U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

89–705 PDF 2014

PROPOSING AN AMENDMENT TO THE 

CONSTITUTION OF THE UNITED STATES 

RELATING TO PARENTAL RIGHTS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION 

AND CIVIL JUSTICE 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

SEPTEMBER 9, 2014 

Serial No. 113–104 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

SPENCER BACHUS, Alabama 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

MARK AMODEI, Nevada 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

JASON T. SMITH, Missouri 

[Vacant] 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

JOE GARCIA, Florida 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION AND CIVIL JUSTICE

TRENT FRANKS, Arizona, Chairman 

JIM JORDAN, Ohio, Vice-Chairman 

STEVE CHABOT, Ohio 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

LOUIE GOHMERT, Texas 

RON DeSANTIS, Florida 

JASON T. SMITH, Missouri 

STEVE COHEN, Tennessee 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

TED DEUTCH, Florida 

PAUL B. TAYLOR, Chief Counsel 

JAMES J. PARK, Minority Counsel 
(III) 

C O N T E N T S 

SEPTEMBER 9, 2014 

Page 

OPENING STATEMENTS 

The Honorable Trent Franks, a Representative in Congress from the State 

of Arizona, and Chairman, Subcommittee on the Constitution and Civil 

Justice ................................................................................................................... 1 

The Honorable Steve Cohen, a Representative in Congress from the State 

of Tennessee, and Ranking Member, Subcommittee on the Constitution 

and Civil Justice ................................................................................................... 5 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 6 

WITNESSES 

Michael P. Farris, JD, LLM, Chairman, Home School Legal Defense Association, and Chancellor, Patrick Henry College 

Oral Testimony ..................................................................................................... 11 

Prepared Statement ............................................................................................. 14 

Catherine J. Ross, Professor of Law, George Washington University Law 

School 

Oral Testimony ..................................................................................................... 22 

Prepared Statement ............................................................................................. 24 

Wendy Wright, C-FAM, Center for Family and Human Rights 

Oral Testimony ..................................................................................................... 37 

Prepared Statement ............................................................................................. 39 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 8 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Steve Cohen, a Representative in Congress from the State of Tennessee, and Ranking Member, Subcommittee 

on the Constitution and Civil Justice ................................................................. 62 

Prepared Statement of the Honorable Bob Goodlatte, a Representative in 

Congress from the State of Virginia, and Chairman, Committee on the 

Judiciary ............................................................................................................... 65 

Prepared Statement of the Honorable Mark Meadows, a Representative in 

Congress from the State of North Carolina ....................................................... 67 

Material submitted by the Honorable Steve Cohen, a Representative in Congress from the State of Tennessee, and Ranking Member, Subcommittee 

on the Constitution and Civil Justice ................................................................. 68 

(1) 

PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES RELATING TO PARENTAL RIGHTS 

TUESDAY, SEPTEMBER 9, 2014 

HOUSE OF REPRESENTATIVES

SUBCOMMITTEE ON THE CONSTITUTION

AND CIVIL JUSTICE

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Subcommittee met, pursuant to call, at 2:08 p.m., in room 

2141, Rayburn House Office Building, the Honorable Trent Franks 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Franks, Jordan, Chabot, DeSantis, 

Cohen, Conyers, Scott, and Johnson. 

Staff Present: (Majority) John Coleman, Counsel; Tricia White, 

Clerk; (Minority) James Park, Minority Counsel; and Veronica 

Eligan, Professional Staff Member. 

Mr. FRANKS. The Subcommittee on the Constitution and Civil 

Justice will come to order, and without objection, the Chair is authorized to declare a recesses of the Committee at any time. 

The Subcommittee on the Constitution meets today to consider 

H.J. Res. 50, proposing an amendment to the Constitution of the 

United States relating to parental rights. 

The late Notre Dame Law School Professor, Anton-Hermann 

Chroust, is said to have told his students that, ‘‘The academics repeatedly declare the natural law to be dead, but every 25 years or 

so, it comes in again by the back door when some crisis shows the 

failure,’’ of other approaches. 

Our Founding Fathers’ appeal to natural law in the Declaration 

of Independence is an example of when the natural justice was revealed in our Nation. They stated in this founding document that 

mankind is ‘‘endowed by their Creator certain inalienable rights, 

among them being life, liberty and the pursuit of happiness.’’ And 

during times in our Nation’s history when our laws proved deficient, Americans appealed to higher principles of justice and 

grounded them in our legal system by amending the United States 

Constitution. 

It is clear to many Americans that natural justice informs us of 

the inalienable right of parents to direct the of upbringing of their 

children. 
2 

Just a few decades ago, no American would have believed that 

laws were necessary to protect the rights of parents to direct the 

care and upbringing of their children because this right was considered so integral, so basic to our way of life. The Supreme Court affirmed this fact in its 1925 decision in Pierce v. Society of Sisters. The Court stated that, ‘‘The 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.’’ 

Almost 50 years later, in the 1972 case of Wisconsin v. Yoder, the 

Court reaffirmed this fundamental principle by stating, ‘‘The primary role of the parents in the upbringing of their children is now 

established beyond debate as an enduring American tradition.’’ The 

Supreme Court has thus recognized the rights of parents as fundamental, meaning those rights cannot be violated unless the state 

proves it has an ‘‘interest of the highest order which cannot be otherwise served.’’ 

The integrity of parental rights, however, was threatened in the 

year 2000. In the U.S. Supreme Court case Troxel v. Granville, a 

four-judge plurality described parental rights as historically fundamental but declined to apply strict scrutiny, the standard of review 

used by courts in cases in which fundamental rights are involved. 

In the wake of Troxel, Federal and State courts have permitted 

governmental intrusions into parental decisions, ranging from the 

choice of schools to the most basic aspects of child rearing. State 

legislatures have restricted parental access to educational information, health records, and even a list of books and media that their 

children may borrow from the library. Such mandates radically 

change the long-established authority structure between families 

and government by forcibly inserting the state between parent and 

child. 

Parental rights faces external threats, international law, including widely ratified treaties like the U.N. Convention on the Rights 

of the Child permits the state to override the decision of fit parents 

if they believe that a contrary decision will benefit the ‘‘best interests of the child.’’ Even if the United States refuses to ratify a treaty, American courts could attempt to recognize a treaty’s principles 

as a reflection of binding international norms and customs under 

the doctrine of ‘‘customary international law,’’ and thus override all 

inconsistent State law. 

The Parental Rights Amendment ensures that treaties or other 

forms of international law cannot be used to override or modify parental rights. The truths, principles and knowledge implicated into 

the hearts and minds of our children will help define America’s future. In fact, I believe it is the blueprint of whatever future that 

humanity will have. A government thinking and acting for parents 

invites harm to our notions of freedom and the rule of law. 

The purpose of the Parental Rights Amendment is to establish 

the rights of parents to direct the education of their children as 

fundamental. This amendment will also provide clarity to our 

courts and firmly establish the constitutional protections parents 

now need from an ever-infringing government. 

