent that it was aimed
at reproductive rights.
But whatever one's views on abortion or reproductive rights
such as fundamental change to the law in this area, these areas
should not be--changes should not be made through a
constitutional amendment that ostensibly is designed to protect
parental rights. For these reasons, not only is H.J. Res. 50
not necessary, it is also highly problematic and not worthy of,
no pun intended, of adoption.
And I would for the record correct, it was Billie Holiday
who wrote ``God Bless the Child'' in 1938, a Tennessee
resident. And John Conyers would have known that, and I am
sorry, but I had it wrong.
So, with all reference to that, God Bless the Child. I
yield back the balance of my time.
Mr. Franks. Sounds like she might have favored this
amendment.
I am going to now recognize the Ranking Member of the
Committee, Mr. Conyers, for his opening statement.
Mr. Conyers. Thank you, Mr. Chairman.
I will submit my statement after the excellent job of our
Ranking Member Cohen.
But without question, support for the right of parents to
direct the upbringing and education of their children cuts
across ideological and party lines. And the protection of
parental rights under the Constitution has not been questioned,
never been questioned at any time by the Supreme Court.
While admittedly not among the enumerated constitutional
rights, parental rights are, without a doubt, a core right
protected by the due process clause. So as we consider whether
to amend the Constitution to add a parental rights provision,
the first question that should be asked is, is this a problem
that requires amending the text of the Constitution?
As I have noted, the Supreme Court has long recognized that
the right of otherwise fit parents to make decisions regarding
their children's upbringing has a constitutional dimension. And
so over the last 90 years, the Court has issued numerous
decisions that repeatedly reaffirm the fundamental nature of a
fit parent's right to make decisions--decisions, Meyer v.
Nebraska, Pierce v. The Society of Sisters, Washington v.
Glucksberg, Santosky v. Kramer--and so I reject the argument
made by some that the Supreme Court's decision in 2000 in
Troxel v. Granville somehow weakened the constitutional
protection of parents' rights.
In Troxel, the Court correctly ruled that an overly broad
State law that permitted any person to petition a court for
visitation rights at any time and that required the Court to
grant such petition if visitation was in the best interest of
the child, was unconstitutional as applied. So, again, I close
by asking, what is the problem that needs to be fixed by
constitutional amendment? And I will submit the rest of my
opening statement in the record.
And I yield back the balance of my time.
[The prepared statement of Mr. Conyers follows:]
__________
Mr. Franks. I would thank the gentleman.
Without objection, other Members' opening statements will
be made part of the record.
Let me now introduce our witnesses. Our first witness is
Michael Farris. Mr. Farris is a founder and chairman of the
Home School Legal Defense Association, HSLDA, and founder and
chancellor of Patrick Henry College. Since creating HSLDA in
1983, Mr. Farris has helped grow the organization to over
80,000 member families. Mr. Farris has written over a dozen
books, a constitutional law textbook, and works on marriage,
parenting, home schooling, political advocacy, and religious
liberty.
Welcome to the Committee, sir.
Our second witness, Professor Catherine Ross, is a member
of the George Washington Law School faculty. Professor Ross has
been a visiting professor at the University of Pennsylvania Law
School where she also was a senior legal consultant to the
Field center in Children's policy practice and research, and at
Boston College Law School where she held joint appointments in
Reed Morris--the School of Education and the History Department
there. Professor Ross also serves on the editorial board of the
Family's Courts Review and has served on the editorial board of
the Family Law Quarterly.
Our third witness is Wendy Wright. Ms. Wright has been an
active pro-life member and committed to family issues for more
than 25 years on the international and national and local
level. She has advised international and congressional leaders,
testified in Congress, and State legislatures. She writes,
speaks and trains on current issues for a popular audience. Her
work has influenced landmark rulings on freedom of speech in
the U.S. Supreme Court and several other U.S. State courts.
Now each of the witnesses' written statements will be
entered into the record in its entirety. I would ask each
witness to summarize his or her testimony in 5 minutes or less.
To help you stay within that time, there is a timing light in
front of you. The light will switch from green to yellow,
indicating that you have 1 minute to conclude your testimony.
When the light turns red, it indicates that the witness's 5
minutes have expired. Before I recognize the witnesses, it is
the tradition of this Subcommittee that they be sworn, so if
you'd please stand to be sworn.
[Witnesses sworn.]
Mr. Franks. Let the record reflect that the witnesses
answered in the affirmative.
And I would now recognize our first witness, Mr. Farris.
Sir, please make sure your microphone is on before you start.
TESTIMONY OF MICHAEL P. FARRIS, JD, LLM, CHAIRMAN, HOME SCHOOL
LEGAL DEFENSE ASSOCIATION, AND CHANCELLOR, PATRICK HENRY
COLLEGE
Mr. Farris. Mr. Chairman, Members of the Committee, thank
you so much for the opportunity to be able to testify today,
and thank you for holding this hearing. This hearing is called
to answer one central question: Should the traditional right of
parents to direct the upbringing of their children be protected
in the actual text of the Constitution?
There really are only three possible answers. Some think
that the current law which treats parental rights as an implied
right in our Constitution is sufficient to protect appropriate
parental rights as a fundamental right. Second, another group
opposes the very concept of protecting parental rights as a
fundamental liberty interest. And, third, the proponents of the
amendment believe that there are sufficient present and
foreseeable threats to parental rights that it has become time
to adopt a specific amendment.
Now every Member of Congress that I have ever talked to on
this subject has affirmed the core idea that parental rights
should be protected as a fundamental right, and both the
statements of Representative Cohen and Representative Conyers
today were consistent with that, that we all believe that
parental rights are and should be a fundamental right.
If it is simply a drafting issue, I would suggest to Mr.
Cohen that we probably could find political common ground and
get to the correct drafting if there were drafting issues.
But the fundamental issue is, is it time to adopt a
specific amendment? I would like to offer three lines of
evidence that it is, indeed, the time to place parental rights
into the actual text of the Constitution if it is going to be
preserved as a fundamental right.
The first line of evidence is that the Nation is moving in
a practical way in a direction that is absolutely opposed to
parental rights. Our organization has accumulated hundreds of
stories from every State in the Nation and from virtually every
congressional district where parents are being told that they
may no longer accompany their children for routine medical
treatments.
For example: Representative Franks, in your district,
Candace C. from Fort Mohave, Arizona, tells us that she went to
dentist after dentist in her community before she finally found
one who would allow her to accompany her in for the treatment.
Sierra H. from Wooster, Ohio, in Representative Renacci's
district told us that her pediatrician questioned her 12-year-
old son separately from her, despite the fact that there was no
basis for believing that this mother was engaged in improper
behavior toward the son. It turns out that this physician does
this with every child.
