The Volokh Conspiracy

What happens when divorced parents with joint legal custody disagree about whether their child should be given the routine childhood immunizations? That’s the issue in Grzyb v. Grzyb (Va. Cir. Ct.), decided in mid-2009 but just uploaded to Westlaw a day or two ago.

The Grzybs were the divorced parents of a 3-year-old girl, with “joint legal custody of the child, which implicitly included joint decision-making regarding the child’s medical and health care.” The father wanted the daughter immunized, but the mother had a religious objection to the immunization:

Mrs. Grzyb ... testified that she first formed a religious objection to vaccinations when she was pregnant with the child, that she “prayed about it a lot,” and felt “led by the Holy Spirit” to the conclusion that the child should not receive routine immunizations. She testified that “I never felt so strong about anything outside of faith as I do about vaccination.” ... Ms. Grzyb’s pastor, the Reverend Scott Mauer, ... [testified] that it was not a tenet of his religion that children remain unvaccinated. Rather, he testified that “this falls into an area that we would consider to be what the Bible often refers to as disputable matters, which are areas that the Bible does not necessarily address directly.” He continues:

in those cases, historically the position that the Baptist Church has taken is that a person should apply the best understandings of our truth of the scripture and also the sensitivities believing as the Holy Spirit and come to a conviction about it. And that furthermore if they do come to a conviction based upon those things, that they are then to be obedient to that conviction because the Bible is clear that, if a person has come to a conviction that they do believe is from God, that to the best of their ability that they believe that in good faith before the Lord, that if they do not then pursue that directive of that decision that they are in sin.

Now if this were just a matter of whether two parents acting together (or a sole custodial parent) were exempt from the Virginia immunization requirement, Mrs. Grzyb’s religious objection would give her a statutory immunity (see subsec. D(1)). But in this case, the question was what should be done to the child when the two parents who share legal custody disagree. The common answer is such situations is to conclude that joint legal custody isn’t working out on this question — since joint custody presupposes an ability to agree — and one parent should be given sole custody as to medical matters. But which parent?

Here’s the court’s analysis: The court concludes that (1) getting immunized would indeed be in the child’s best interests, given the medical expert testimony that, “the risk of ‘serious complications’ [from vaccines] was ‘very low’ and that [the child] is ‘at greater risk of the diseases that the vaccines protect against, absolutely.’” But the court also observed that (2) the mother was more actively involved in the child’s medical care:

Continue reading ‘Children’s Immunizations, and Disputes Between Divorced Parents’ »

In re D.S. (Ore. Sup. Ct. Feb. 16, 2012) is an interesting — and, as usual, sad — parental rights case. Father had four children living with him and his girlfriend: his daughter, D (age 14), his son, R (age 12, D’s full brother), his girlfriend’s son, G (age 5 or 6), and his and his girlfriend’s daughter, S (age less than 2, D’s half-sister). D’s mother is in prison.

D accused father of physically abusing her, and is now in foster care. The father says “D was lying about the physical abuse and was an ‘out of control’ teenager.” The father is awaiting trial on the physical abuse charges.

D wants to visit with her siblings, and the trial court ordered that the father not interfere with that, at least as to R and G (but apparently not the very young S, though that’s unclear). The father objected, claiming this violates his parental rights with regard to R and G.

The Oregon Supreme Court agreed that the father’s parental rights were in play, and remanded for further development of the facts. Exactly what showing the court would find adequate for allowing a restriction of the father’s rights is not clear. But the court did conclude that the trial court cannot order sibling-sibling visitation as a matter of course, and had to consider the father’s rights to control access to those siblings who are still in his custody.

Law professor David Pimentel has an interesting article detailing the ways in which law and social norms have evolved to the point where perfectly ordinary parenting practices can land you in prison or at least subject you to an expensive lawsuit or prolonged official harrasment [HT: Bryan Caplan and Katherine Mangu-Ward]. As Pimentel points out, this is often a result of vague statutes and regulations that are interpreted by courts and administrative agencies to require extremely overprotective parenting. Pimentel notes that many such overprotective practices are influenced by media sensationalism and have little or no support in the actual data on child safety and some might even harm children more than they benefit them.

