Michael Farris, the constitutional lawyer who would ultimately author the Parental Rights Amendment, was a key author and proponent of the Religious Freedoms Restoration Act (RFRA), which was passed in 1993. This did not pertain to parental rights as such, but parental rights in the area of religious freedom were included in the legislation.
In 1996, Farris and his associates introduced the Parental Rights and Responsibilities Act (PRRA), which failed to make its way out of committee. Those who know Mike Farris and Chris Klicka (who championed the PRRA on behalf of Home School Legal Defense Association) know they would not have given up easily. Instead, they intended to introduce it again in 1998 (the next Congress).
In 1997, however, the Supreme Court issued its decision in Boerne v. Flores, which threw out significant portions of 1993's RFRA as unconstitutional. Given that those things declared unconstitutional about the RFRA would likely be seen as problems in the PRRA as well, it became clear that the only way to protect traditional parental rights from the shifting ideologies of the Supreme Court would be an amendment to the Constitution. When the Supreme Court issued its Troxel v. Granville decision in 2000, the need became undeniable. The only way to make constitutional something the Supreme Court has found no defense for in the Constitution (as per Troxel) is to add that protection by way of an amendment.
In 2006, the Supreme Court reversed a lot of its 1997 Boerne decision in Gonzalez v. O Centro Espirita Beneficente Uniao do Vegetal, restoring viability to much of the RFRA. By then, however, parental rights themselves had already been so severely undermined by Troxel as to render a solution beyond the scope of federal legislation alone.
Thus, the reasons to pursue an amendment rather than federal legislation include:
- Only an amendment will override international law, including treaties for all purposes.
- An amendment imposes constitutional rule without including any transfer of authority from the states to the federal government. A statute necessarily involves a transfer of authority to the federal government.
- Because of the Boerne decision, civil rights statutes can only enforce existing Supreme Court decisions on the topic at hand – in this case, parental rights. The most recent decision sets the legal standard that the statute must apply. The Troxell case is part of the problem, not the solution. We would not want a federal statute that applies the standard of Troxell, which holds that each judge can decide for himself what constitutes a violation of parental rights, with no objective criteria.