Ted from Stateline, Mississippi, was prevented from
accompanying his 13-year-old daughter into the dentist's
office. As is typical in these cases, the doctor told the dad
that the government regulations now require children to be
separated from their children during treatment.
We are hearing this all over the country in virtually every
congressional district and with all kinds of medical providers.
Whether they are dentists or pediatricians or physical
therapists, it really doesn't seem to make any difference. The
governmental command of separating children from parents is
becoming epidemic.
Now, this crisis has found its way into the courts in the
area of psychotherapy with the California and New Jersey laws
that prevent parents, whether their child is willing or not, to
seek therapy for the child that is designed to assist a child
who is experiencing same sex attractions and either the parents
or the child want to avoid those attractions. Now, we have not
reached the point as a Nation where such therapy is banned for
adults. If an adult wants that kind of therapy, they can get
it, so it is not that level of harm.
So the question is, who decides for a child whether or not
this therapy is good or bad? Well, in New Jersey and
California, the government has decided to take the place of the
parent.
The second line of evidence is that although the Supreme
Court, if you read it very closely as a number of lower courts
have done, they disagree with the contention that the Court has
a clear signal that parental rights are fundamental. The Fifth
Circuit in the case I site, Littlefield v. Forney School
District, concluded that it is not a fundamental right. You do
not get the test that goes with fundamental rights analysis,
and that decision has been followed by a district court in
Nevada, Federal District Court in Nevada, and another district
court in New Jersey.
The Court of Appeals California in a home school case that
I argued before the Court of Appeals held that the Federal
courts were out of sync with the idea that fundamental rights
were to be accorded to parental rights, but based on the
California precedent, they gave us the victory that we needed
in that case, but the national standard is diminishing.
Finally, we hear from witnesses like my colleague here
today, Catherine Ross, who argues that parental rights should
not be protected, even in the area of transmitting your own
values to your own children. And I will have more to say after
she testifies, perhaps in questioning. My time is up. Thank you
very much.
Mr. Franks. Thank you, Mr. Farris.
[The prepared statement of Mr. Farris follows:]
__________
Mr. Franks. And I now recognize Ms. Ross for 5 minutes, and
make sure if you would that your microphone is on.
TESTIMONY OF CATHERINE ROSS, PROFESSOR OF LAW, GEORGE
WASHINGTON UNIVERSITY LAW SCHOOL
Ms. Ross. Mr. Chairman, and Members of the Subcommittee,
thank you for inviting me to appear before you today.
My written submission adequately covers the two major
points. There is no urgent need--in fact, there is no need at
all--for this amendment. And I want you to remember that the
proponents' reassurances about their intention in drafting the
text do not change the reality that the amendment threatens to
transform several areas of constitutional law, causing grave
harm.
Before beginning, let me briefly respond to some of
Chancellor Farris' comments. His written submission
mischaracterizes my position on parental rights, home
schooling, and tolerance, and I will be happy to take
questions. I don't want to take a detour through that now, but
he also just gravely mischaracterized my position in saying
that I don't believe parental rights should be protected.
I have never said that, and I have an extensive body of
published work in this area.
The Supreme Court has always given parental rights the
highest deference, as the many cases that I discussed and that
some of the speakers earlier have talked about. I fully support
parental rights, and I agree and have argued that they have a
constitutional dimension, and so the amendment isn't needed.
But like all fundamental rights, parental rights are not
absolute. Courts must also consider the states' substantial
and, I would argue usually compelling, interests in the safety,
health and education of children and the sometimes
countervailing constitutional rights that children possess on
their own as the Supreme Court has held in the areas of
contraception, abortion, and speech.
Parental rights are not under attack. They are not in
jeopardy. And no matter how often Mr. Farris says he is
providing evidence, he has not provided any evidence. My
statement thoroughly rebuts the 24 cases on which he relied in
2012. And his stories today are nothing more than hearsay
attributable to unnamed people and often double hearsay,
stories he has heard from someone about someone else.
And I must say, if doctors don't understand the law,
someone should tell them what it is because there is no Federal
rule or statute that says that children must be seen apart from
their parents, though it is the best pediatric practice, as the
professional literature reveals. To the extent these are State
laws or even congressional laws, use the legislative process.
Have the statutes and regs changed. Don't amend the
Constitution when it is not necessary.
Parents do have rights that are first in time but not
always first in authority. When parents use the public schools,
they have to follow the schools' rules. Their choice under
Pierce is to satisfy compulsory education elsewhere, in schools
that, as Meyer and Pierce both stated very expressly, are
regulated by the State and are subject to that regulation.
I agree there is a problem about who this amendment would
protect. There are a lot of different kinds of parents, but
most importantly, this amendment threatens our parens patriae
traditions in which the state has its own interests in making
sure that the next generation of citizens are brought up
safely, are kept healthy, and receive the education that our
citizens need. I don't think that those kinds of statutes,
regulations, and practices would succumb if this amendment were
passed, but I would bet my house that the proponents and many
others inspired by this amendment would challenge our entire
child welfare system just as the home schoolers maintain
repeatedly and go to court on the question of whether they
should be subjected to any form of state supervision or
regulation, including even having to say they have children at
home and they are teaching them.
Thank you. I look forward to your questions.
Mr. Franks. Thank you.
[The prepared statement of Ms. Ross follows:]
__________
Mr. Franks. And I will now recognize Ms. Wright for 5
minutes.
TESTIMONY OF WENDY WRIGHT, C-FAM,
CENTER FOR FAMILY AND HUMAN RIGHTS
Ms. Wright. Thank you for the invitation to testify today.
The evolution of U.N. Treaties, their reach into issues like
parental rights with views alien to Americans is troubling.
Even more alarming, are government officials giving credibility
to foreign sources that threaten established rights. Advocates
who don't share Americans' beliefs in parental rights turn to
U.N. Experts for validation and a veneer of authority.
U.N. Experts issue opinions and papers dismissing the role
of parents.Agencies like UNICEF say children as young as 10
have rights to access services without their parents'
knowledge, thus giving greater authority to adults offering
such services than to parents.
Supreme Court Justices have looked to U.N. Treaties which
the U.S. Has not ratified or limited by an explicit reservation
to justify their decisions.
The threat to parental rights through the evolution of U.N.
Agreements comes by design. Governments carefully negotiate
U.N. Treaties. Yet U.N. Committees that monitor compliance have
become notorious for misinterpreting and even contradicting
what governments agree to.
Recently the Committee on the Rights of the Child decided
children from ages 1 to 18 have sexual and reproductive rights
and should receive services, including abortion, without
parental consent. The U.N. Committee Against Torture criticizes
restrictions on abortion as tantamount to torture. A Member of
this Committee says opposing abortion may be a form of torture.
