Parental Rights Bill (H113)

The right of parents to raise and educate their children without governmental interference has been honored by the Supreme Court for nearly a century. But now, unexpectedly, that court has weakened its traditional respect for that right.  As a result, at least 24 state and federal courts have already declared parental rights dead. 

A tsunami of government edicts has been unleashed. Bureaucrats have begun trumping parental decisions on education, medical decisions, limitations on internet and library usage, and a host of other issues.  House Bill 113 would reverse that trend and restore the protections that parents and families have traditionally enjoyed here in Idaho. 

Q & A on Idaho’s Parental Rights Bill (H113)

What does the bill say?

The heart of H113 simply states: Parents and legal guardians who have legal custody of minor children have a fundamental right to make decisions concerning the care, custody, education and control of their children.

Does the bill have constitutional roots?

On the next page is an extended quote from the U.S. Supreme Court’s 2000 decision in Troxel v. Granville.  That decision describes the 90-year history of the fundamental constitutional right of parents to direct the care, custody, education, and control of their minor children.  This is not a new concept.  It has been the law of the land for 90 years.  The portions of that decision which reflect the principles and terminology included in H113 are bolded and underlined.

Is there a need for this statute?

The most recent Supreme Court decision on this subject displayed an unexpected weakening of the traditional rules.  Although the court ruled in favor of the rights of the parent in that case, it avoided reiterating the traditional rule that the government may only intrude upon parental rights (1) when doing so is motivated by a compelling state interest, and (2) when it does so in the least intrusive manner possible.  In the wake of that ruling, at least 24 state courts have now noted that omission, and rendered decisions that disavow this traditional two-pronged “strict scrutiny.”

Might the bill have unintended consequences?

The risk of unintended consequences actually lies with not passing this bill.  From the many decades during which parental rights were routinely recognized by the Supreme Court, we have watched those rights applied in a broad array of cases.  What has not been seen during all of that time is:

  • A single case in which child abuse or child neglect was regarded as falling within a parent’s constitutional right.

  • Public schools court-ordered to teach anything based upon a parent’s rights. Generally, parents retain the right to opt their children out of objectionable public school classes or activities, but they do not have the right to force public schools to teach in accord with the parents’ wishes.

This history exhibits a healthy balance between the parents’ rights and the state’s interests.  That balance will be continued under this bill.  Suggestions to the contrary are clearly fear-mongering.

Is this bill ambiguous?

Now that federal and state courts have applied these principles for 90 years, they are actually quite well-defined.  As with other constitutional rights, parental rights have become more and more clearly defined as the number of cases applying the principles has grown.  Again, the abandonment of these long-standing principles is what will potentially create an ambiguous uncertainty.

If the U.S. Supreme Court should actually complete the feared demotion of parental rights in the years ahead, this bill will ensure that parents and guardians will continue to have the legal right to direct the upbringing and education of their children here in Idaho.

What is a fundamental right?

"Fundamental" rights are those which the government can restrict but only if the government has a compelling interest, and the least restrictive means is used to accomplish that compelling interest.  For example, laws requiring compulsory education and laws forbidding child abuse have uniformly been upheld because the state has a compelling interest in kids being educated and not abused, and there is no less restrictive way to accomplish it. But a Michigan law requiring homeschool parents to be certified teachers was struck down on the ground that the state could have achieved its goal of educating children in a less restrictive manner.

What is an absolute right?

"Absolute" rights are those which the government cannot restrict under any circumstances—like the right to believe in God as your conscience dictates.

What is an ordinary right?

"Ordinary" rights can be restricted if the government has a "rational" reason.  As a practical matter, this means about any reason. It’s very difficult to prove there is no "rational" reason behind a government restriction. Individual liberties almost always lose. The right to practice a profession, the right to receive welfare payments, the right to run a business, etc., are all ordinary rights upon which the government can impose almost any restriction it wants.

Recent Supreme Court Case

U. S. Supreme Court Decision in
Troxel v. Granville  (530 U.S. 57 [2000])

Facts of the Case:  When the biological mother of two children limited visitation by the children’s paternal grandparents, the grandparents sued to overturn the mother’s limitation under a Washington state visitation statute.  The Supreme Court confirmed that Washington statute was unconstitutional as it interfered with the mother’s fundamental constitutional right to control her own children.

From the Supreme Court’s Case Decision (with bolding and underlining inserted for emphasis and internal citations removed for ease of reading): 

“The Fourteenth Amendment provides that no State shall ‘deprive any person of life, liberty, or property, without due process of law.’ We have long recognized that the Amendment's Due Process Clause, like its Fifth Amendment counterpart, ‘guarantees more than fair process.’  The Clause also includes a substantive component that ‘provides heightened protection against government interference with certain fundamental rights and liberty interests.’

        “The liberty interest at issue in this case—the interest of parents in the care, custody, and control of their children — is perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago, in Meyer v. Nebraska, we held that the ‘liberty’ protected by the Due Process Clause includes the right of parents to ‘establish a home and bring up children’ and ‘to control the education of their own.’ Two years later, in Pierce v. Society of Sisters, we again held that the ‘liberty of parents and guardians’ includes the right ‘to direct the upbringing and education of children under their control. We explained in Pierce that "[t]he 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.’  We returned to the subject in Prince v. Massachusetts, and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. ‘It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder’.”

        “In subsequent cases also, we have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children. See . . . Wisconsin v. Yoder (‘The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition’). . . In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” 

(Pages 65 & 66 of plurality decision)