Protecting Parental Rights Against Government Intrusion

by Sarah Feinberg

Parental rights may seem like a no-brainer, but they are under attack from both domestic courts and international intrusion.   A California court recently ruled against the rights of parents to home-educate their children, and the United Nations is pressuring the U.S. to ratify a treaty that puts a child’s rights above his or her parents’ rights.  While attacks rage against the fundamental rights of parents to raise their children, it has become clear that the Constitution must protect this right unambiguously.

Rep. Pete Hoekstra (R-Michigan) introduced H.J.Res.42, a proposed amendment to the Constitution relating to parents rights.  Rep. Hoekstra’s office has succeeded in getting 70 members of the House to co-sponsor this bill.  There are three parts to this amendment. 

The Rights of Parents

The first section deals with a parent’s fundamental right to “direct the upbringing and education of their children.”  This was challenged in the case of In re Rachel L, and the court decided that parents did not have a right to homeschool their children: “California courts have held that under provisions in the Education Code, parents do not have a constitutional right to school their children in their own home.”[1]  The California Supreme Court eventually reversed this decision.  Unfortunately, the California Court of Appeals, which originally ruled against parents’ constitutional rights, is not alone in their opinion.   Justice Antonin Scalia, a supporter of parental rights, wrote a dissenting opinion in the case of Troxel v. Granville.  This case upheld the rights of parents in making decisions about the upbringing of their children.  In his dissent, Justice Scalia stated, “I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right.”[2]

Protection from the State

The second section of the amendment states that “Neither the United States nor any State shall infringe upon this right. …”  Justice Scalia did not support the decision in Troxel v. Granville because he did not believe parental rights were enumerated within the Constitution.  He did believe, however, that representatives in a legislative chamber could rightly argue that the state, “has no power to interfere with parents’ authority over the rearing of their children.”[3]   That is exactly what the proposed amendment does.  It allows these rights to be argued by the legislative chamber (Congress) and clarified in the Constitution in order to be used in future legal cases.

The second section also states that the government may not infringe on parents’ rights, “without demonstrating that its governmental interest as applied to the person is of the highest order and not otherwise served.”  This prevents the amendment from being interpreted to protect abusive or negligent parents.  The government may only interfere in parenting if the reason is of higher importance, such as the life of the child.  Now parents will have not only a fundamental right, but also an enumerated one.

International Protections

The third section of the Amendment states, “No treaty may be adopted nor shall any source of international law be employed to supersede, modify, interpret, or apply to the rights guaranteed by this article.”  This is an extremely important section when considering the threat that international treaties like the UN Convention on the Rights of the Child (CRC) pose today.  Senator Barbara Boxer (D-California), Chair of the Subcommittee on International Operations and Organizations, has voiced her plans to bring this treaty up for a vote this year.  United Nations treaties, if adopted by two-thirds of the Senate, trump United States law and therefore threaten the rights of parents.  Rep. Hoekstra’s amendment is necessary to preempt intervention by unelected bodies, such as the Committee on the Rights of the Child, mandating what a child is entitled to, and how American parents should raise their children.

We must protect families by defending current law, by passing stronger legislation like this Amendment, and by rejecting international treaties which threaten our way of life.  Tell your representatives to vote in favor of the Parental Rights Amendment.  Tell your senators to vote against any treaties that give the United Nations power over our families or our nation.

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