This Committee Member is closely aligned with a group dedicated
to overturning abortion laws. At a meeting hosted by this group
she said she looked for opportunities to promote abortion. She
conceded U.N. Committees have no binding authority. They put
opinions out in ether and hope others pick it up, to use in
litigation, to name and shame, and to demand compensation.
In 1996, U. N. staff, activists and academics who shared a
core belief in the sexual autonomy of children, redefining
family and marriage, and abortion, adopted a strategy to use
the U.N. Bureaucracy of experts to create new human rights.
First, U.N. Treaty committees would declare new
interpretations.
Second, U.N. Agencies reinforced the new interpretations
with technical guidance detailing how nations should
incorporate these concocted rights. For example, the World
Health Organization and the Office of the High Commissioner on
Human Rights have published papers on making abortion
accessible with no protections and no parental involvement.
UNICEF claimed the Disabilities Treaty gave children as young
as 10 the right to reproductive and health services without
their parents' knowledge or consent.
Alone, they are just an echo chamber. They only carry
weight if government officials treat them as influential. So,
third, advocates lobby and file lawsuits treating U.N. Opinions
as authoritative.
Following recommendations by a U.N. Treaty committee, the
high courts of Argentina and Colombia struck down their
abortion bans.
Most troubling, Supreme Court Justices have looked to
foreign sources to corroborate their decisions. In Roper v.
Simmons, the court referred to the Convention on the Rights of
the Child, a treaty the U.S. has not ratified. An optional
protocol to the child's rights treaty allows children or groups
to file complaints directly to the U.N. Committee. If the U.S.
were to ratify this optional protocol, complainants who do not
like the outcome of their case based on U.S. law, could invite
U.N. Bureaucrats to sit in judgment of U.S. Laws and norms.
U.N. Staff will rely on paperwork submitted by self-selecting
advocates of this international system. Their perspective will
be the child's rights approach that isolates children as
autonomous and views parents as infringing on children's
rights.
In light of the stated intentions, coordination and funding
that is propelling the international rights based movement, in
particular the child's rights movement, defenders of parental
rights have cause to be concerned. Thank you for your
attention.
[The prepared statement of Ms. Wright follows:]
__________
Mr. Franks. I want to thank the witnesses.
And we will now begin the question time. And I will
recognize myself for 5 minutes for the first question.
You know, I took a note, Ms. Ross, of one of the comments
that you made that said children also have constitutional
rights of their own in the areas of abortion and contraception.
That was sort of a paraphrase. And for a moment, I genuinely
didn't understand what you were talking about. I thought, well,
maybe there is some common ground here. But it is difficult for
me to understand why children have the right to an abortion but
not the right to be protected from it. It is a strange
situation.
I think it also speaks to the whole issue of the necessity
of such an amendment. I think 30, 40 years ago, 40 years ago,
more, most of us in America believed that the right to live was
a fundamental right. In fact, it was clearly enumerated in the
Constitution. It was as clear as it could possibly be. And I
don't think too many people believed that some day, that we
would take the lives of 3,000 children every day, to take their
right to live away every day, even though it is enumerated in
the Constitution, without at least some due process of law. But
that is where we are, so I would commend the sponsors of this
amendment for making sure that they run ahead of some of the
curve here because it has been a pretty wild ride.
The four-judge plurality in Troxel v. Granville, Mr.
Farris, described parental rights as having been recognized as
fundamental historically but then declined to use the strict
scrutiny test that applies to an examination of fundamental
rights. Since then, Federal and State courts applying all kinds
of legal standards have permitted government intrusions on
parental rights ranging from school choice to the most basic
aspects of a child being raised.
Can you speak a little more about these varying standards
that the courts are applying and how this amendment would
address those concerns?
Mr. Farris. Yes, I can, Mr. Chairman. The case that
illustrates the problem that is cited in my written testimony,
is the case of Littlefield v. Forney Independent School
District. That case was about dress codes, and I personally
think that the Court got to the right outcome in the substance
of the decision. But as every lawyer, especially who practices
in the area of constitutional law knows, it is not merely the
outcome of the facts but it is the legal principle that is
announced.
The Court held in that case that in many situations, you do
not use the fundamental rights analysis for parental rights,
but instead you use nonfundamental rights analysis, which is
the least restrictive means method. And what that basically
does is this: It changed the burden of proof from the
government proving that it has a compelling need to intrude
into the family and instead puts the family as bearing the
burden of proof to justify that its reason to object to the
government program is sufficiently warranted. That changing of
the burden of proof from a nonfundamental right to a
fundamental right is a huge difference in outcomes in cases.
And it basically answers this question, who has the primary
authority over the child? If it is a fundamental right, primary
authority lies with the parent. If it is a nonfundamental
right, primary authority lies with the government. It is as
simple as that, and in actual practice, that is how it works.
The Littlefield case should have been resolved, if they
wanted to reach the outcome and not destroy the fundamental
rights test, by simply saying there had not been an adequate
burden shown by simply requiring the kids to have a dress code
adherence in the public schools. And on that point, the idea
that section 2 of the amendment would disable the public
schools, people haven't read it carefully. It says the parental
right to direct education includes the right to choose public,
private, religious or home schools and the right to make
reasonable choices within public schools for one's child. It
doesn't give you the right to change the curriculum for
everybody else, but if you don't want your child going to the
sex ed assembly, you would have the right to make a reasonable
choice for your child. And so the ability to make choices for
other people's children is not protected.
Mr. Franks. Ms. Wright, I am going to try to squeeze in a
question with you. Who makes the decision does, indeed, seem to
be the real choice here, the real question, because one of two
people will make decisions on how a child will be educated or
what their upbringing will be. It will either be a parent who
would pour out their blood on the floor for them or a
bureaucrat who doesn't know their name, and I find that to be
pretty profound.
Ms. Wright, the U.S. Constitution recognizes that
international law in the form of a ratified treaty becomes part
of the supreme law of the land, limited only by explicit
constitutional provisions and safeguards. Treaties adopted by
the United States are supreme over State laws according to the
Constitution. So can you tell me more about how the U.N.
Convention on the Rights of the Child, how it operates and how
it could threaten American families if it were ratified?
Ms. Wright. Thank you. The United States has not ratified
the Convention on the Rights of the Child for a very good
reason. It comes from a different perspective than Americans'
perspective. We truly believe in parental rights and the role
of the parents because parents know their children best.
Convention on the Rights of the Child comes from the child's
right perspective that officials or experts can know better
than parents. So there is good reason the United States has not
ratified it. But what is particularly concerning is that we
have had government officials look to the Convention on the
Rights of the Child to corroborate their own opinions, like
what happened in the Roper decision.