I will leave the specific legal issues to those more expert in these matters than I am, such as co-blogger Eugene Volokh. But one example from the text was particularly striking to me, based on personal experience:

Even one generation ago, the norms were different for determining the age at which a child no longer needed a babysitter. The expected minimum age for babysitters has gone up as well, although in the few states that have legislated specific ages, the thresholds vary widely. In Illinois, it is illegal to leave a child under 14 unsupervised for an “unreasonable period of time”; in Maryland, in contrast, a 13-year-old is considered old enough not only to care for himself, but to babysit infants. The days when 11- and 12-year-old neighborhood kids were considered competent babysitters appear to be long gone. This development is all the more marked considering that mobile phones have created a virtually instant line of communication between the sitter and the parents, something unheard of in earlier eras, when younger sitters were considered acceptable.

I worked as a babysitter when I was twelve, back in the barbaric Dark Ages of the mid-1980s. And this was not considered unusual at the time. When I was 14, I was once hired to babysit a neighborhood family’s three kids for several days in a row (the parents came home in the evening, but I was the only one with the kids from about 9 to 5). You can argue about whether my neighbors should have hired an adult instead. But it certainly should not be against the law to hire a sitter in their early teens, nor is there any evidence that this is unusually dangerous or somehow causes permanent harm to the kids.

On the other hand, anecdotal evidence suggests that the growing legal and social bias against younger babysitters has helped drive babysitter pay to levels unheard of in my time. I am almost tempted to get back into the babysitting business myself to take advantage of it!

As Pimentel describes in the article, only a few states have laws that specifically ban early-teen sitters. But the practice might potentially lead to charges under the sorts of vaguely worded general child welfare statutes that he discusses at length in his article. The article describe a variety of dubious prosecutions on other issues that have resulted from such laws.

So held the Hawaii Supreme Court, in Hamilton ex rel. Lethem v. Lethem (Haw. Feb. 7, 2012), interpreting the Hawaii Constitution, though in reasoning that could be seen as applicable to the federal Constitution and to other state constitutions. And the court concluded that even a noncustodial parent retains this right “with respect to that child’s conduct during the visitation period.”

Based on this constitutional right, the court concluded that, to warrant the issuance of a domestic restraining order based on alleged child abuse, there must be (1) a finding that “the parent’s discipline is [not] reasonably related to the purpose of safeguarding or promoting the welfare of the minor,” (2) taking into account “factors such as [a] the nature of the misbehavior, [b] the child’s age and size, and [c] the nature and propriety of the force used.”

The court left it for a lower court to apply this standard to the facts of the case. Here, though, are the facts as alleged by the child (a 15-year-old girl), which led to the issuance of a restraining order against the father:

Continue reading ‘Constitutional Right to Moderately Corporally Punish One’s Child’ »

The case is In the Matter of Q (A Child) (Eng. & Wales Ct. App. Dec. 21, 2011); The Independent (UK) reports:

A Muslim man who had a baby with an unmarried woman has been told that his daughter must remain with an adopted family because there is too great a risk that his love child could become the victim of a so-called “honour killing”.

Three senior judges today ruled that a “desire to preserve the family’s honour” among the mother’s relatives meant placing the child with the father was simply too dangerous.... The father had tried to challenge that decision but lost his case....

The child, who is called “baby Q” in court documents, was conceived towards the end of 2009. Her father was already married to another woman who lived outside the country at the time. The man began an affair with a Muslim woman from within his own community and the pregnancy was unplanned. When the mother -– referred to as “M” in court documents — discovered she was pregnant she became “terrified of her family’s reaction”.... The court heard how police enquiries established that had M’s father found out about the pregnancy “he would consider himself honour bound to kill the child”, his daughter and even his wife....

Here’s an excerpt from the opinion:

The judge’s findings about the risk of physical harm to the child and members of her family are very important. It is a topic to which she returned regularly during the judgment. She found that there were no physical risks if Q were to be adopted by Mr and Mrs A; in contrast, although she could not quantify it, she found that there would be “a very significant risk” if Q were to live with F and W. She did not consider that the risk was removed if, in fact, GF already knew of the baby as she acknowledged may be the case. She observed that whilst there was no baby evident, there was no proof of the relationship between M and F but “[i]f Q is placed with her father then two and two might very easily be put together” because Q is quite obviously not W’s child. If GF’s community were thus to find out about the relationship between M and F, “it would be a matter of intense almost unimaginable shame to him and his family”. It was plainly the judge’s view that this might provoke action to preserve the family’s honour and she thought that “a particularly high degree of risk from relatives or members of M’s community would arise immediately after placement”. She was mindful of the seriousness of the physical harm involved and observed that:

“the magnitude of the consequences here is such that even a small degree of risk must be taken into account. In my judgment here there is such a risk and quite possibly a high one.”