I want to thank our witnesses for appearing today. I look forward 

to your testimony. 
3 

[The resolution, H.J. Res. 50, follows:] 
4 
5 

Mr. FRANKS. And I now turn to the Ranking Member for his 

opening statement. Mr. Cohen. 

Mr. COHEN. Thank you, Mr. Chair. 

And I Am pleased to have met the witnesses earlier. Nice to be 

with you. The Supreme Court has long recognized that the right of 

otherwise fit parents and guardians to make decisions about the 

upbringing of a child under their care is a fundamental right under 

the 14th Amendment’s due process clause. Our witnesses seem to 

agree on this, on the fact that no constitutional right is absolute. 

So the central focus of our discussion today is whether the Constitution should be amended, which it should be done rarely, not 

only to explicitly state that a parent’s right to make child-rearing 

decisions is fundamental but to enshrine some very specific ideas 

about the nature and scope of that right into our Constitution. 

H.J. Res. 50, the specific proposal before us, would make some 

potentially dramatic changes to the state of current law and could 

be harmful if adopted. As a general matter, amending the text of 

our Constitution is not and should not be a casual matter. Amending the Constitution every time that there is a disagreement over 

the possible effects of a court decision, which H.J. Res. 50’s proponents say is one of the main reasons why a constitutional 

amendment is needed, weakens the Constitution’s basic characters 

of governing framework, particularly when the concerns driving the 

change are speculative, as is the case here. 

There is a reason why we have amended the Constitution so 

rarely and why the Framers made it so difficult to amend. As a 

fundamental document, the Constitution should certainly not be 

amended because of policy disagreements or speculative risks. In a 

case such as this where the right is already widely established 

under the Constitution and where the purported threats are highly 

speculative, I would have grave reservations about moving forward 

with a constitutional amendment. 

My concerns are only heightened by the fact that H.J. Res. 50 

itself is problematic for several reasons. First, who would be protected by this amendment? Section 1 provides that the ‘‘liberty of 

parents to direct the upbringing, education and care of their children is a fundamental right,’’ but does not define who is ‘‘a parent.’’ 

Does this provision protect guardians or only biological parents? 

The Supreme Court recognized in Pierce v. Society of Sisters in 

1925, that the 14th Amendment protected guardians as well as 

parents. So if this provision were given its most narrow reading, 

it would be a significant departure from current law. 

Would this provision protect sperm donors but not adoptive parents? Would this provision protect same-sex couples who were allowed to adopt in one State but whose adoption is not recognized 

in another? 

Given its most narrow interpretation, H.J. Res. 50 fails to protect 

the rights of the full spectrum of adults who are legally the primary caretakers of children and does not recognize the diversity of 

contemporary families and parenthood. 

Second, as Professor Catherine Ross has testified in her written 

statement, section 2 could threaten to undermine our public education system by essentially giving any parent the constitutional 

right to veto any decision as to how a public school is managed, in-
6 

cluding choices about curricula, reading assignments, and school 

activities. 

Third, H.J. Res. 50 will change the law in areas that have little 

to do with parental rights. For example, section 4 provides that 

this article should not be construed to apply to a parental action 

or decision that would end life. This language could be interpreted 

to prevent parents from choosing to have an abortion. Moreover, it 

contains no exceptions for protecting the health of the mother. It 

is no secret that I am strongly pro choice, and I would be seriously 

concerned about the substance of this language to the extent that 

it was aimed at reproductive rights. 

But whatever one’s views on abortion or reproductive rights such 

as fundamental change to the law in this area, these areas should 

not be—changes should not be made through a constitutional 

amendment that ostensibly is designed to protect parental rights. 

For these reasons, not only is H.J. Res. 50 not necessary, it is also 

highly problematic and not worthy of, no pun intended, of adoption. 

And I would for the record correct, it was Billie Holiday who 

wrote ‘‘God Bless the Child’’ in 1938, a Tennessee resident. And 

John Conyers would have known that, and I am sorry, but I had 

it wrong. 

So, with all reference to that, God Bless the Child. I yield back 

the balance of my time. 

Mr. FRANKS. Sounds like she might have favored this amendment. 

I am going to now recognize the Ranking Member of the Committee, Mr. Conyers, for his opening statement. 

Mr. CONYERS. Thank you, Mr. Chairman. 

I will submit my statement after the excellent job of our Ranking 

Member Cohen. 

But without question, support for the right of parents to direct 

the upbringing and education of their children cuts across ideological and party lines. And the protection of parental rights under 

the Constitution has not been questioned, never been questioned at 

any time by the Supreme Court. 

While admittedly not among the enumerated constitutional 

rights, parental rights are, without a doubt, a core right protected 

by the due process clause. So as we consider whether to amend the 

Constitution to add a parental rights provision, the first question 

that should be asked is, is this a problem that requires amending 

the text of the Constitution? 

As I have noted, the Supreme Court has long recognized that the 

right of otherwise fit parents to make decisions regarding their 

children’s upbringing has a constitutional dimension. And so over 

the last 90 years, the Court has issued numerous decisions that repeatedly reaffirm the fundamental nature of a fit parent’s right to 

make decisions—decisions, Meyer v. Nebraska, Pierce v. The Society 

of Sisters, Washington v. Glucksberg, Santosky v. Kramer—and so 

I reject the argument made by some that the Supreme Court’s decision in 2000 in Troxel v. Granville somehow weakened the constitutional protection of parents’ rights. 

In Troxel, the Court correctly ruled that an overly broad State 

law that permitted any person to petition a court for visitation 

rights at any time and that required the Court to grant such peti-
7 

tion if visitation was in the best interest of the child, was unconstitutional as applied. So, again, I close by asking, what is the problem that needs to be fixed by constitutional amendment? And I will 

submit the rest of my opening statement in the record. 

And I yield back the balance of my time. 

[The prepared statement of Mr. Conyers follows:] 
8 
9 
10 
11 

Mr. FRANKS. I would thank the gentleman. 

Without objection, other Members’ opening statements will be 

made part of the record. 

Let me now introduce our witnesses. Our first witness is Michael 

Farris. Mr. Farris is a founder and chairman of the Home School 

Legal Defense Association, HSLDA, and founder and chancellor of 

Patrick Henry College. Since creating HSLDA in 1983, Mr. Farris 

has helped grow the organization to over 80,000 member families. 

Mr. Farris has written over a dozen books, a constitutional law 

textbook, and works on marriage, parenting, home schooling, political advocacy, and religious liberty. 

Welcome to the Committee, sir. 

Our second witness, Professor Catherine Ross, is a member of 

the George Washington Law School faculty. Professor Ross has 

been a visiting professor at the University of Pennsylvania Law 

School where she also was a senior legal consultant to the Field 

center in Children’s policy practice and research, and at Boston 

College Law School where she held joint appointments in Reed 

Morris—the School of Education and the History Department 

there. Professor Ross also serves on the editorial board of the Family’s Courts Review and has served on the editorial board of the 

Family Law Quarterly. 