The Supreme Court in a sense validated the point of view of
the Convention on the Rights of the Child. Now, it is the step
by step process that I explained in my testimony that is
particularly concerning, that these treaties like the
Convention on the Rights of the Child set up a committee of so-
called experts. They are experts just because they are
knowledgeable on the subject of the committee, and they are
selected to sit on this committee. They have taken it upon
themselves to--they have the ability to interpret the treaty,
but they have taken it upon themselves in too many cases to
misinterpret or reinterpret the treaties.
Then the agencies like UNICEF take those interpretations,
take those opinions, and validate them in papers, in guidance
to countries, assuming that these interpretations are now new
rights and telling countries how to implement, how to apply
those rights reflected in their laws and their cultures.
So Americans are generally pretty leery of the United
Nations, especially when it gets involved in domestic issues.
People are not quite as aware of this step-by-step process that
is already occurring to misinterpret the treaties even further
than what Americans are already concerned with.
Mr. Franks. Thank you, Ms. Wright.
And I would now recognize Mr. Cohen for 5 minutes.
Mr. Cohen. Thank you, Mr. Chair.
Mr. Farris, first, let me ask you, I was reading the
article, proposed article, section 2, the parental right to
direct education includes the right to select public, private,
religious or home schools, and. Is there any issue right now
with any State prohibiting a parent from choosing a public
school, private school, a religious school, or home school?
Mr. Farris. Not today. As recently as 5 years ago,
California, the Court of Appeals----
Mr. Cohen. Five years ago.
Mr. Farris. Currently, but there are proposals on the
table. The National Education Association, for example, has
standing resolutions to ask that home schools be regulated
under a way that effectively bans home schooling, and if that
political proposition----
Mr. Cohen. You are a great proponent of home schools. Have
you ever testified on home schools in Tennessee----
Mr. Farris. I think I have, yes.
Mr. Cohen. I am trying to remember. And I supported home
schools. I got an award from the home schoolers, in fact. I
worked for 20 years in Tennessee to create a Tennessee State
education lottery, and most of the people that support home
schools or many of them opposed that amendment because they
thought if it passed, that we were going to have Biblical
proportion type events, with locusts descending on our State
and rivers doing like--and all kind of terrible things
happening and lack of oranges and all those things. But none of
them happened, and when the amendment passed, the home
schoolers are the first people at my office wanting to get
their kids lottery scholarships, and I helped them. And they
gave me an award. And I am not against home schoolers.
But I am not also for amending the Constitution unless it's
necessary. Now, we amended our State Constitution to do that,
and we helped a lot of home schoolers get scholarships to go to
colleges. But there is no problem here. You said 5 years ago,
there was a problem, but there is not a problem today. Why
should we amend our Constitution for problems that were 5 years
old and don't exist anymore?
Mr. Farris. The narrow question you asked me is whether or
not people are being banned from making those fundamental
choices. The answer is no. Are they being punished for making
those choices, the answer is yes, they are.
Mr. Cohen. Let me ask Ms. Ross. The second part of that
amendment is the right to make reasonable choices within public
schools for one's child, the parental right to make reasonable
choices within public schools for one's child. How would that
affect public education if that----
Ms. Ross. Well, every parent has different views about what
is appropriate and what is not appropriate for their children.
And I have always pointed out that parents don't come in one
dimension with one set of values. So that means that every
parent would be going into school and saying, I don't like the
reading that is assigned next week. I don't want Johnny reading
that. While it is true that they can't on the surface affect
what every child learns, I want to emphasize that this is not
going to be limited to sex education, which is what we usually
think of. It is already a prevalent problem with respect to the
teaching of basic scientific theory and biology, but it also
comes into play with art history. There may be naked bodies
that some parents object to. There may be parents on the other
side of the spectrum who say, I don't want my kids hearing a
conservative interpretation of American history. How is the
school supposed to operate?
Mr. Cohen. We are having that now in Tennessee. They just
want to have happy history and not really history, and they
don't want to talk about slavery because that is not happy
history. They just want to talk about happy history. It is
really challenging. It is really kind of strange. We don't
really, when you get down to the fundamentals, there are a lot
of things happened in our great country that weren't so
wonderful. I mean, slavery was the worst thing that people
could really think of, next I guess to executions, and we had
that for 246 years. Some people don't want to teach it because
that is unpleasant.
Ms. Ross. It doesn't put us in a good light.
Mr. Cohen. It doesn't put us in a good light, right. So
there is a whole bunch of that stuff.
How would this affect--would this amendment possibly allow
a parent to maybe deny vaccinations for their child and/or
treatment, life-saving treatments, or maybe even allow a parent
to give their child alcohol or drugs against the laws of the
State?
Ms. Ross. I think if taken really seriously, there could be
court cases in which parents claim that this is beyond the
government's power. I think each of the examples you used, the
government could make a clear case that there was a compelling
interest, but we shouldn't have to reopen these very
fundamental issues.
Mr. Cohen. Ms. Wright, your group deals with religion. What
if a group thought peyote was a part of their religion--and
there are still such folks that get a religious experience
therefrom--and wanted their children to partake in this
experience and have a group religious experience. Would this
amendment protect people for giving their children peyote,
would it not?
Ms. Wright. I would not address that issue. I am not an
attorney, so I don't feel qualified to address that.
Mr. Cohen. Mr. Farris, you are an attorney. Would you feel
comfortable? This would say the parents have a right to give
their children peyote.
Mr. Farris. I think the government would have a compelling
governmental interest in that case that would be sufficient to
overcome.
Mr. Cohen. Why?
Mr. Farris. Why? Because I think the showing could be that
peyote would harm the child, and that would be the standard.
Mr. Cohen. What if it was marijuana? The government
couldn't show that marijuana would necessarily harm the child.
Mr. Farris. That is, you know, there are whole States all
mixed up on that. I think that marijuana is harmful.
Mr. Cohen. For children it is, but some parent may not
think that. But you are giving the parents the right to decide
that.
Mr. Farris. Right. I am sorry. I didn't mean to interrupt.
Mr. Cohen. Well, I have interrupted you, I guess. But you
are giving parents the right to decide that.
Mr. Farris. No. The lawsuits that you proffered, anybody
can sue about anything, and it doesn't mean they are going to
win. So you do drafting by lawsuits that are predictably
winnable. I don't think that any of the parade of horribles
that--Ms. Ross gave a careful answer. Parents could file such
lawsuits. That is true. They could file such lawsuits. Would
that be given the light of day? No, they wouldn't be given the
light of day.