... This is a case which presented the judge with a most difficult decision. Q, relinquished at birth by her mother, M, had for some time been placed with Mr and Mrs A who are loving and devoted adopters and to whom she had formed a deep attachment. On the other hand, Q’s father, F, married to another woman and with a child of that marriage, sought to have Q united with him in his care. In addressing the question whether to make an adoption order it is clear to us that the judge was guided by the fundamental consideration whether Q’s welfare throughout her life required the making of an adoption order. In adopting this approach we believe the judge cannot be faulted. She considered whether adoption was demanded rather than being merely reasonable or desirable. In our judgment this approach took full and proper account of any possible right of F or Q to family or private life.

The judge proceeded to assess whether Q’s welfare required the making of an adoption order having regard to all the considerations set out in section 1 of the 2002 Act. In the particular circumstances of this case, the judge rightly regarded the risk of physical harm to Q and M as being of major importance. Here the evidence was, in our judgment, compelling. Q was conceived in a relationship which was unacceptable to M’s traditional Muslim family and conducted in secrecy. When M realised she might be pregnant she ran away from home for fear of the reaction of her family and, in particular, her father, GF. Shortly after her pregnancy was confirmed, M took steps to have her baby adopted at birth. Although she returned to her home, she concealed her advancing pregnancy by wearing loose clothes and travelling to the other side of her town for her antenatal care. As soon as Q was born, she was relinquished for adoption because M genuinely feared for Q’s safety should GF become aware of or be forced to acknowledge her existence. M’s evidence, supported as it was by her actions and the evidence of F and an experienced police officer, drove the judge to conclude that refusal of the order would carry with it a significant risk of physical harm. In our judgment this conclusion cannot be criticised....

Thanks to Ken Braithwaite for the pointer.

The case is In re Adoption of J.P. (Ark. Dec. 15, 2011), and it involves both a conflict between a father and a deceased mother’s parents (and grandparent), and a challenge to the adoption by the father’s new wife (the child’s godmother, as it happens). The Arkansas Supreme Court indirectly relies on the father’s constitutional parental rights to overturn a lower court award of visitation to the grandparents and great-grandmother, who had been closely involved with the child’s upbringing but who were now less involved in the child’s life because of a rift with the father. The court concludes that the father’s rights aren’t absolute, and that a sufficient showing of harm to the child could justify granting visitation rights to the grandparents and great-grandmother, but that no such showing was made here.

But the court refuses to allow the new wife (and godmother) to adopt the child, for reasons related to the rift with the grandparents and great-grandmother:

Before an adoption petition can be granted, the circuit court must find from clear and convincing evidence that the adoption is in the best interest of the child.... Here, the circuit court found, in pertinent part:

Although Derek and Andrea testified that it was coincidence, the restriction of [Doris]‘s and [Bertie]‘s contact with [J.P.] began when Derek and Andrea started dating. From an observation of Andrea as a witness, the Court finds Andrea’s attitude toward [J.P.] to be possessive and exclusive of the maternal family. The Court finds that an adoption of [J.P.] by Andrea would not be conducive to fostering a relationship between [J.P.] and his maternal family. A hindrance or loss of a relationship with his maternal family would not be in the best interest of [J.P.]

Considering all the best interest factors, the Court finds that the adoption of [J.P.] by Andrea is not currently in the best interest of [J.P.] The Petition for Adoption is denied.

It is clear from Andrea’s testimony that tension existed between her and J.P.’s maternal family. It is that tension that troubled the circuit court and served as the court’s basis for finding that the adoption was not currently in J.P.’s best interest; we do not disagree. That is not to say that it would not be in his best interest at some point in the future. However, giving due regard to the opportunity and superior position of the circuit court to judge the witnesses before it, we cannot say the circuit court’s finding that adoption was not currently in J.P.’s best interest was clearly against the preponderance of the evidence. For this reason, we affirm the circuit court’s denial of the petition for adoption.

So the father (1) has a presumptive constitutional right to limit visitation by other family members — but (2) he does not have a right to give his new wife the legal status of parent, and (3) the court may indeed deny the adoption partly based on the father’s exercise (see item 1) of his constitutional right to limit contact between the child and the other family members.