Our third witness is Wendy Wright. Ms. Wright has been an active pro-life member and committed to family issues for more than 

25 years on the international and national and local level. She has 

advised international and congressional leaders, testified in Congress, and State legislatures. She writes, speaks and trains on current issues for a popular audience. Her work has influenced landmark rulings on freedom of speech in the U.S. Supreme Court and 

several other U.S. State courts. 

Now each of the witnesses’ written statements will be entered 

into the record in its entirety. I would ask each witness to summarize his or her testimony in 5 minutes or less. To help you stay 

within that time, there is a timing light in front of you. The light 

will switch from green to yellow, indicating that you have 1 minute 

to conclude your testimony. When the light turns red, it indicates 

that the witness’s 5 minutes have expired. Before I recognize the 

witnesses, it is the tradition of this Subcommittee that they be 

sworn, so if you’d please stand to be sworn. 

[Witnesses sworn.] 

Mr. FRANKS. Let the record reflect that the witnesses answered 

in the affirmative. 

And I would now recognize our first witness, Mr. Farris. Sir, 

please make sure your microphone is on before you start. 

TESTIMONY OF MICHAEL P. FARRIS, JD, LLM, CHAIRMAN, 

HOME SCHOOL LEGAL DEFENSE ASSOCIATION, AND CHANCELLOR, PATRICK HENRY COLLEGE 

Mr. FARRIS. Mr. Chairman, Members of the Committee, thank 

you so much for the opportunity to be able to testify today, and 

thank you for holding this hearing. This hearing is called to answer 

one central question: Should the traditional right of parents to direct the upbringing of their children be protected in the actual text 

of the Constitution? 
12 

There really are only three possible answers. Some think that 

the current law which treats parental rights as an implied right in 

our Constitution is sufficient to protect appropriate parental rights 

as a fundamental right. Second, another group opposes the very 

concept of protecting parental rights as a fundamental liberty interest. And, third, the proponents of the amendment believe that 

there are sufficient present and foreseeable threats to parental 

rights that it has become time to adopt a specific amendment. 

Now every Member of Congress that I have ever talked to on this 

subject has affirmed the core idea that parental rights should be 

protected as a fundamental right, and both the statements of Representative Cohen and Representative Conyers today were consistent with that, that we all believe that parental rights are and 

should be a fundamental right. 

If it is simply a drafting issue, I would suggest to Mr. Cohen that 

we probably could find political common ground and get to the correct drafting if there were drafting issues. 

But the fundamental issue is, is it time to adopt a specific 

amendment? I would like to offer three lines of evidence that it is, 

indeed, the time to place parental rights into the actual text of the 

Constitution if it is going to be preserved as a fundamental right. 

The first line of evidence is that the Nation is moving in a practical way in a direction that is absolutely opposed to parental 

rights. Our organization has accumulated hundreds of stories from 

every State in the Nation and from virtually every congressional 

district where parents are being told that they may no longer accompany their children for routine medical treatments. 

For example: Representative Franks, in your district, Candace C. 

from Fort Mohave, Arizona, tells us that she went to dentist after 

dentist in her community before she finally found one who would 

allow her to accompany her in for the treatment. 

Sierra H. from Wooster, Ohio, in Representative Renacci’s district told us that her pediatrician questioned her 12-year-old son 

separately from her, despite the fact that there was no basis for believing that this mother was engaged in improper behavior toward 

the son. It turns out that this physician does this with every child. 

Ted from Stateline, Mississippi, was prevented from accompanying his 13-year-old daughter into the dentist’s office. As is typical in these cases, the doctor told the dad that the government regulations now require children to be separated from their children 

during treatment. 

We are hearing this all over the country in virtually every congressional district and with all kinds of medical providers. Whether 

they are dentists or pediatricians or physical therapists, it really 

doesn’t seem to make any difference. The governmental command 

of separating children from parents is becoming epidemic. 

Now, this crisis has found its way into the courts in the area of 

psychotherapy with the California and New Jersey laws that prevent parents, whether their child is willing or not, to seek therapy 

for the child that is designed to assist a child who is experiencing 

same sex attractions and either the parents or the child want to 

avoid those attractions. Now, we have not reached the point as a 

Nation where such therapy is banned for adults. If an adult wants 

that kind of therapy, they can get it, so it is not that level of harm. 
13 

So the question is, who decides for a child whether or not this 

therapy is good or bad? Well, in New Jersey and California, the 

government has decided to take the place of the parent. 

The second line of evidence is that although the Supreme Court, 

if you read it very closely as a number of lower courts have done, 

they disagree with the contention that the Court has a clear signal 

that parental rights are fundamental. The Fifth Circuit in the case 

I site, Littlefield v. Forney School District, concluded that it is not 

a fundamental right. You do not get the test that goes with fundamental rights analysis, and that decision has been followed by a 

district court in Nevada, Federal District Court in Nevada, and another district court in New Jersey. 

The Court of Appeals California in a home school case that I argued before the Court of Appeals held that the Federal courts were 

out of sync with the idea that fundamental rights were to be accorded to parental rights, but based on the California precedent, 

they gave us the victory that we needed in that case, but the national standard is diminishing. 

Finally, we hear from witnesses like my colleague here today, 

Catherine Ross, who argues that parental rights should not be protected, even in the area of transmitting your own values to your 

own children. And I will have more to say after she testifies, perhaps in questioning. My time is up. Thank you very much. 

Mr. FRANKS. Thank you, Mr. Farris. 

[The prepared statement of Mr. Farris follows:] 
14 
15 
16 
17 
18 
19 
20 
21 
22 

Mr. FRANKS. And I now recognize Ms. Ross for 5 minutes, and 

make sure if you would that your microphone is on. 

TESTIMONY OF CATHERINE ROSS, PROFESSOR OF LAW, 

GEORGE WASHINGTON UNIVERSITY LAW SCHOOL 

Ms. ROSS. Mr. Chairman, and Members of the Subcommittee, 

thank you for inviting me to appear before you today. 

My written submission adequately covers the two major points. 

There is no urgent need—in fact, there is no need at all—for this 

amendment. And I want you to remember that the proponents’ reassurances about their intention in drafting the text do not change 

the reality that the amendment threatens to transform several 

areas of constitutional law, causing grave harm. 

Before beginning, let me briefly respond to some of Chancellor 

Farris’ comments. His written submission mischaracterizes my position on parental rights, home schooling, and tolerance, and I will 

be happy to take questions. I don’t want to take a detour through 

that now, but he also just gravely mischaracterized my position in 

saying that I don’t believe parental rights should be protected. 

I have never said that, and I have an extensive body of published 

work in this area. 

The Supreme Court has always given parental rights the highest 

deference, as the many cases that I discussed and that some of the 

speakers earlier have talked about. I fully support parental rights, 

and I agree and have argued that they have a constitutional dimension, and so the amendment isn’t needed. 

