[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




                                 
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