To be sure, there is no constitutional right to adopt a child, whether one is a stepparent or not. But in many (though not all) situations, the government is generally not allowed to condition benefits (such as the ability to adopt) on one’s exercise of constitutional rights: I take it, for instance, that the government generally may not deny prospective parents the right to adopt a child on the grounds of the parents’ political views. Likewise, two courts have generally held that the government may not deny prospective parents the right to adopt or to be foster parents based on their exercise of a constitutional right to engage in same-sex sexual relations, see here and here. If a parent has a constitutional right to limit visitation by other family members, is it proper to use the exercise of that constitutional right to deny him and his spouse the ability to have the spouse adopt the child? In any case, this struck me as an interesting question, and an interesting decision that was worth blogging about.

That’s a question that some readers asked on another thread, so I thought I’d pass along these excerpts from Troxel v. Granville (2000) on the subject. First, here’s an excerpt from Justice O’Connor’s plurality opinion:

The Fourteenth Amendment provides that no State shall “deprive any person of life, liberty, or property, without due process of law.” We have long recognized that the Amendment’s Due Process Clause, like its Fifth Amendment counterpart, “guarantees more than fair process.” The Clause also includes a substantive component that “provides heightened protection against government interference with certain fundamental rights and liberty interests.”

The liberty interest at issue in this case — the interest of parents in the care, custody, and control of their children — is perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago, in Meyer v. Nebraska, 262 U. S. 390, 399, 401 (1923), we held that the “liberty” protected by the Due Process Clause includes the right of parents to “establish a home and bring up children” and “to control the education of their own.” Two years later, in Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925), we again held that the “liberty of parents and guardians” includes the right “to direct the upbringing and education of children under their control.” We explained in Pierce that “[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” Id., at 535. We returned to the subject in Prince v. Massachusetts, 321 U. S. 158 (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Id., at 166.

In subsequent cases also, we have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children. See, e. g., Stanley v. Illinois, 405 U. S. 645, 651 (1972) (“It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children ‘come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements’” (citation omitted)); Wisconsin v. Yoder, 406 U. S. 205, 232 (1972) (“The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition”); Quilloin v. Walcott, 434 U. S. 246, 255 (1978) (“We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected”); Parham v. J. R., 442 U. S. 584, 602 (1979) (“Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course”); Santosky v. Kramer, 455 U. S. 745, 753 (1982) (discussing “[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child”); Glucksberg, supra, at 720 (“In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the ‘liberty’ specially protected by the Due Process Clause includes the righ[t] ... to direct the education and upbringing of one’s children” (citing Meyer and Pierce )). In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.

Second, here’s most of Justice Scalia’s dissent:

In my view, a right of parents to direct the upbringing of their children is among the “unalienable Rights” with which the Declaration of Independence proclaims “all men ... are endowed by their Creator.” And in my view that right is also among the “othe[r] [rights] retained by the people” which the Ninth Amendment says the Constitution’s enumeration of rights “shall not be construed to deny or disparage.” The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; and the Constitution’s refusal to “deny or disparage” other rights is far removed from affirming any one of them, and even further removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people. Consequently, while I would think it entirely compatible with the commitment to representative democracy set forth in the founding documents to argue, in legislative chambers or in electoral campaigns, that the State has no power to interfere with parents’ authority over the rearing of their children, 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.

Only three holdings of this Court rest in whole or in part upon a substantive constitutional right of parents to direct the upbringing of their children — two of them from an era rich in substantive due process holdings that have since been repudiated. See Meyer v. Nebraska, 262 U. S. 390, 399, 401 (1923); Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925); Wisconsin v. Yoder, 406 U. S. 205, 232-233 (1972). The sheer diversity of today’s opinions persuades me that the theory of unenumerated parental rights underlying these three cases has small claim to stare decisis protection. A legal principle that can be thought to produce such diverse outcomes in the relatively simple case before us here is not a legal principle that has induced substantial reliance. While I would not now overrule those earlier cases (that has not been urged), neither would I extend the theory upon which they rested to this new context.

Judicial vindication of “parental rights” under a Constitution that does not even mention them requires ... not only a judicially crafted definition of parents, but also — unless, as no one believes, the parental rights are to be absolute — judicially approved assessments of “harm to the child” and judicially defined gradations of other persons (grandparents, extended family, adoptive family in an adoption later found to be invalid, long-term guardians, etc.) who may have some claim against the wishes of the parents. If we embrace this unenumerated right, I think it obvious — whether we affirm or reverse the judgment here, or remand as Justice Stevens or Justice Kennedy would do — that we will be ushering in a new regime of judicially prescribed, and federally prescribed, family law. I have no reason to believe that federal judges will be better at this than state legislatures; and state legislatures have the great advantages of doing harm in a more circumscribed area, of being able to correct their mistakes in a flash, and of being removable by the people.

