6/05/00 6:30 p.m.
Two Cheers for Parental Rights
What should conservatives think of today’s Troxel decision from the Supreme Court?

By David Wagner, teacher of constitutional law at Regent University School of Law

he Supreme Court struck a blow for parental rights today — but in a way that casts doubt on just how secure the idea is that parental rights are protected by the Constitution.

The case, Troxel v. Granville, pitted the desire of grandparents to visit grandchildren against the opposition of the parent to such visitation. The parent won.

Parents make key decisions about their children’s upbringing every day. If you have strong views about parenting issues, then you are often going to believe that other people’s parenting decisions are wrong. But thinking other parents are wrong, even very wrong, is not an adequate legal basis for forcing those parents to do things your way.

There are a number of reasons for this. One is that authorizing the state to meddle wholesale in child-rearing decisions would exacerbate the culture wars. Another is that parental rights are deeply rooted in our legal traditions. Still another is a pair of oft-cited Supreme Court cases from the 1920s — Meyer v. Nebraska and Pierce v. Society of Sisters — that protect parental rights under the Due Process Clause of the 14th Amendment.

Troxel was a challenge to a Washington state statute that allowed family courts to assign visitation rights to absolutely anyone who petitioned for them (not only relatives). The parents’ opinion in the matter had the status of input, if even that.

The mother was Tommie Granville. The parents of her late boyfriend often visited the couple’s two children, Isabelle and Natalie Troxel; however, after the boyfriend’s suicide, Ms. Granville decided to restrict (though not eliminate) such visits. The grandparents sued, and won. Ms. Granville (now married to a man who has become the adoptive father of Isabelle and Natalie) appealed to the state supreme court, and persuaded it that the statute violated her federal constitutional rights as a parent.

In a plurality opinion written by Justice Sandra Day O’Connor, the U.S. Supreme Court today agreed. It concluded that the statute violated the Meyer-Pierce doctrine by failing to give the parents’ views on visitation “any presumption of validity or any weight whatsoever.”

This is good news for parental-rights conservatives. But the various opinions in the Troxel case contain some ominous notes for the future of parental rights.

For one thing, Troxel reminds us that Meyer and Pierce are not above criticism. They partake of “substantive due process,” in which the Court takes on itself the task or discerning which rights are so “fundamental” that the Constitution simply must protect them — even if the written text of the Constitution says nothing about them (as is, regrettably, the case with parental rights). Conservatives have inveighed against substantive due process for years.

It is easy enough to blast substantive due process when it leads to “rights” such as abortion. But when the claimed right is nothing more scandalous than the right of parents to direct the upbringing of their children, surely no one would insist that the mere silence of the Constitution on such a right is any reason why the Supreme Court should not protect it against overweening state legislatures?

Well, someone would so insist — and did: Justice Antonin Scalia, in a dissenting opinion in Troxel. He affirms that parental rights are part of the “unalienable rights” mentioned in the Declaration of Independence, and he adds that they are also among the rights “‘retained by the people’ which the Ninth Amendment says the Constitution’s enumeration of rights ‘shall not be construed to deny or disparage.’ ” But, he insists, it does not follow that the Declaration, the Ninth Amendment, or anything else confers on judges the power to identify such rights. “I do not believe,” he writes, “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.” (Emphasis in original.)

Most conservatives will (and all legal observers should) admire Scalia’s adherence to principle. He is plainly fulfilling an unpleasant yet urgently felt duty in declaring that he has no right to use his judicial office to protect parental rights. But is that the last word on the issue for conservatives?

Turn with me to one of the concurrences in Troxel, that of Justice Clarence Thomas. First, he hints that he may agree with Scalia that Meyer and Pierce should be overruled, but, like him, is content to leave that issue to another day, mainly because neither party in this case raised it. But then comes a footnote: “This case also does not involve,” writes Thomas, “a challenge based on the Privileges and Immunities Clause and thus does not present an opportunity to reevaluate the meaning of that clause.”

The Privileges and Immunities Clause is the sleeping giant of constitutional law. Found both in Article IV, Section 2, and in the Fourteenth Amendment, this clause was interpreted for decades as meaning virtually nothing — but just last year the Court designated it as the textual home of the “right to travel.” In his Troxel concurrence, Justice Thomas may have either of two opposite intentions: to see that the revival of Privileges and Immunities jurisprudence goes no further than the “right to travel” — or (one may hope) to suggest that the Privileges and Immunities Clause would be a more suitable textual home than Due Process for parental rights, and for judicial power to protect them.

After Troxel, parents’ rights survive in constitutional law, for now. But for conservatives who support them, a dreadful paradox is at work: the most conservative Justices are precisely the ones who need convincing. For conservative constitutionalists, the agenda is twofold: to seek better defenses of Meyer and Pierce than they have yet enjoyed — and to prepare American parents for political action in a Meyer- and Pierce-less world.