It fails to do so. In fact, it does just the opposite. It preserves the state’s right to intervene in that relationship at will, and makes that right legally binding.
The following letter explains how:
As a homeschooling mom, a local farm activist, and co-founder of the Lexington Tea Party, I am a huge fan of the HSLDF. I am also the Weston A. Price chapter leader (westonaprice.org) for the Bluegrass area and a member of and fundraiser for the Farm to Consumer Legal Defense Fund, which was itself inspired by the HSLDF.
I include my introduction because I want you to know that I firmly support the board’s work before I explain why I believe the board’s promotion of the “Parental Rights Amendment” is a huge mistake.
The mistake is in the wording of Section 3 of the proposed amendment. It features a loophole though which the forces of the state will march ten abreast.
Section 3 currently reads: “Neither the United States nor any State shall infringe these rights without demonstrating that its governmental interest as applied to the person is of the highest order and not otherwise served.” (Emphasis added.)
The problem is that “governmental interest” will be determined exclusively by government agents, and ultimately by government lawyers, whether they wear suits or robes. Based on both recent history and current events, I believe we can safely predict that state agents will determine that the state’s interest in our children is of “the highest order.”
I would support the amendment if the sentence in Section 3 ended after the word “rights.” As it stands, it is an open invitation to the state to overrule it. The ambiguous qualifying phrase acknowledges that a parent’s interest in his children is subservient to that of the state. Once we’ve agreed to that, the courts will not quibble with us about it.
It is naive to think that legislators, judges, and bureaucrats – all of whom have decided that the state’s interest in warrantless searches, civil forfeiture, compelled submission of financial information, institutionalized education, forced medical treatments and “free speech zones” is of the highest order — are going to think that their interest in raising our children is anything less.
I urge the board to reconsider this flawed amendment. It begs the state to decide what its interest is in our children, then gives them the means to claim it exceeds our own.
The case of Sarah Hershberger, the Amish girl with leukemia who was ordered by a court to undergo chemotherapy, is still fresh in our minds. The court actually said that “the child’s parents’ beliefs can’t outweigh the state’s right to protect the girl.”
Sadly, Sarah’s is not an isolated case. A quick internet search will reveal too many chilling examples of how often and uncompromisingly the state wrests control of a child’s “well-being” from the parents.
There are other problems with the amendment — like is it needed at all? This one phrase makes it completely unacceptable to this parent.
UPDATE: I just received this reply from the board. I will read up and research tomorrow but such a quick response is heartening. Please read and give your feedback in the comments — thank you!
Our FAQs section has an explanation regarding the language with which you are concerned, located at the following link:
Basically, the language which you fear is ambiguous is actually a “term of art,” originally written by the Supreme Court in Wisconsin v. Yoder (1972). Its meaning has been firmly established in the courts for more than 40 years, making it virtually impossible for future lawyers, judges, or bureaucrats to change its interpretation. While parental rights are not absolute – a parent cannot offer their child as a child sacrifice, for instance – they are fundamental.
Generally, fundamental rights receive the highest legal standard of review. Called the “strict scrutiny test,” this standard is alternately defined as “a compelling governmental interest met by the least restrictive means,” or as a “governmental interest of the highest order not otherwise served.” The latter definition has been used consistently in more than 120 federal cases over 40 years, so that its meaning and intent cannot reasonably be questioned.
Sadly, this standard was left out of the most recent major parental rights test before the US Supreme Court. In Troxel v. Granville (2000), while most of the justices determined that parental rights are a fundamental liberty, only Justice Thomas held with the previously universal tradition that a fundamental liberty demands the strict scrutiny standard. We have included that standard in our language to make certain it is applied in parental rights cases moving forward. (In the Troxel case, the plurality decision held that parents’ decisions were entitled to “some special weight” in a court’s consideration – a vague and meaningless standard that would protect no one.)
When I first learned of the Parental Rights Amendment, I shared your concerns. But over the five years I have been here I have read many of the cases using this language, and I am confident in the meaning and application of this phrase. I hope this information will help to allay your fears as well.
I do, however, welcome you to contact me again with any further questions.
Dir. of Communications & Research