That seems to be Michigan law, at least according to Reardon v. Midland Community Schools (E.D. Mich. Sept. 2, 2011):

First, some brief attention needs to be given to Michigan law governing the obligation of parents to provide care and support to their children until the age of eighteen on the one hand, and yet, on the other hand, providing children the autonomous right to leave their parents’ home at the age of seventeen. See Mich. Comp. Laws §§ 712A.2(a)(2) & (3), 722.3, 722.151. Pursuant to Michigan Compiled Laws § 722.151, “[n]o person shall knowingly and wilfully [sic] aid or abet a child under the age of 17 years to violate an order of a juvenile court or knowingly and wilfully conceal or harbor juvenile runaways who have taken flight from the custody of the court, their parents or legal guardian.” Moreover, Michigan probate courts have jurisdiction to compel a juvenile who has deserted her home to return, at least until the juvenile reaches the age of seventeen. Mich. Comp. Laws § 712A.2(a)(2) & (3).

On the other hand, although Michigan law terminates the courts’ jurisdiction over runaway children at seventeen, it also provides that parents still have an obligation to support their children until they reach the age of eighteen. Under Michigan Compiled Laws § 722.3, “parents are jointly and severally obligated to support” their minor children, and Michigan courts may order parents to continue to support their children after they reach the age of majority. In Michigan, the age of majority is eighteen. Mich. Comp. Laws § 722.52. Absent an adoption, a biological parent’s obligation to support his or her children remains with the parent even if parental rights have been terminated. See Evink v. Evink, 542 N.W.2d 328, 329–30 (Mich. Ct. App. 1995). Whether these Michigan laws are well founded or not, they played a role in the events of this case.

I don’t know anything more about the subject, but I’d love to hear how this actually plays out in Michigan, and what other states have similar rules. Note also that it’s not clear from the opinion how the duty to support children interacts with the children’s right to leave home, but I assume that the legal duty is complied with if the parents offer the children room and board at the parental home; I take it that a child may not leave home and then demand, as a matter of law, that the parents pay for the child’s rent and groceries. This, though, is just my expectation — I don’t know exactly how Michigan law plays out in this respect.

UPDATE: A commenter points out that the 17-year-old girl in this case was “grant[ed] ... a guardian and conservator, as well as child support”; the parents appeal, and the case will be argued soon.

California Business & Professions Code 460(b) reserves the regulation of medical procedures to the state, and preempts contrary local rules:

No city, county, or city and county shall prohibit a healing arts professional licensed with the state under Division 2 (commencing with Section 500) from engaging in any act or performing any procedure that falls within the professionally recognized scope of practice of that licensee.

(1) This subdivision shall not be construed to prohibit the enforcement of a local ordinance in effect prior to January 1, 2010, related to any act or procedure that falls within the professionally recognized scope of practice of a healing arts professional licensed under Division 2 (commencing with Section 500).

(2) This subdivision shall not be construed to prevent a city, county, or city and county from adopting or enforcing any local ordinance governing zoning, business licensing, or reasonable health and safety requirements for establishments or businesses of a healing arts professional licensed under Division 2 (commencing with Section 500).

This appears to preempt the proposed San Francisco ban on circumcision of boys, at least as applied to procedures conducted by doctors (as opposed to mohels who don’t have a medical license). And a California judge’s tentative ruling released yesterday agreed with this argument (the final ruling is expected at some point after oral argument today):

The Court finds that the proposed ballot Initiative is expressly preempted by California Business and Professions §460(b). The evidence presented is overwhelmingly persuasive that circumcision is a widely practiced medical procedure. California Business and Professions Code §460 (b) applies to medical services provided by a wide range of health care professionals. The statute speaks directly to the issue of local regulation of medical procedures and leaves no room for localities to regulate in this area. In fact, the legislative history of §460(b) confirms that the legislature intended to prevent cities and counties from regulating medical services which is a matter statewide concern. Because the proposed ballot initiative attempts to regulate a medical procedure, the proposed ordinance is expressly preempted. Moreover, it serves no legitimate purpose to allow a measure whose invalidity can be determined as a matter of law to remain on the ballot after such a ruling has been made. City of San Diego v. Dunkl, (2001) 86 Cal.App.4th 384, 389 Accordingly, the Court issues a Writ of Mandate Ordering the Director of Elections for the City and County of San Francisco to remove the measure from the ballot in its entirety.