But like all fundamental rights, parental rights are not absolute. 

Courts must also consider the states’ substantial and, I would 

argue usually compelling, interests in the safety, health and education of children and the sometimes countervailing constitutional 

rights that children possess on their own as the Supreme Court has 

held in the areas of contraception, abortion, and speech. 

Parental rights are not under attack. They are not in jeopardy. 

And no matter how often Mr. Farris says he is providing evidence, 

he has not provided any evidence. My statement thoroughly rebuts 

the 24 cases on which he relied in 2012. And his stories today are 

nothing more than hearsay attributable to unnamed people and 

often double hearsay, stories he has heard from someone about 

someone else. 

And I must say, if doctors don’t understand the law, someone 

should tell them what it is because there is no Federal rule or statute that says that children must be seen apart from their parents, 

though it is the best pediatric practice, as the professional literature reveals. To the extent these are State laws or even congressional laws, use the legislative process. Have the statutes and regs 

changed. Don’t amend the Constitution when it is not necessary. 

Parents do have rights that are first in time but not always first 

in authority. When parents use the public schools, they have to follow the schools’ rules. Their choice under Pierce is to satisfy compulsory education elsewhere, in schools that, as Meyer and Pierce 

both stated very expressly, are regulated by the State and are subject to that regulation. 

I agree there is a problem about who this amendment would protect. There are a lot of different kinds of parents, but most impor-
23 

tantly, this amendment threatens our parens patriae traditions in 

which the state has its own interests in making sure that the next 

generation of citizens are brought up safely, are kept healthy, and 

receive the education that our citizens need. I don’t think that 

those kinds of statutes, regulations, and practices would succumb 

if this amendment were passed, but I would bet my house that the 

proponents and many others inspired by this amendment would 

challenge our entire child welfare system just as the home 

schoolers maintain repeatedly and go to court on the question of 

whether they should be subjected to any form of state supervision 

or regulation, including even having to say they have children at 

home and they are teaching them. 

Thank you. I look forward to your questions. 

Mr. FRANKS. Thank you. 

[The prepared statement of Ms. Ross follows:] 
24 
25 
26 
27 
28 
29 
30 
31 
32 
33 
34 
35 
36 
37 

Mr. FRANKS. And I will now recognize Ms. Wright for 5 minutes. 

TESTIMONY OF WENDY WRIGHT, C-FAM, 

CENTER FOR FAMILY AND HUMAN RIGHTS 

Ms. WRIGHT. Thank you for the invitation to testify today. The 

evolution of U.N. Treaties, their reach into issues like parental 

rights with views alien to Americans is troubling. Even more 

alarming, are government officials giving credibility to foreign 

sources that threaten established rights. Advocates who don’t share 

Americans’ beliefs in parental rights turn to U.N. Experts for validation and a veneer of authority. 

U.N. Experts issue opinions and papers dismissing the role of 

parents.Agencies like UNICEF say children as young as 10 have 

rights to access services without their parents’ knowledge, thus giving greater authority to adults offering such services than to parents. 

Supreme Court Justices have looked to U.N. Treaties which the 

U.S. Has not ratified or limited by an explicit reservation to justify 

their decisions. 

The threat to parental rights through the evolution of U.N. 

Agreements comes by design. Governments carefully negotiate U.N. 

Treaties. Yet U.N. Committees that monitor compliance have become notorious for misinterpreting and even contradicting what 

governments agree to. 

Recently the Committee on the Rights of the Child decided children from ages 1 to 18 have sexual and reproductive rights and 

should receive services, including abortion, without parental consent. The U.N. Committee Against Torture criticizes restrictions on 

abortion as tantamount to torture. A Member of this Committee 

says opposing abortion may be a form of torture. This Committee 

Member is closely aligned with a group dedicated to overturning 

abortion laws. At a meeting hosted by this group she said she 

looked for opportunities to promote abortion. She conceded U.N. 

Committees have no binding authority. They put opinions out in 

ether and hope others pick it up, to use in litigation, to name and 

shame, and to demand compensation. 

In 1996, U. N. staff, activists and academics who shared a core 

belief in the sexual autonomy of children, redefining family and 

marriage, and abortion, adopted a strategy to use the U.N. Bureaucracy of experts to create new human rights. First, U.N. Treaty committees would declare new interpretations. 

Second, U.N. Agencies reinforced the new interpretations with 

technical guidance detailing how nations should incorporate these 

concocted rights. For example, the World Health Organization and 

the Office of the High Commissioner on Human Rights have published papers on making abortion accessible with no protections 

and no parental involvement. UNICEF claimed the Disabilities 

Treaty gave children as young as 10 the right to reproductive and 

health services without their parents’ knowledge or consent. 

Alone, they are just an echo chamber. They only carry weight if 

government officials treat them as influential. So, third, advocates 

lobby and file lawsuits treating U.N. Opinions as authoritative. 
38 

Following recommendations by a U.N. Treaty committee, the 

high courts of Argentina and Colombia struck down their abortion 

bans. 

Most troubling, Supreme Court Justices have looked to foreign 

sources to corroborate their decisions. In Roper v. Simmons, the 

court referred to the Convention on the Rights of the Child, a treaty the U.S. has not ratified. An optional protocol to the child’s 

rights treaty allows children or groups to file complaints directly to 

the U.N. Committee. If the U.S. were to ratify this optional protocol, complainants who do not like the outcome of their case based 

on U.S. law, could invite U.N. Bureaucrats to sit in judgment of 

U.S. Laws and norms. U.N. Staff will rely on paperwork submitted 

by self-selecting advocates of this international system. Their perspective will be the child’s rights approach that isolates children as 

autonomous and views parents as infringing on children’s rights. 

In light of the stated intentions, coordination and funding that 

is propelling the international rights based movement, in particular 

the child’s rights movement, defenders of parental rights have 

cause to be concerned. Thank you for your attention. 

[The prepared statement of Ms. Wright follows:] 
39 
40 
41 
42 
43 
44 
45 
46 

Mr. FRANKS. I want to thank the witnesses. 

And we will now begin the question time. And I will recognize 

myself for 5 minutes for the first question. 

You know, I took a note, Ms. Ross, of one of the comments that 

you made that said children also have constitutional rights of their 

own in the areas of abortion and contraception. That was sort of 

a paraphrase. And for a moment, I genuinely didn’t understand 

what you were talking about. I thought, well, maybe there is some 

common ground here. But it is difficult for me to understand why 

children have the right to an abortion but not the right to be protected from it. It is a strange situation. 

I think it also speaks to the whole issue of the necessity of such 

an amendment. I think 30, 40 years ago, 40 years ago, more, most 

of us in America believed that the right to live was a fundamental 

right. In fact, it was clearly enumerated in the Constitution. It was 

as clear as it could possibly be. And I don’t think too many people 

believed that some day, that we would take the lives of 3,000 children every day, to take their right to live away every day, even 

though it is enumerated in the Constitution, without at least some 

due process of law. But that is where we are, so I would commend 

the sponsors of this amendment for making sure that they run 

ahead of some of the curve here because it has been a pretty wild 

ride. 