I litigated a case a couple years ago in Michigan which has
a statute that tracks this language almost exactly, Michigan's
Parental Rights Statute. It was a medical neglect case where a
little boy had Ewing sarcoma, and in that case, the evidence
was not clear whether the boy was sick, and the drugs they
wanted to give him were not clear that they were safe and
effective. We argued it was the gray zone. Who makes the
decision when it is a gray zone? If it was clear that this boy
was sick and the medicine was safe and effective and they
refused to give it, the government would have the right to
override. But when it is not clear that the boy is sick and
when it is not clear that the medicine is safe and effective,
who decides then? That was the case we litigated, the case that
I won in the trial court, using a statute just like this that
said parents decide in those kind of close cases. That is the
outcome we would see under this language.
Mr. Cohen. My time having expired, and the Chairman is
being very liberal with my time. I yield back the balance that
I don't have.
Mr. Franks. Thank you, Mr. Cohen.
I now recognize Mr. DeSantis, the gentleman from Florida.
Mr. DeSantis. Thank you, Mr. Chairman.
Mr. Farris, what protections for parents are included, if
any, in any State constitutions? Is that something that you
have looked at?
Mr. Farris. I have looked at it. I haven't looked at it in
the last couple of weeks, but I am pretty sure that Oklahoma is
the only State that has a State constitutional protection.
There is a movement in Missouri. I believe the Missouri
legislature looked at it. I don't know whether it passed, but I
don't think it has gone to a vote of the people yet.
Mr. DeSantis. I mean, it seems to me just thinking through
some of the issues raised--let's put aside international
treaties. It seems the lion's share of issues that would come
up with this would be based on local or State action, as
opposed to Federal. Do you agree with that?
Mr. Farris. That is correct, but the international
component of this is not insignificant. And so the design of
the Parental Rights Amendment is to answer the parental rights
issue once and for all while we still have societal consensus
on the issue. And with the Convention on the Rights of the
Child and the other things, which overrides State constitutions
and under the explicit language of the supremacy clause, any
conflict between the CRC and the constitution of Oklahoma, the
CRC will prevail in American courts.
Mr. DeSantis. Understood. Now, with respect to the treaty
and how that would prevail, if you just had the first four
sections, you wouldn't need section 5, would you? In other
words, if something is in the Federal Constitution, you
cannot--the Senate cannot infringe on the Constitution by
ratifying a treaty. Now, I know there are cases out there, and
there are some people who, but the way the Constitution is
supposed to work, you cannot legislate around the Constitution
by treaty. Correct?
Mr. Farris. Correct. The reason that section 5 is in there
is in my course work in getting an LLM in Public International
Law from the University of London, I wanted to take into
account the eventuality that we end up in an international
court. In an international court, our Constitution is secondary
to treaties, unless the treaty is in conflict with a provision
of the Nation's Constitution, and it goes to the capacity to
enter into the treaty. So I wrote section--I drafted section 5
with a design to trump treaties, even if we end up some day in
an international tribunal like the tribunal that is being
created by the Committee on the Rights of the Child, the
optional protocol that exists today. That was the reason for
section 5.
Mr. DeSantis. Okay. Got you. In terms of section 2, this
reasonable choices, and this may be, there may be background
law for this, I just don't know. For example, on the Fourth
Amendment, unreasonable searches and seizures, that had a
common law context and people kind of knew what that meant,
because I have heard some of the back and forth here, is there
kind of a body of objective standards that we would see what is
a reasonable choice? Because it seems like some people would
think something is reasonable, and others would say that that
is not reasonable.
Mr. Farris. There have been a great number of cases that
have been litigated about opting out of various programs in the
public schools. I litigated one of those myself in Tennessee
about 30 years ago, it seems like. And the courts have a record
of what is reasonable and what is not reasonable. But in the
last 10 or 15 years, we have moved away from that standard and
to the standard of saying, you don't have the right to object
to what your child learns in the public schools at any time for
anything.
Mr. DeSantis. And so if this were ratified, are you
confident there would be an objective meaning to that that
would be understood by society that could be applied in
different cases?
Mr. Farris. Yes, I do believe that. The attempt has been at
this stage, obviously, drafting changes could be made if there
is a need for clarity on any point, but the attempt has been
made to use terms of art that have a recognized history behind
them where we know what they mean. We know that a governmental
interest as applied to the person is of the highest order and
not otherwise served. There are hundreds of cases about all
that terminology. Those are recognized terms of art. It is
literally word for word out of Yoder. And so what I was trying
to do in helping to draft this was to make sure that we are
using the very language that the courts have recognized so that
we are walking on carefully plowed ground, not on new ground.
Mr. DeSantis. Thank you for that.
Ms. Ross, just a little piece that I noticed in your
testimony that I disagreed with. You write, since 1791, no
amendment has been adopted that was designed to entrench
current understandings of the law into the Constitution. And I
noticed you used the words ``since 1971,'' but I mean, the Bill
of Rights in 1791, wasn't that the whole purpose that they were
trying, you used the words ``entrench,'' I would say enshrine,
current understanding of the rights that the Founding Fathers
believed were part and parcel of what it meant to be, before in
the colonial times, the rights of a Englishman, and that
reflected that common law tradition, and they did want to
enshrine that so that they would protect it in the future so
that those protections would endure. In case society changed,
they wanted that to be anchored into the Constitution.
Ms. Ross. That is an excellent point. And yes, you are
right. But there is a story behind that, which is the debate
among the Founders, between Madison and other Founders, about
whether the Constitution had to expressly reserve the rights
that everybody assumed they already had as Englishmen.
Mr. DeSantis. No, I understand that, and that was a very
important----
Ms. Ross. Right, and that was a tradeoff in order to get
enough of the colonies to--former colonies to ratify the
Constitution. It was not suggested that after that time, every
time there was a right that people thought they had, they would
need to put it in the Constitution. We have never seen that
happen since 1791.
Mr. DeSantis. But the fact that they did do that, I just
think it cuts against your point because Hamilton's argument in
the Federalist was that the Constitution of itself is a Bill of
Rights. You don't need a special bill of rights because it is a
government of limited and enumerated power, so you don't need
to say that you can't establish a national religion because you
have no affirmative source of authority to do that. So the fact
that they went back and did the Bill of Rights, to me would
suggest that even if there is precedent for certain rights,
they felt the need to codify it into the Constitution.
So, I mean, take your point. I think you have made some
good points. And I am somebody who I do support some
constitutional amendments, but I think we need to approach this
in a very judicious way. But it seems to me, and I would even
say the 22nd Amendment in some sense, there was a longstanding
tradition that had been broken by FDR, and then people went to
codify that, but I appreciate your testimony.