Why didn’t the court simply hold that the ban couldn’t be applied to doctors, but could be applied to others (such as mohels)? The opinion doesn’t say, but it could be that the judge concluded that if such an important part of the proposal is preempted, the proposal has to be entirely removed, perhaps because voters who vote for the proposal as written might well not have voted for a radically narrowed proposal. (That’s the “severability” question, which often arises both as to voter initiatives and legislatively enacted statutes; there’s a complex body of law related to that in each state.) Or perhaps the court was influenced by the argument that a circumcision restriction limited to non-medical-professions would in effect apply solely or almost solely to religious circumcisions, and would thus be impermissibly targeted against religion.

In any case, unless the decision is reversed on appeal (unlikely, I think), it now appears that there will be no legal battle about the difficult constitutional issues here, whether having to do with parental rights or federal and state religious freedom constitutional provisions. The dispute would have to await either a California statute or a state statute or local ordinance in some other state, and neither option seems terribly likely politically. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

Some comments on recent posts have suggested that libertarians should support a broad notion of parental rights. I haven’t written at any length on parental rights (except as to the special case parental free speech rights), and my thinking on this is far from definite; and of course I surely can’t speak for libertarians generally. But as somehow who is in many matters a presumptive libertarian, I thought I’d say a bit about this. Note that I’m speaking in this post about what I think the right rules ought to be, not about what we should understand our Constitution to say with regard to this question.

1. To begin with, though parental rights are seen by the law as part of parent’s “liberty,” it’s an unusual sort of liberty. The strongest case for liberty arises when people seek the right to do what they please with their own bodies, labor, and property, and the bodies, labor, and property of consenting adult partners (whether sexual, familial, business, or otherwise). But parental rights are the rights to control someone else’s actions. My child is not me. He is not my property. That I have the right to, say, alter my own body (or hire someone to do it for me) or to choose spiritual healing over traditional medical treatment doesn’t tell us much about whether I should have the right to alter another person’s property, or deny another person medical treatment — even if the other person is my minor child.

2. Moreover, parental rights don’t just involve the government refraining from action (e.g., by not arresting me for false imprisonment when I physically restrain my child, the way it would if I tried to do that for an adult). Rather, they involve the government taking affirmative coercive steps to support parents’ rights. The law often makes it a crime to entice minors from their parents, even when the minors are happy to go. It lets police forcibly return runaway minors. Some statutes threaten children “who persistently or habitually refuse[] to obey the reasonable and proper orders or directions of his or her parents, guardian, or custodian” with being adjudged “ward[s] of the court.” And some court decisions go so far as ordering people not to contact a particular minor. See Brekke v. Wills, 23 Cal. Rptr. 3d 609, 613 (Ct. App. 2005) (upholding injunction barring sixteen-year-old girl’s ex-boyfriend, whom mother considered bad influence, from contacting the girl, partly on grounds that injunction helped protect “[mother’s] exercise of her fundamental right as parent to direct and control her daughter’s activities”). If parents are legally allowed, for instance, to decide not to provide a child with certain medical treatment, a doctor who wants to provide such treatment would be legally barred from providing it.

Thus, parental liberty involves (A) suspension of the normal rules — which most libertarians approve of — barring one person from coercing another, plus (B) special rules that outright forbid people from certain actions with other people’s children. This is pretty far from things such as liberty of speech, sexual liberty (whether or not one thinks such liberty should be constitutionally protected liberty), liberty of contract, and so on. So the libertarian case for parental rights has to rest on something other than the basic “my body, my labor, my choices” libertarian perspective. To be sure, the parent may say “my child,” but that’s a different sense of “my” than in “my body.” Someone’s being “my brother” or even “my spouse” doesn’t give me rights over that person. If someone’s being “my child” gives me rights over the child, there needs to be some better explanation than “liberty” in the abstract.

3. My sense is that the strongest such explanation, at least from a libertarian perspective, should not from claims about parents’ inherent liberty to control their children’s upbringing, and more from claims about what’s best for children given the limitations of government. The argument would go something like this: Children, up to a certain age, need someone to make decisions for them, with an eye towards putting them in the best position to exercise their liberty once the children grow up. Someone needs both to shield them from dangers that may keep them from surviving to adulthood (disease, accidental death, starvation, criminal attack), and to positively provide them the things they need (education, self-control, and the like).

