In a recent article on the Obama Administration’s incremental assault on parental moral authority, Caleb Henry observes that the Supreme Court’s Obergefell decision portends the government’s imposition of a progressive “moral reeducation program” against private schools and families. Pointing to increasingly explicit public school interjection into morality traditionally entrusted to the family and church, Henry asks, “What happens when parental ethical standards conflict with the ethical standards promoted by the Department of Education?”
Alas, the mechanisms of state interference in family morality have long been a staple of the so-called “family” court system in this country. The constitutional groundwork for a more immediate intervention has been laid since at least 2000, when the Supreme Court gratuitously inserted itself into a seemingly innocuous case involving state grandparent visitation law.
In Troxel v. Granville, the mother of two children born out of wedlock sought to limit visitation with the parents of their deceased father. The paternal grandparents sued under the visitation provisions of the state’s domestic relations law. The trial court decreed more visitation than had been offered by the mother. On the mother’s appeal, the state supreme court threw out the decree, holding that the visitation statute infringed upon the mother’s constitutional right to rear her children. Holding that, “the Constitution permits a State to interfere with the right of parents to rear their children only to prevent harm or potential harm to a child,” the state court held that the statute did not require a threshold showing of harm, but, instead, allowed a trial judge to overrule a parent “merely because it could make a ‘better’ decision” than the parent. Here indeed was a victory for parental authority against the encroachment of an overweening State, a rule as clearly articulated as it was straightforward to apply: no government interference unless there is a prior showing of a genuine threat of significant harm to the child.
Orthodox. Faithful. Free.
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The U.S. Supreme Court accepted the case on a purely discretionary basis (writ of certiorari), which was unusual given the limited impact of the decision, affecting as it did only a single state. It is clear from the numerous separate opinions (an extraordinary six in all) that the Court’s purpose was to disavow the “harm to the child” standard in favor of empowering judges to second guess parents on the basis of their determination of what they deem is “in the best interests of the child.”
Lawyers and judges pay lip service to the objectivity of such a standard, but, in practical application, no parental decision is safe from meddling by “enlightened” and “progressive” judges who alone (because such cases are tried without a jury) determine what is in the child’s “best interest.” In Missouri, for example, where I practiced law for 30 years, judges only nominally make these decisions. The real “trial” takes place in the mind and imagination of a court appointed guardian ad litem (GAL)—a lawyer “trained” in the latest doctrines of political correctness—who is charged with advocating the “best interests” of the child. Judges almost universally adopt the position advocated by the GAL. The GAL training program (which I have attended) explicitly suggests that parents who dissent on religious or other grounds from the ascendant sexual/gender ideology are by definition not acting in the child’s best interest. (I was once present at a deposition where the GAL actually objected to questions presuming the immorality and harmfulness of the “hook-up” culture; the most she would allow was that hooking-up was “not ideal.”)
The federal constitutional right of parents to direct the upbringing of their children descends from the same penumbral emanations of substantive due process that gave us “fundamental rights” to abortion, sodomy, and, now, homosexual “marriage.” Given the casuistic inclination of federal courts to circumscribe explicit First Amendment rights (as the Little Sisters of the Poor and various wedding servicers have discovered), we should expect a similar (and rapid) “development” in the law of parental authority.
It is a very small step for a Supreme Court that constitutionalized homosexual “marriage” to conclude (using Justice Kennedy’s formulation) that “new insight reveals” that children must be protected from parental morality. Foreshadowing this doctrinal “development” was Justice Stevens’s separate opinion in Troxel:
The constitutional protection against the arbitrary state interference with parental rights should not be extended to prevent the States from protecting children against the arbitrary exercise of parental authority that is not in fact motivated by an interest in the welfare of the child… The almost infinite variety of family relationships that pervade our ever-changing society strongly counsel against the creation by this Court of a constitutional rule that treats a biological parent’s liberty interest in the care and supervision of her child as an isolated right that may be exercised arbitrarily.
Of course, no one reasonably contends that parental authority ought to be absolute, or that the government has no power to intervene in some parental decisions. The question is: When and under what circumstances may the state interfere? Clearly, the government can intervene where the parental decision objectively threatens genuine, significant, enduring physical or psychological harm to the child.
The threat to parental authority comes from judges, lawyers, social workers, GALs, and other “experts,” who often impose their value judgments about what is “in the best interest of the child” over and against those of parents. An example of this occurred in a recent Missouri case, in which the trial judge ordered visitation in a stepparent adoption to the mother of the man who voluntarily gave up his parental rights. (Full disclosure: I represented the parents in this case.) The GAL faulted the child’s mother and adoptive father because they “wished to limit the child’s world to just their new family.” The trial judge relied on the GAL’s generic opinion that it is in a child’s best interest “to have as many people as possible who love her and care about her and who will see to her best interest in her life.” (Does anyone see a connection to the “it takes a village…” mentality here?) The overruling of the parents’ determination of their child’s best interest was imposed despite the specific factual finding that no harm would result if visitation were denied.
The appellate court did not reach the “best interests of the child” question, but reversed outright, because no statute authorized visitation in such a case. At the risk of stating the obvious, what happened was that the trial judge imposed his view (parroting the GAL) of the child’s best interest, even though he had no legal authorization to act in any manner. Nevertheless, rather than admonish the trial judge for his abuse of power, the appellate court took the extraordinary step of castigating the parents for transgressing a “moral obligation,” and even excused the trial judge’s abuse on that basis. This is what families are up against when state agents (be they federal bureaucrats, local judges, or other functionaries) mount their moral high horses.
The parents in this case ended up winning because they were able to shoulder the burden of an appeal, and the outcome was determined by the reality that the trial court had no statutory authority to act. More typically, however, a judge’s determination of the child’s “best interests” is accorded almost invincible deference, and the slightest evidence (often just the opinion of the GAL) will sustain a judgment. In Missouri, for example, even though the legislature expressly forbids prejudice against homeschooling, the family court “establishment” is de facto quite hostile, especially when religion is the motive.
Mr. Henry is quite correct in his concern about the threat against parental authority emanating from the federal educational bureaucracy. It is indeed likely that federal authorities working through local minions and sympathizers will avail themselves of the “family” court systems already imbued with hostility toward traditional values and Judeo-Christian morality in particular.
The answer to the problem is for legislatures to take power away from the lawyers, judges, GALs, and other bureaucrats with explicit statutory enactments. Troxel only holds that a state may interfere with parental decisions in a broader range of circumstances than simply when the child is threatened with harm. It does not prevent a state from restricting the influence of judges and other state actors to cases of threatened harm.
Accordingly, state legislatures should begin by enacting changes to their domestic relations laws that explicitly mandate that any decision of (a) fit parent(s) regarding a child’s “best interests,”—including decisions regarding the religious and moral education of the child—shall be presumed correct, and shall not be subject to review by any court or agency, unless it shall first be demonstrated by clear and convincing evidence that the challenged decision threatens imminent, substantial, medically diagnosable harm to the child’s physical or psychological health. Such legislation should also contain a provision mandating that parents be reimbursed by the state and other adversaries for reasonable attorney fees and litigation expenses in cases they have won. (This will protect parents from the financial burden of abusive, coercive litigation.)
This addresses only the protection of decisions by united parents. In divorce cases and other irregular parental situations, there may still be a need for court systems to adjudicate between opposing parents/guardians/custodians. Especially in the context of divorcing Catholics, other mechanisms for divesting power from the “system” will need to be devised in order to protect the expectations of parents to the Catholic upbringing of their children.