I am out of time, so I will yield back to the Chairman.
Mr. Franks. And I thank the gentleman.
And I would now recognize the gentleman from Virginia, Mr.
Scott for 5 minutes.
Forgive me. We will recognize Mr. Conyers for 5 minutes.
I am so sorry. Forgive me. Forgive me. We recognize Mr.
Conyers for 5 minutes.
Mr. Conyers. I don't mind yielding to----
Mr. Franks. Mr. Conyers had given an opening statement, and
I sort of assumed that he had taken his turn, but he hasn't.
Mr. Conyers. I will be relatively brief.
Let me ask Ms. Ross this question. Ms. Wright maintains the
Supreme Court's decision in Roper v. Simons finding that death
penalty for juveniles would be unconstitutional is the reason
why the U.N. Convention on the Rights of the Child threatens
the constitutional liberty of parents to make child-rearing
decisions.
How do you interpret this issue?
Ms. Ross. Well, Ms. Wright herself has agreed and conceded
that the committee that is charged with supervising the
implementation of the Convention on the Rights of the Child has
no enforcement powers. No enforcement powers. That means the
committee cannot go after the United States in its own forum,
in any international court that exists today, in domestic
courts. So I don't see how the U.N. convention could limit the
rights of parents in the United States.
With respect to what she said about the Court taking
cognizance of what other countries do in terms of the death
penalty and minors and--for acts committed while they were
minors, there is a special place in Eighth Amendment
jurisprudence that is not found anywhere else. We have a
tradition of the Court looking at what other countries do to
try to assess the evolution of the sense of decency.
Mr. Conyers. Ms. Wright, as a leader in the Center for
Family and Human Rights Institute, do you have a response, or
is there anything you would like to add?
Ms. Wright. Yes, and thank you for the opportunity to
respond. As I pointed out in my testimony, the interpretations
of the committee do not have any binding authority. Even the
committee members admit that.
The problem comes when government officials, U.S.
Government officials, give these opinions some sense of
authority, looks to them for guidance, and--and that has
already occurred. That is--that was my reference to the Roper
case, is that we even have some Supreme Court Justices who have
looked to these treaties--in fact, a treaty that we have not
even ratified--as if it provides some guidance for us. And that
is why people have concerns. It is because of the actions of
government officials that have caused parents and others to
have concerns that these officials will look to foreign sources
for authority as opposed to relying on the American
Constitution, American statutes, American values.
Ms. Ross. I think you are just over--I am sorry. Ms. Wright
is overlooking what I said about the special jurisprudence for
the Eighth Amendment, which has always looked internationally.
I don't think there are other good examples.
Mr. Conyers. Now, Attorney Ross, Mr. Farris acknowledges
that no constitutional rights, even fundamental ones, are
absolute. But what are some of the instances where we ought to
be wary of making it too hard for a State to become involved in
the parent-child relationship? Could you comment on that?
Ms. Ross. I am sorry. I missed the last part of that
sentence.
Mr. Conyers. Yeah, what are some of the instances where we
should be wary----
Ms. Ross. Oh.
Mr. Conyers [continuing]. Of making it too hard for a State
to become involved in the parent-child relationship? I wanted
to ask you that.
Ms. Ross. Yes. Well, let me begin by just saying something
about two of the cases that Mr. Farris used in his testimony
today. Littlefield, the school uniforms case, and Jacobs, the
case that he added in his testimony for this year involving
school uniforms, the Court actually said that there was a
compelling government interest, even though that wasn't the
standard that it needed to use, in school safety and
orderliness. And the Court also in Jacobs characterized this
sort of dispute, and I am paraphrasing here, but as kind of
administrative skirmishes between parents and school systems
that did not implicate fundamental rights. So I think the use
of that was not entirely on point.
In Jonathan L., the case that Mr. Farris helped to
litigate, that received a big victory in the California law,
which had previously been understood to bar home schooling
unless the instructors were certified, and there the court
said, no, actually, you have to allow home schooling, but the
case was about dependency in a case where the family had been
involved with protective services for 20 years. And there had
been sexual abuse and physical abuse, and the trial court,
dependency court, said these children have to be in public
school so that there are mandated reporters who have contact
with them and can protect them from grave danger. That is
really what the case is about.
Mr. Conyers. Thank you.
Thank you, Mr. Chairman, for your time.
Mr. Franks. The gentleman from Ohio, Mr. Jordan, is now
recognized for 5 minutes.
Mr. Jordan. I thank the Chairman for this hearing, and I
will be brief. I have to--I apologize for being late, and now I
am leaving early. The typical schedule around here.
But I just came to thank Ms. Wright and Mr. Farris for
their work on this issue and a host of others. We home schooled
our children--well, I use the term ``we'' lightly. My wife did
all the work, but we home schooled them, and we used to write
$100 check to Mr. Farris' organization, I remember, when being
involved in the Home School Legal Defense. So we appreciate
tremendously the work you have done in standing up for the
rights of families and parents and appreciate you being here
today and offering your testimony.
Ms. Ross, I don't know you, or I would have said something
nice about you, too, but I appreciate Mr. Farris and what he is
working on and Ms. Wright.
And, Mr. Chairman, I have got to run to a quick meeting,
and be happy to yield to the Chairman if he needs some time.
Mr. Franks. Thank you. I will go ahead and take the time,
then.
Thank you, Mr. Jordan.
Mr. Farris, did you have a follow up?
Mr. Farris. Yeah, I would to correct the record on the
Jonathan L. case. The Jonathan L. decision was not the--Ms.
Ross simply doesn't know the facts. The facts were that the
family won in the trial court, and that the trial court had
said that the right to home school was an absolute right, and
that got the attention of the court of appeals. The court of
appeals and--in a dependency matter, where I was not counsel,
was unaware of it, no home schooler was aware of it, ruled not
only that this family shouldn't home school, but nobody in
California should be allowed to home school, and so the
rehearing was about that second issue, was whether anybody in
California should be allowed to home school, and that was the
issue that I litigated. I did the oral argument on the
constitutional issues in that case on--on the right of people
in general in California. So trying to read that case as case
specific to that family is not correct.
The other thing that is important to note, you know, she
has focused in the Littlefield case as an example, the New
Jersey case as an example, of even if the court does say in
passing, this also happens to meet the fundamental rights
analysis, the fact is, and we have to stare directly in the
face, they say the correct legal standard is to treat parental
rights as a nonfundamental right. That is the holding of the
Fifth Circuit. That is the holding of these other courts. And
so their argument in the alternative that, in this particular
case, it would even meet the other standard doesn't change the
fact that they have changed the standards, and so the reality.
The other thing is that on the international debate between Ms.
