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15. Does Section Three Subject Parental Rights to Judicial Whim?

How does the Parental Rights Amendment keep the government from stepping in and taking our children whenever a judge just decides his opinion is better than that of the parents? Is Section Three really necessary? Won’t judges use it against good parents?

Parental Rights are fundamental rights, but they are not absolute. Section Three carefully defines the balance between the two, in words taken from existing Supreme Court decisions.

“…demonstrating that its governmental interest as applied to the person…”

To claim that no “governmental interest” exists at all is to claim absolute parental rights. This is not the aim of the Parental Rights Amendment.

However, because fundamental rights are so important to our freedom as Americans, the government must meet a heightened burden of proof in order to restrict those rights. In early 2006, the U.S. Supreme Court used this very language in a religious liberty case. According to the Court, the government must "demonstrate that the compelling interest test is satisfied through application of the challenged law 'to the person'--the particular claimant whose [fundamental right] is being substantially burdened." Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430-431 (2006). The text of this proposed parental rights amendment merely takes this well-established principle of law, and applies it explicitly to the fundamental right of parents..

“…of the highest order and not otherwise served…”

In 1972, the U.S. Supreme Court held that in order for the state of Wisconsin to override the rights of Amish parents, the government had to show that it had a compelling interest in requiring students to stay in school until age 16. Speaking of the right of the parents, the Court said that "the essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion." Wisconsin v. Yoder, 406 U.S. 205, 215 (1972) (emphasis added).

The Court has applied the same standard in other cases, including Widmar v. Vincent, 245 U.S. 263, 268-270 (1982) (protecting the right to free speech), Aderand v. Pena, 515 U.S. 200, 227 (1995) (defending freedom from racial discrimination), and Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 546 (1993) (involving freedom from invidious attacks upon one’s religion). At least 120 lower rulings have used the same language.

As a result of these precedents, this language sets parental rights on the same legal level with other fundamental rights – including the freedom of speech. It also sets a very high, clearly-defined standard that must be met before government can interfere with parental rights. Namely, the law as applied to that case must advance interests of the highest order, and there must be no other, less-obtrusive way to achieve the same ends. Compulsory education laws were in question in Wisconsin v. Yoder, and they were found not to meet the required highest order interest standard.

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