The four-judge plurality in Troxel v. Granville, Mr. Farris, described parental rights as having been recognized as fundamental 

historically but then declined to use the strict scrutiny test that applies to an examination of fundamental rights. Since then, Federal 

and State courts applying all kinds of legal standards have permitted government intrusions on parental rights ranging from 

school choice to the most basic aspects of a child being raised. 

Can you speak a little more about these varying standards that 

the courts are applying and how this amendment would address 

those concerns? 

Mr. FARRIS. Yes, I can, Mr. Chairman. The case that illustrates 

the problem that is cited in my written testimony, is the case of 

Littlefield v. Forney Independent School District. That case was 

about dress codes, and I personally think that the Court got to the 

right outcome in the substance of the decision. But as every lawyer, 

especially who practices in the area of constitutional law knows, it 

is not merely the outcome of the facts but it is the legal principle 

that is announced. 

The Court held in that case that in many situations, you do not 

use the fundamental rights analysis for parental rights, but instead 

you use nonfundamental rights analysis, which is the least restrictive means method. And what that basically does is this: It 

changed the burden of proof from the government proving that it 

has a compelling need to intrude into the family and instead puts 

the family as bearing the burden of proof to justify that its reason 

to object to the government program is sufficiently warranted. That 

changing of the burden of proof from a nonfundamental right to a 

fundamental right is a huge difference in outcomes in cases. And 

it basically answers this question, who has the primary authority 

over the child? If it is a fundamental right, primary authority lies 

with the parent. If it is a nonfundamental right, primary authority 
47 

lies with the government. It is as simple as that, and in actual 

practice, that is how it works. 

The Littlefield case should have been resolved, if they wanted to 

reach the outcome and not destroy the fundamental rights test, by 

simply saying there had not been an adequate burden shown by 

simply requiring the kids to have a dress code adherence in the 

public schools. And on that point, the idea that section 2 of the 

amendment would disable the public schools, people haven’t read 

it carefully. It says the parental right to direct education includes 

the right to choose public, private, religious or home schools and 

the right to make reasonable choices within public schools for one’s 

child. It doesn’t give you the right to change the curriculum for everybody else, but if you don’t want your child going to the sex ed 

assembly, you would have the right to make a reasonable choice for 

your child. And so the ability to make choices for other people’s 

children is not protected. 

Mr. FRANKS. Ms. Wright, I am going to try to squeeze in a question with you. Who makes the decision does, indeed, seem to be the 

real choice here, the real question, because one of two people will 

make decisions on how a child will be educated or what their upbringing will be. It will either be a parent who would pour out their 

blood on the floor for them or a bureaucrat who doesn’t know their 

name, and I find that to be pretty profound. 

Ms. Wright, the U.S. Constitution recognizes that international 

law in the form of a ratified treaty becomes part of the supreme 

law of the land, limited only by explicit constitutional provisions 

and safeguards. Treaties adopted by the United States are supreme 

over State laws according to the Constitution. So can you tell me 

more about how the U.N. Convention on the Rights of the Child, 

how it operates and how it could threaten American families if it 

were ratified? 

Ms. WRIGHT. Thank you. The United States has not ratified the 

Convention on the Rights of the Child for a very good reason. It 

comes from a different perspective than Americans’ perspective. We 

truly believe in parental rights and the role of the parents because 

parents know their children best. Convention on the Rights of the 

Child comes from the child’s right perspective that officials or experts can know better than parents. So there is good reason the 

United States has not ratified it. But what is particularly concerning is that we have had government officials look to the Convention on the Rights of the Child to corroborate their own opinions, like what happened in the Roper decision. 

The Supreme Court in a sense validated the point of view of the 

Convention on the Rights of the Child. Now, it is the step by step 

process that I explained in my testimony that is particularly concerning, that these treaties like the Convention on the Rights of 

the Child set up a committee of so-called experts. They are experts 

just because they are knowledgeable on the subject of the committee, and they are selected to sit on this committee. They have 

taken it upon themselves to—they have the ability to interpret the 

treaty, but they have taken it upon themselves in too many cases 

to misinterpret or reinterpret the treaties. 

Then the agencies like UNICEF take those interpretations, take 

those opinions, and validate them in papers, in guidance to coun-
48 

tries, assuming that these interpretations are now new rights and 

telling countries how to implement, how to apply those rights reflected in their laws and their cultures. 

So Americans are generally pretty leery of the United Nations, 

especially when it gets involved in domestic issues. People are not 

quite as aware of this step-by-step process that is already occurring 

to misinterpret the treaties even further than what Americans are 

already concerned with. 

Mr. FRANKS. Thank you, Ms. Wright. 

And I would now recognize Mr. Cohen for 5 minutes. 

Mr. COHEN. Thank you, Mr. Chair. 

Mr. Farris, first, let me ask you, I was reading the article, proposed article, section 2, the parental right to direct education includes the right to select public, private, religious or home schools, 

and. Is there any issue right now with any State prohibiting a parent from choosing a public school, private school, a religious school, 

or home school? 

Mr. FARRIS. Not today. As recently as 5 years ago, California, the 

Court of Appeals—— 

Mr. COHEN. Five years ago. 

Mr. FARRIS. Currently, but there are proposals on the table. The 

National Education Association, for example, has standing resolutions to ask that home schools be regulated under a way that effectively bans home schooling, and if that political proposition—— 

Mr. COHEN. You are a great proponent of home schools. Have you 

ever testified on home schools in Tennessee—— 

Mr. FARRIS. I think I have, yes. 

Mr. COHEN. I am trying to remember. And I supported home 

schools. I got an award from the home schoolers, in fact. I worked 

for 20 years in Tennessee to create a Tennessee State education 

lottery, and most of the people that support home schools or many 

of them opposed that amendment because they thought if it passed, 

that we were going to have Biblical proportion type events, with locusts descending on our State and rivers doing like—and all kind 

of terrible things happening and lack of oranges and all those 

things. But none of them happened, and when the amendment 

passed, the home schoolers are the first people at my office wanting 

to get their kids lottery scholarships, and I helped them. And they 

gave me an award. And I am not against home schoolers. 

But I am not also for amending the Constitution unless it’s necessary. Now, we amended our State Constitution to do that, and we 

helped a lot of home schoolers get scholarships to go to colleges. 

But there is no problem here. You said 5 years ago, there was a 

problem, but there is not a problem today. Why should we amend 

our Constitution for problems that were 5 years old and don’t exist 

anymore? 

Mr. FARRIS. The narrow question you asked me is whether or not 

people are being banned from making those fundamental choices. 

The answer is no. Are they being punished for making those 

choices, the answer is yes, they are. 