Wright and Ms. Ross, it has not been limited to the Eighth
Amendment that they have used, the Convention on the Rights of
the Child. The Federal District Court in the Southern District
of New York on two occasions has ruled that New York State
practices were improper and void as a violation of the
Convention on the Rights of the Child, which was binding on the
United States under the doctrine of customary international
law.
A Federal district judge in Philadelphia used a protocol--
an optional protocol to the Convention on the Rights of the
Child to rule in a--that that treaty was binding on the United
States as customary international law, and neither of those
cases were in the Eighth Amendment context. One was an
immigration case where there--a parent could be deported,
leaving behind a citizen child. The case in Philadelphia was
about an American citizen who went and did sexual--sex
trafficking in Moldova or some place like that. And he should
have been hammered, and the court got the right answer, but
they shouldn't have used customary international law to get
there, and so the reality is our Federal courts are actively
integrating these treaties as customary international law
binding upon the United States. The Supreme Court hasn't said
so yet, but the Federal lower courts are doing it every day.
Mr. Franks. Mr. Farris, I have got just another minute
here.
One of the more significant issues here in my mind is
whether or not the parents' rights are treated as fundamental.
You have emphasized that in a tremendous way, and, of course,
this is what the courts, even though they perhaps have come to
the right decisions in the long run in changing this scrutiny,
this test, it occurs to me that we might look to see if there
are cases out there or other instances out there where the
diminishment of this scrutiny, what--do you know of any other
tests or cases that are out there or anything like that where
they are taking advantage of this diminished scrutiny? Any one.
Mr. Farris. Yes, I can supplement the record with a list of
cases. The fairest way to describe--in fact, if you look at the
legal literature as well--is we are in disarray. We are in a
state of flux. The courts don't know what the correct standard
is. Troxel was a splintered case with six different opinions,
and the California Court of Appeals reviewed it. So, you know,
we can all opine on what we think it means, but in practice,
the courts are looking at it, and they are opining on what they
think Troxel means, and the courts are concluding that Troxel
has jettisoned the fundamental rights, strict scrutiny
standard. Only one Justice, Justice Thomas, used the strict
scrutiny standard, and--in that case, and, you know, Justice
Scalia said these are not legally protected rights at all, and
so--and there is a growing body of judiciary--members of the
judiciary that agree with that. So we are--we are in real
trouble if we apply reasonable projection to where we are going
and looking at the signs what the judges are saying.
Mr. Franks. Thank you.
And I would now recognize, finally, the gentleman from
Virginia, Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Farris, it is my understanding of your testimony that
you believe that the standard--that the parental rights are in
fact protected, but the only question is whether that decision
is made on the basis of strict scrutiny or intermediate
scrutiny or rational basis, but basically, the rights are
there.
Mr. Farris. Correct. If it is a nonfundamental right on the
rational basis test or limited scrutiny, it is the same as the
right to own a blue car. Or, you know, it is a basic liberty
interest that everybody has for every decision in their life,
and I think the parental rights deserve a higher protection
than a nonfundamental rights standard.
Mr. Scott. And you are going to provide us with cases where
the fundamental right was not protected?
Mr. Farris. Yes. We can provide you with additional cases.
My 2012 testimony gave you about 25 of those, and I can
supplement that with additional ones. There are a few in my
testimony today, but the fairest example is that it is
confused, and there is a lot of confusion out there----
Mr. Scott. Are there any cases where the parental rights
coincided with the best interest of the child and those rights
were not protected?
Mr. Farris. Well, Mr. Scott, no, because the best interest
of the child is not an answer to a what question, what is in
the best interest of the child, even though we think of it that
way. It is a who question. The best interest of the child is
essentially a dispositional standard in our system in that we
don't get to the best interest standard, if we are going to
follow traditional rules, until after there has been a
predicate finding that the parents have harmed the child or the
marital relationship is broken. There has got to be something
broken about the relationship before you impose that standard.
There is a Washington case----
Mr. Scott. You mean if the parents are doing something that
is not in the best interest of the child, when should that be
protected?
Mr. Farris. Mr. Scott, the best interests of the child
standard is--the way it has traditionally worked, step one, you
make a finding that the parent has harmed the child, and when
that happens, then the parent's right to make the decision is
forfeited, or at least limited. At that point, then the court
steps in and says, what do I think is in the best interest of
this child? This parent is forfeited in the medical care of
this child. Now I have got to decide is it this doctor or that
doctor or another doctor, and it is--and it is a decision about
who makes the decision, and so if the parent refused to get the
child medical care and they clearly had cancer, as an example,
the judge is not only going to say, you've got to have
treatment. The judge is going to pick the doctor, because he
has to at that stage.
Mr. Scott. Well, let me back up a step, because we are kind
of slipping on this.
Are there any situations where the best interest of the
child are being violated and this constitutional amendment will
protect the violation of the best interest of the child?
Mr. Farris. Mr. Scott, I don't mean to be contentious, but
the best interest of the child is not a standard that is the
kind of standard that you violate or not. It is an
implementation standard. It is saying, should I send the child
to this----
Mr. Scott. Well, we are going to have to disagree on this,
because if you are violating the best interests of the child,
either this constitutional amendment will protect those--that
violation or it will not.
Mr. Farris. The way I would word it, Mr. Scott, is that if
the parent is harming the child, this amendment will not allow
parents to harm their children. And the----
Mr. Scott. Where is that in the constitutional amendment?
Mr. Farris. Where does it say that?
Mr. Scott. Yeah.
Mr. Farris. In section 3, that the government interests of
the highest order. That is the recognized traditional standard.
When can the government override the wishes of the parent? When
there is an interest of the highest order. Child abuse is an
interest of the highest order. The government can intervene for
child abuse or neglect. This is right out of Yoder. This has
been the law for a long, long time, and the child welfare
system works just fine in ferreting out--well, usually works
fine, but the principles work fine even if all the factual
cases don't work out that well, and so then all we are doing is
enshrining the----
Mr. Scott. Let me just get back to the basics. If the
parents are violating the best interests of the child, this
constitutional amendment will have no effect. Is that your----
Mr. Farris. If the parents are harming the child, this
amendment will have no effect.
Mr. Scott. Okay. Ms. Ross, is that your reading of the
amendment?
Ms. Ross. No. First of all, we would have to define
``harm.'' That will not be an easy matter. The Yoder standard
came up under religious exercise, the quote with which the
Chairman--Mr. Chairman, opened the hearing was directed to
religious exercise. That is no longer the constitutional law
since the Supreme Court's 1990 decision in Smith, and I think
that some part of the motivation behind this amendment may be
dissatisfaction with the lesser protection accorded under the
exercise clause, which used to give parents a lot of room to
determine the needs of their children that might or might not
serve best interests.