Continue reading ‘Liberty and Parental Rights’ »

In Friday’s Ex Parte E.R.G., the Alabama Supreme Court struck down the Alabama grandparent visitation statute, holding that it violated the rights of parents. The decision was a splintered 4-3-2 decision, which reflects the Supreme Court’s splintered decision in Troxel v. Granville (2000) — which held that some such laws are unconstitutional, but didn’t decide whether all such laws are unconstitutional. And the opinion among state courts is likewise splintered. I hope to have a chance to blog about this in the next few days.

But for now, I just wanted to note this passage from Justice Parker’s concurrence (which also contains various assertions about the Christian basis of American law):

I concur specially to write on the origin of the fundamental right of parents to direct the upbringing and care of their children. The main opinion in this case references Troxel v. Granville, 530 U.S. 57 (2000), for the principle that parents have a fundamental right to direct the care and upbringing of their children. This right does not originate with Troxel, however; it has existed for millennia, an integral part of the institution of the family.

I. The family preexisted the state.

The family was the first of all human institutions. One man and one woman came together in covenant before God, and they, with the children God gave them, became the first human social structure. As William Blackstone wrote, “single families ... formed the first natural society,” becoming “the first though imperfect rudiments of civil or political society.” 1 William Blackstone, Commentaries on the Law of England *47 (1765). There was no state: no one person had been given civil authority over another, to punish evil and to prevent oppression. Nor was there a church to provide structure and order in the worship of the Creator. Both of these necessary institutions would come later — indeed, they were prefigured in the discipline and worship of the family — but the “sacred” relationships, Montgomery v. Hughes, 4 Ala.App. 245, 58 So. 113 (1911), within the family came first.

I certainly agree that the family preexisted the state as we know it. But is there any solid basis for believing that it was an exclusively two-person family in which the parents exercised parental authority even to the exclusion of the grandparents? Certainly families in many early societies could be polygamous, rather than “[o]ne man and one woman”; in particular, the society described by the Old Testament, which Justice Parker cites several times, allowed polygamy. And in at least one famous ancient Western civilization — the Roman — grandfathers at least nominally had power over their grandchildren, as well as over their adult children. Do any readers know whether Justice Parker’s assertions that the two-parent-controlled nuclear family (or for that matter just the father-controlled two-parent nuclear family) indeed came “first,” under any plausible scientific understanding of when “human institutions” emerged?

I should say that if Justice Parker had limited himself to saying that parental rights and monogamy were well-established in English law at the time of the framing of the Constitution, I would have had no historical objections to that narrower claim. Thanks to How Appealing for the pointer, and to Alabama Appellate Watch for posting the opinions.

The proposed anti-circumcision initiative follows the text of the San Francisco initiative. According to the Jewish Journal, “To qualify the initiative for inclusion on the ballot in Santa Monica’s next election in November 2012, its proponents will need to collect signatures from 10 percent of the city’s approximately 61,000 registered voters in the next six months. If they obtain signatures from 15 percent of Santa Monica’s voters, the initiative could be put to a vote in a special election.”

Santa Monica is a relatively wealthy enclave of the greater Los Angeles area — not really a suburb, but part of the West Los Angeles core. It is also heavily Democratic (69% D, 29% R), and supposedly almost 5% Jewish. San Francisco is likewise supposedly about 5% Jewish; America as a whole is 2% Jewish, though I’m not sure how the site that I’m citing is gathering its city-level religion statistics. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

In November, San Francisco voters will vote on an initiative that would generally ban circumcision of boys under age 18, except when “the operation is necessary to the physical health of the [child] because of a clear, compelling, and immediate medical need with no less-destructive alternative treatment available, and is performed by a ... licensed ... medical practitioner.” In determining whether the exception is applicable, “no account shall be taken of the effect on the [child] of any belief on the part of [the child] or any other person that the operation is required as a matter of custom or ritual.”

Would such a ban be constitutional? That’s a surprisingly complex question, and I’d like to break down the answer into two parts: the parental rights question in this post, and the religious freedom question in another post.

As of 2005, about 56% of newborn American boys, and about 31% of American boys in the Western states, were circumcised. (In the Midwest, the fraction was nearly 75%.) Since Jews and Muslims — the two groups that generally circumcise for religious reasons — make up about 3% or so of the population, it seems that over 90% of all circumcisions are not religiously motivated. The fraction might be lower in San Francisco proper (I know of no statistics limited to that city), but I suspect that even in San Francisco, the great majority of circumcisions aren’t religiously motivated.

So the parental rights question, viewed independently of the religious freedom question, is indeed important. And, as we’ll see in the later post, it turns out that, even for religiously motivated circumcisers, the religious freedom claim depends in some measure on the parental rights question.