Mr. COHEN. Let me ask Ms. Ross. The second part of that 

amendment is the right to make reasonable choices within public 

schools for one’s child, the parental right to make reasonable 
49 

choices within public schools for one’s child. How would that affect 

public education if that—— 

Ms. ROSS. Well, every parent has different views about what is 

appropriate and what is not appropriate for their children. And I 

have always pointed out that parents don’t come in one dimension 

with one set of values. So that means that every parent would be 

going into school and saying, I don’t like the reading that is assigned next week. I don’t want Johnny reading that. While it is 

true that they can’t on the surface affect what every child learns, 

I want to emphasize that this is not going to be limited to sex education, which is what we usually think of. It is already a prevalent 

problem with respect to the teaching of basic scientific theory and 

biology, but it also comes into play with art history. There may be 

naked bodies that some parents object to. There may be parents on 

the other side of the spectrum who say, I don’t want my kids hearing a conservative interpretation of American history. How is the 

school supposed to operate? 

Mr. COHEN. We are having that now in Tennessee. They just 

want to have happy history and not really history, and they don’t 

want to talk about slavery because that is not happy history. They 

just want to talk about happy history. It is really challenging. It 

is really kind of strange. We don’t really, when you get down to the 

fundamentals, there are a lot of things happened in our great country that weren’t so wonderful. I mean, slavery was the worst thing 

that people could really think of, next I guess to executions, and 

we had that for 246 years. Some people don’t want to teach it because that is unpleasant. 

Ms. ROSS. It doesn’t put us in a good light. 

Mr. COHEN. It doesn’t put us in a good light, right. So there is 

a whole bunch of that stuff. 

How would this affect—would this amendment possibly allow a 

parent to maybe deny vaccinations for their child and/or treatment, 

life-saving treatments, or maybe even allow a parent to give their 

child alcohol or drugs against the laws of the State? 

Ms. ROSS. I think if taken really seriously, there could be court 

cases in which parents claim that this is beyond the government’s 

power. I think each of the examples you used, the government 

could make a clear case that there was a compelling interest, but 

we shouldn’t have to reopen these very fundamental issues. 

Mr. COHEN. Ms. Wright, your group deals with religion. What if 

a group thought peyote was a part of their religion—and there are 

still such folks that get a religious experience therefrom—and 

wanted their children to partake in this experience and have a 

group religious experience. Would this amendment protect people 

for giving their children peyote, would it not? 

Ms. WRIGHT. I would not address that issue. I am not an attorney, so I don’t feel qualified to address that. 

Mr. COHEN. Mr. Farris, you are an attorney. Would you feel comfortable? This would say the parents have a right to give their children peyote. 

Mr. FARRIS. I think the government would have a compelling 

governmental interest in that case that would be sufficient to overcome. 

Mr. COHEN. Why? 
50 

Mr. FARRIS. Why? Because I think the showing could be that peyote would harm the child, and that would be the standard. 

Mr. COHEN. What if it was marijuana? The government couldn’t 

show that marijuana would necessarily harm the child. 

Mr. FARRIS. That is, you know, there are whole States all mixed 

up on that. I think that marijuana is harmful. 

Mr. COHEN. For children it is, but some parent may not think 

that. But you are giving the parents the right to decide that. 

Mr. FARRIS. Right. I am sorry. I didn’t mean to interrupt. 

Mr. COHEN. Well, I have interrupted you, I guess. But you are 

giving parents the right to decide that. 

Mr. FARRIS. No. The lawsuits that you proffered, anybody can 

sue about anything, and it doesn’t mean they are going to win. So 

you do drafting by lawsuits that are predictably winnable. I don’t 

think that any of the parade of horribles that—Ms. Ross gave a 

careful answer. Parents could file such lawsuits. That is true. They 

could file such lawsuits. Would that be given the light of day? No, 

they wouldn’t be given the light of day. 

I litigated a case a couple years ago in Michigan which has a 

statute that tracks this language almost exactly, Michigan’s Parental Rights Statute. It was a medical neglect case where a little boy 

had Ewing sarcoma, and in that case, the evidence was not clear 

whether the boy was sick, and the drugs they wanted to give him 

were not clear that they were safe and effective. We argued it was 

the gray zone. Who makes the decision when it is a gray zone? If 

it was clear that this boy was sick and the medicine was safe and 

effective and they refused to give it, the government would have 

the right to override. But when it is not clear that the boy is sick 

and when it is not clear that the medicine is safe and effective, who 

decides then? That was the case we litigated, the case that I won 

in the trial court, using a statute just like this that said parents 

decide in those kind of close cases. That is the outcome we would 

see under this language. 

Mr. COHEN. My time having expired, and the Chairman is being 

very liberal with my time. I yield back the balance that I don’t 

have. 

Mr. FRANKS. Thank you, Mr. Cohen. 

I now recognize Mr. DeSantis, the gentleman from Florida. 

Mr. DESANTIS. Thank you, Mr. Chairman. 

Mr. Farris, what protections for parents are included, if any, in 

any State constitutions? Is that something that you have looked at? 

Mr. FARRIS. I have looked at it. I haven’t looked at it in the last 

couple of weeks, but I am pretty sure that Oklahoma is the only 

State that has a State constitutional protection. There is a movement in Missouri. I believe the Missouri legislature looked at it. I 

don’t know whether it passed, but I don’t think it has gone to a 

vote of the people yet. 

Mr. DESANTIS. I mean, it seems to me just thinking through 

some of the issues raised—let’s put aside international treaties. It 

seems the lion’s share of issues that would come up with this would 

be based on local or State action, as opposed to Federal. Do you 

agree with that? 

Mr. FARRIS. That is correct, but the international component of 

this is not insignificant. And so the design of the Parental Rights 
51 

Amendment is to answer the parental rights issue once and for all 

while we still have societal consensus on the issue. And with the 

Convention on the Rights of the Child and the other things, which 

overrides State constitutions and under the explicit language of the 

supremacy clause, any conflict between the CRC and the constitution of Oklahoma, the CRC will prevail in American courts. 

Mr. DESANTIS. Understood. Now, with respect to the treaty and 

how that would prevail, if you just had the first four sections, you 

wouldn’t need section 5, would you? In other words, if something 

is in the Federal Constitution, you cannot—the Senate cannot infringe on the Constitution by ratifying a treaty. Now, I know there 

are cases out there, and there are some people who, but the way 

the Constitution is supposed to work, you cannot legislate around 

the Constitution by treaty. Correct? 

Mr. FARRIS. Correct. The reason that section 5 is in there is in 

my course work in getting an LLM in Public International Law 

from the University of London, I wanted to take into account the 

eventuality that we end up in an international court. In an international court, our Constitution is secondary to treaties, unless the 

treaty is in conflict with a provision of the Nation’s Constitution, 

and it goes to the capacity to enter into the treaty. So I wrote section—I drafted section 5 with a design to trump treaties, even if 

we end up some day in an international tribunal like the tribunal 

that is being created by the Committee on the Rights of the Child, 

the optional protocol that exists today. That was the reason for section 5. 