I also want to say in response to your question that more
than 40 percent of the children in the United States today are
born outside of marriage. We have no reason to assume that
their parents will be able to agree on anything about how to
raise these children. And the amendment does not deal with that
social reality, because between two parents who disagree about
how to educate their child, whether the child should see a
doctor alone, any number of disputes that an intact family gets
to make without intervention so long as the child is not
harmed, somebody is going to have to break those ties, and that
somebody is, unfortunately, very likely to be a judge under our
entire framework of family law.
Mr. Franks. Thank you, Mr. Scott.
I now recognize Mr. Johnson for 5 minutes.
Mr. Johnson. Thank you, Mr. Chairman.
Language in the resolution states the following, ``The
amendment''--well, no, not quote, but the amendment states,
``Shall not be construed to apply to a parental decision that
would end life.''
Does that part of the statute that you are proposing, sir,
does that assume that life begins when the sperm fertilizes the
egg?
Mr. Farris. Mr. Johnson, I had a hand in drafting this
language overall. I did not have a hand in--I was not the force
behind this particular section, that was the National Right to
Life Committee that insisted on this being added.
Mr. Johnson. And what that means, because it is premised on
the assumption that life begins when the sperm fertilizes the
egg, is that----
Mr. Farris. Whether--whether it does or not, the--what
the----
Mr. Johnson. Well, would you give your legal opinion to us
as to whether or not it is based on that assumption?
Mr. Farris. The committee can make the record so the
original meaning of the text can be ascertained. I don't know.
Mr. Johnson. Okay. Let me ask you----
Mr. Farris. But let's assume that it does. Let's make that
assumption.
Mr. Johnson. If we assume that it does, then it would ban--
it would not enable a woman to make a choice to terminate a
pregnancy.
Mr. Farris. No, Mr. Johnson, with all due respect, what
this is saying, it ``shall not be construed to apply,'' meaning
if you are going to make decisions about abortion, you got to
look to other sources of law. It is take--the intention behind
this is to take the abortion issue out of the zone of this
amendment. It is designed to say, Kings et----
Mr. Johnson. Well----
Mr. Farris [continuing]. This doesn't apply.
Mr. Johnson. What it actually says is that if life begins
at conception, assuming that----
Mr. Farris. Right.
Mr. Johnson [continuing]. Is the case, then this amendment
would specifically exclude the power of a parent to terminate a
pregnancy. It would grant a parent more power than parents have
now, but it would restrict the ability of a parent, assuming
that life begins at conception, it would keep a parent--or it
would consistently allow a rule that would ban a parent from
exercising their rights, even two parents, deciding that a
fetus should not be taken to term for some reason, just like
Wendy Williams down in Texas running for Governor----
Mr. Farris. Mr. Johnson, I assure you that that is not the
intention. If this language does not accomplish that
objective----
Mr. Johnson. But that is what the language says.
Mr. Farris. The language says, It shall not be construed to
apply, meaning that this article, the whole section, is
inapplicable in the area of abortion. That was the intention
behind it. And if it doesn't say that----
Mr. Johnson. Well, it would provide for an exclusion from
the protection to parents that this amendment to the
Constitution would offer in so far as it would exclude a
parent's ability to terminate a pregnancy.
Mr. Farris. With all due respect, I don't read it that way.
That is not its intention. What it would do, it basically says
if you are arguing that a parental consent law should be
supported, this amendment won't help you, because we have
excluded the subject matter. It is intended to be a subject
matter exclusion, and if your--if we can win your vote on
clarifying this language, I know that we can clarify the
language to your satisfaction. If that is the only problem that
we have got, we can fix it so that--that--because what you
want--what you appear to want and what I appear to want on this
issue is we don't want this amendment entering into the
abortion discussion at all.
Mr. Johnson. Well, it is. I view it as a poison pill to the
passage of this particular resolution for those who believe
that women should have a right to choose.
Mr. Farris. I would hope that we could find language that
would accomplish our mutual objective. I don't want this
amendment getting wrapped into the abortion dispute one way or
the other.
Mr. Johnson. Well, by giving the National Right to Life
group the ability to insert this clause into the legislation
has done exactly what you don't want it to do.
Mr. Farris. I understand.
Mr. Johnson. I would also ask whether or not that same
language, does it mean that parents wouldn't have the right to
determine whether or not to take their child off of life
support?
Mr. Farris. It would--it would say that you have to look to
other sources of law on that question. That is what it is
intended to say, and so if State law or Federal constitutional
law of another sort or another source answers the question,
then that is where you look to find the answer. It is intended
to not give an answer one way or the other on life-ending
decisions, whether they are prebirth or post birth. It is
intended to say, We are not dealing with that subject matter.
Mr. Johnson. Well, again, you are granting parents some
rights, unspoken rights, with this constitutional amendment,
but at the same time, you are excluding a category of parental
rights that has already been well entrenched in the law.
Mr. Farris. Right. We are trying not to affect that area of
law and let that area of law develop independently and on its
own. If that changes--you know, if Rowe v. Wade is repealed by
judicial decision or by acts of Congress, that happens on its
own. We are trying to stay out of that fight.
Mr. Johnson. I don't see how you can do it with the
legislation as written. I just really----
Mr. Farris. I wish it wasn't there, but I don't think it
means--it certainly does not--it is not intended to mean what
you are--what you are wondering.
Mr. Johnson. Well, that is a clear----
Mr. Farris. If we can fix the language----
Mr. Johnson. A clear reading of the language, I believe,
would support my interpretation of it. I don't see how it could
support any other--there is no other reasonable analysis.
Thank you, Mr. Chairman.
Mr. Franks. Yes. Thank you, sir.
And, you know, this is a subject of profound importance.
You know, more than any other mortal paradigm, I suppose, the
ideals and information educationally, spiritually,
academically, the ideals that we inculcate in the hearts and
minds of our children dictate the future of the human race in
the most profound way. And so it is a subject of great
importance. And the real question here that has been examined
is who has the primary and fundamental right to inculcate those
principles and that education and those truths. And we had
better choose carefully, because the implications have an
expressible gravity.
And with that, I would thank all of the panelists for
joining us today. Very interesting hearing, to say the least.
Without objection, all Members will have 5 legislative days
to submit additional written questions for the witnesses or
additional materials for the record. And, again, I want to
thank everyone that joined us today and all the audience, and
this hearing is adjourned.
[Whereupon, at 3:29 p.m., the Committee 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 Steve Cohen, a Representative in
Congress from the State of Tennessee, and Ranking Member, Subcommittee
on the Constitution and Civil Justice