Is a presumptive constitutional right of parents in play here? Parents, the Supreme Court has held, have a presumptive constitutional right to control the upbringing of their children. No such right is mentioned expressly in the Constitution, but the Supreme Court has recognized this right since the 1920s, and so far only Justice Scalia has argued that no such right exists (though Justice Thomas has expressly said that he expresses no view on whether it exists).

Continue reading ‘Proposed San Francisco Circumcision Ban (with No Discussion of Religious Freedom in This Post)’ »

What a way to enter this world. From In re Leroy R. (N.Y. App. Div., decided today):

Order, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about August 31, 2010, which, following a hearing pursuant to Family Court Act § 1028, granted the application of respondent father to release the subject child to his custody on condition that the child not be left alone with the respondent mother, and subject to the father demonstrating to the “reasonable satisfaction” of the petitioner agency (ACS [Administration for Children's Services]) that there are appropriate arrangements in place to ensure that the child will not be left alone with the mother, unanimously reversed, on the law and the facts, and the application denied, without costs.

Continue reading ‘“The Father’s Graphic, Profanity-Laced Death Threats Were Directed at ACS Staff and Hospital Personnel Within Hours of His Son’s Birth”’ »

Arkansas’s Act 1 (passed by a voter initiative, though that didn’t affect the analysis), “an individual is prohibited from adopting or serving as a foster parent if that individual is ‘cohabiting with a sexual partner outside of a marriage that is valid under the Arkansas Constitution and the laws of this state.’” Today’s Arkansas Dep’t of Human Servs. v. Cole, a unanimous decision from the Arkansas Supreme Court, struck down the law. The reasoning went basically as follows:

1. The Arkansas Constitution was interpreted in Jegley v. Picado (2002) as securing a right to privacy, included in which is protection of “private, consensual, noncommercial acts of sexual intimacy between adults.”

2. There is no constitutional right to adopt or to be a foster parent; but even privileges that the government may withdraw for some reasons generally can’t be withdrawn in a way that substantially burdens a constitutional right. Here, telling people that to adopt or to be a foster parent they must give up their constitutional right to sexual intimacy with their chosen partner is a substantial burden on that constitutional right. “[U]nder Act 1 the exercise of one’s fundamental right to engage in private, consensual sexual activity is conditioned on foregoing the privilege of adopting or fostering children. The choice imposed on cohabiting sexual partners, whether heterosexual or homosexual, is dramatic. They must chose either to lead a life of private, sexual intimacy with a partner without the opportunity to adopt or foster children or forego sexual cohabitation and, thereby, attain eligibility to adopt or foster.”

3. The court didn’t consider the possibility that heterosexual unmarried couples who want to adopt or foster children could avoid this burden by marrying, presumably because the right to privacy also includes a right not to marry.

4. Burdens on the right to sexual intimacy can still be constitutional if they are narrowly tailored to a compelling government interest, and exclusion of some such couples as part of the “best interests of the child” analysis might be constitutional. (The court said the same as to “no living with your lover while your children are present” conditions in child custody orders.) But this could only be done based on individualized findings that the particular relationship is indeed against the child’s best interests.

The systems for selecting parents for adoption and foster care already provide for individualized examination of the fitness of prospective adoptive or foster parents. If there’s concern that a particular unmarried relationship is so likely to be unstable, for instance, that it would be against a child’s best interests to be placed in that family, then that concern could be considered as part of the selection process. But a categorical ban on such parents isn’t narrowly tailored to the government interest in protecting children. (I take it that this decision was partly influenced by the fact that for many children who are up for adoption or foster care, the choice is not between an eminently suitable married couple as parents and an unmarried couple as parents, but rather between an unmarried couple and an unsuitable married couple, or an unmarried couple and some group home, or an unmarried couple who are the child’s relatives and a married couple who are strangers to the child.)

The analysis strikes me as correct, given the recognition of a couple’s sexual intimacy as a constitutional right. Just as a rule that bars placing children with libertarians, Socialists, or gun owners would be an unconstitutional burden on the underlying right to speak or to own guns, so a rule that bars placing children with unmarried couples in a sexual relationship is an unconstitutional burden on the underlying right to sexual intimacy.

Thanks to How Appealing for the pointer. No thanks to the AP headline writer who characterized the story as “Ark. court strikes down law barring gay adoptions” (though the body of the story does note that the law barred all adoptions by unmarried couples, same-sex and otherwise).