Mr. DESANTIS. Okay. Got you. In terms of section 2, this reasonable choices, and this may be, there may be background law for 

this, I just don’t know. For example, on the Fourth Amendment, 

unreasonable searches and seizures, that had a common law context and people kind of knew what that meant, because I have 

heard some of the back and forth here, is there kind of a body of 

objective standards that we would see what is a reasonable choice? 

Because it seems like some people would think something is reasonable, and others would say that that is not reasonable. 

Mr. FARRIS. There have been a great number of cases that have 

been litigated about opting out of various programs in the public 

schools. I litigated one of those myself in Tennessee about 30 years 

ago, it seems like. And the courts have a record of what is reasonable and what is not reasonable. But in the last 10 or 15 years, we 

have moved away from that standard and to the standard of saying, you don’t have the right to object to what your child learns in 

the public schools at any time for anything. 

Mr. DESANTIS. And so if this were ratified, are you confident 

there would be an objective meaning to that that would be understood by society that could be applied in different cases? 

Mr. FARRIS. Yes, I do believe that. The attempt has been at this 

stage, obviously, drafting changes could be made if there is a need 

for clarity on any point, but the attempt has been made to use 

terms of art that have a recognized history behind them where we 

know what they mean. We know that a governmental interest as 

applied to the person is of the highest order and not otherwise 

served. There are hundreds of cases about all that terminology. 

Those are recognized terms of art. It is literally word for word out 
52 

of Yoder. And so what I was trying to do in helping to draft this 

was to make sure that we are using the very language that the 

courts have recognized so that we are walking on carefully plowed 

ground, not on new ground. 

Mr. DESANTIS. Thank you for that. 

Ms. Ross, just a little piece that I noticed in your testimony that 

I disagreed with. You write, since 1791, no amendment has been 

adopted that was designed to entrench current understandings of 

the law into the Constitution. And I noticed you used the words 

‘‘since 1971,’’ but I mean, the Bill of Rights in 1791, wasn’t that the 

whole purpose that they were trying, you used the words ‘‘entrench,’’ I would say enshrine, current understanding of the rights 

that the Founding Fathers believed were part and parcel of what 

it meant to be, before in the colonial times, the rights of a Englishman, and that reflected that common law tradition, and they did 

want to enshrine that so that they would protect it in the future 

so that those protections would endure. In case society changed, 

they wanted that to be anchored into the Constitution. 

Ms. ROSS. That is an excellent point. And yes, you are right. But 

there is a story behind that, which is the debate among the Founders, between Madison and other Founders, about whether the Constitution had to expressly reserve the rights that everybody assumed they already had as Englishmen. 

Mr. DESANTIS. No, I understand that, and that was a very important—— 

Ms. ROSS. Right, and that was a tradeoff in order to get enough 

of the colonies to—former colonies to ratify the Constitution. It was 

not suggested that after that time, every time there was a right 

that people thought they had, they would need to put it in the Constitution. We have never seen that happen since 1791. 

Mr. DESANTIS. But the fact that they did do that, I just think 

it cuts against your point because Hamilton’s argument in the Federalist was that the Constitution of itself is a Bill of Rights. You 

don’t need a special bill of rights because it is a government of limited and enumerated power, so you don’t need to say that you can’t 

establish a national religion because you have no affirmative 

source of authority to do that. So the fact that they went back and 

did the Bill of Rights, to me would suggest that even if there is 

precedent for certain rights, they felt the need to codify it into the 

Constitution. 

So, I mean, take your point. I think you have made some good 

points. And I am somebody who I do support some constitutional 

amendments, but I think we need to approach this in a very judicious way. But it seems to me, and I would even say the 22nd 

Amendment in some sense, there was a longstanding tradition that 

had been broken by FDR, and then people went to codify that, but 

I appreciate your testimony. 

I am out of time, so I will yield back to the Chairman. 

Mr. FRANKS. And I thank the gentleman. 

And I would now recognize the gentleman from Virginia, Mr. 

Scott for 5 minutes. 

Forgive me. We will recognize Mr. Conyers for 5 minutes. 

I am so sorry. Forgive me. Forgive me. We recognize Mr. Conyers 

for 5 minutes. 
53 

Mr. CONYERS. I don’t mind yielding to—— 

Mr. FRANKS. Mr. Conyers had given an opening statement, and 

I sort of assumed that he had taken his turn, but he hasn’t. 

Mr. CONYERS. I will be relatively brief. 

Let me ask Ms. Ross this question. Ms. Wright maintains the Supreme Court’s decision in Roper v. Simons finding that death penalty for juveniles would be unconstitutional is the reason why the 

U.N. Convention on the Rights of the Child threatens the constitutional liberty of parents to make child-rearing decisions. 

How do you interpret this issue? 

Ms. ROSS. Well, Ms. Wright herself has agreed and conceded that 

the committee that is charged with supervising the implementation 

of the Convention on the Rights of the Child has no enforcement 

powers. No enforcement powers. That means the committee cannot 

go after the United States in its own forum, in any international 

court that exists today, in domestic courts. So I don’t see how the 

U.N. convention could limit the rights of parents in the United 

States. 

With respect to what she said about the Court taking cognizance 

of what other countries do in terms of the death penalty and minors and—for acts committed while they were minors, there is a 

special place in Eighth Amendment jurisprudence that is not found 

anywhere else. We have a tradition of the Court looking at what 

other countries do to try to assess the evolution of the sense of decency. 

Mr. CONYERS. Ms. Wright, as a leader in the Center for Family 

and Human Rights Institute, do you have a response, or is there 

anything you would like to add? 

Ms. WRIGHT. Yes, and thank you for the opportunity to respond. 

As I pointed out in my testimony, the interpretations of the committee do not have any binding authority. Even the committee 

members admit that. 

The problem comes when government officials, U.S. Government 

officials, give these opinions some sense of authority, looks to them 

for guidance, and—and that has already occurred. That is—that 

was my reference to the Roper case, is that we even have some Supreme Court Justices who have looked to these treaties—in fact, a 

treaty that we have not even ratified—as if it provides some guidance for us. And that is why people have concerns. It is because 

of the actions of government officials that have caused parents and 

others to have concerns that these officials will look to foreign 

sources for authority as opposed to relying on the American Constitution, American statutes, American values. 

Ms. ROSS. I think you are just over—I am sorry. Ms. Wright is 

overlooking what I said about the special jurisprudence for the 

Eighth Amendment, which has always looked internationally. I 

don’t think there are other good examples. 

Mr. CONYERS. Now, Attorney Ross, Mr. Farris acknowledges that 

no constitutional rights, even fundamental ones, are absolute. But 

what are some of the instances where we ought to be wary of making it too hard for a State to become involved in the parent-child 

relationship? Could you comment on that? 

Ms. ROSS. I am sorry. I missed the last part of that sentence. 
54 

Mr. CONYERS. Yeah, what are some of the instances where we 

should be wary—— 

Ms. ROSS. Oh. 

Mr. CONYERS [continuing]. Of making it too hard for a State to 

become involved in the parent-child relationship? I wanted to ask 

you that. 

Ms. ROSS. Yes. Well, let me begin by just saying something about 

two of the cases that Mr. Farris used in his testimony today. 

Littlefield, the school uniforms case, and Jacobs, the case that he 

added in his testimony for this year involving school uniforms, the 

Court actually said that there was a compelling government interest, even though that wasn’t the standard that it needed to use, in 

school safety and orderliness. And the Court also in Jacobs characterized this sort of dispute, and I am paraphrasing here, but as 

kind of administrative skirmishes between parents and school systems that did not implicate fundamental rights. So I think the use 

of that was not entirely on point. 

In Jonathan L., the case that Mr. Farris helped to litigate, that 

received a big victory in the California law, which had previously 

been understood to bar home schooling unless the instructors were 

certified, and there the court said, no, actually, you have to allow 

home schooling, but the case was about dependency in a case 

where the family had been involved with protective services for 20 

years. And there had been sexual abuse and physical abuse, and 

the trial court, dependency court, said these children have to be in 

public school so that there are mandated reporters who have contact with them and can protect them from grave danger. That is 

really what the case is about. 

Mr. CONYERS. Thank you. 

Thank you, Mr. Chairman, for your time. 

Mr. FRANKS. The gentleman from Ohio, Mr. Jordan, is now recognized for 5 minutes. 

Mr. JORDAN. I thank the Chairman for this hearing, and I will 

be brief. I have to—I apologize for being late, and now I am leaving 

early. The typical schedule around here. 

But I just came to thank Ms. Wright and Mr. Farris for their 

work on this issue and a host of others. We home schooled our children—well, I use the term ‘‘we’’ lightly. My wife did all the work, 

but we home schooled them, and we used to write $100 check to 

Mr. Farris’ organization, I remember, when being involved in the 

Home School Legal Defense. So we appreciate tremendously the 

work you have done in standing up for the rights of families and 

parents and appreciate you being here today and offering your testimony. 

Ms. Ross, I don’t know you, or I would have said something nice 

about you, too, but I appreciate Mr. Farris and what he is working 

on and Ms. Wright. 

And, Mr. Chairman, I have got to run to a quick meeting, and 

be happy to yield to the Chairman if he needs some time. 

Mr. FRANKS. Thank you. I will go ahead and take the time, then. 

Thank you, Mr. Jordan. 

Mr. Farris, did you have a follow up? 

Mr. FARRIS. Yeah, I would to correct the record on the Jonathan 

L. case. The Jonathan L. decision was not the—Ms. Ross simply 
55 

doesn’t know the facts. The facts were that the family won in the 

trial court, and that the trial court had said that the right to home 

school was an absolute right, and that got the attention of the 

court of appeals. The court of appeals and—in a dependency matter, where I was not counsel, was unaware of it, no home schooler 

was aware of it, ruled not only that this family shouldn’t home 

school, but nobody in California should be allowed to home school, 

and so the rehearing was about that second issue, was whether 

anybody in California should be allowed to home school, and that 

was the issue that I litigated. I did the oral argument on the constitutional issues in that case on—on the right of people in general 

in California. So trying to read that case as case specific to that 

family is not correct. 

The other thing that is important to note, you know, she has focused in the Littlefield case as an example, the New Jersey case 

as an example, of even if the court does say in passing, this also 

happens to meet the fundamental rights analysis, the fact is, and 

we have to stare directly in the face, they say the correct legal 

standard is to treat parental rights as a nonfundamental right. 

That is the holding of the Fifth Circuit. That is the holding of these 

other courts. And so their argument in the alternative that, in this 

particular case, it would even meet the other standard doesn’t 

change the fact that they have changed the standards, and so the 

reality. The other thing is that on the international debate between 

Ms. Wright and Ms. Ross, it has not been limited to the Eighth 

Amendment that they have used, the Convention on the Rights of 

the Child. The Federal District Court in the Southern District of 

New York on two occasions has ruled that New York State practices were improper and void as a violation of the Convention on 

the Rights of the Child, which was binding on the United States 

under the doctrine of customary international law. 

A Federal district judge in Philadelphia used a protocol—an optional protocol to the Convention on the Rights of the Child to rule 

in a—that that treaty was binding on the United States as customary international law, and neither of those cases were in the 

Eighth Amendment context. One was an immigration case where 

there—a parent could be deported, leaving behind a citizen child. 

The case in Philadelphia was about an American citizen who went 

and did sexual—sex trafficking in Moldova or some place like that. 

And he should have been hammered, and the court got the right 

answer, but they shouldn’t have used customary international law 

to get there, and so the reality is our Federal courts are actively 

integrating these treaties as customary international law binding 

upon the United States. The Supreme Court hasn’t said so yet, but 

the Federal lower courts are doing it every day. 

Mr. FRANKS. Mr. Farris, I have got just another minute here. 

One of the more significant issues here in my mind is whether 

or not the parents’ rights are treated as fundamental. You have 

emphasized that in a tremendous way, and, of course, this is what 

the courts, even though they perhaps have come to the right decisions in the long run in changing this scrutiny, this test, it occurs 

to me that we might look to see if there are cases out there or other 

instances out there where the diminishment of this scrutiny, 

what—do you know of any other tests or cases that are out there 
56 

or anything like that where they are taking advantage of this diminished scrutiny? Any one. 

Mr. FARRIS. Yes, I can supplement the record with a list of cases. 

The fairest way to describe—in fact, if you look at the legal literature as well—is we are in disarray. We are in a state of flux. 

The courts don’t know what the correct standard is. Troxel was a 

splintered case with six different opinions, and the California Court 

of Appeals reviewed it. So, you know, we can all opine on what we 

think it means, but in practice, the courts are looking at it, and 

they are opining on what they think Troxel means, and the courts 

are concluding that Troxel has jettisoned the fundamental rights, 

strict scrutiny standard. Only one Justice, Justice Thomas, used 

the strict scrutiny standard, and—in that case, and, you know, Justice Scalia said these are not legally protected rights at all, and 

so—and there is a growing body of judiciary—members of the judiciary that agree with that. So we are—we are in real trouble if we 

apply reasonable projection to where we are going and looking at 

the signs what the judges are saying. 

Mr. FRANKS. Thank you. 

And I would now recognize, finally, the gentleman from Virginia, 

Mr. Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. Farris, it is my understanding of your testimony that you believe that the standard—that the parental rights are in fact protected, but the only question is whether that decision is made on 

the basis of strict scrutiny or intermediate scrutiny or rational 

basis, but basically, the rights are there. 

Mr. FARRIS. Correct. If it is a nonfundamental right on the rational basis test or limited scrutiny, it is the same as the right to 

own a blue car. Or, you know, it is a basic liberty interest that everybody has for every decision in their life, and I think the parental 

rights deserve a higher protection than a nonfundamental rights 

standard. 

Mr. SCOTT. And you are going to provide us with cases where the 

fundamental right was not protected? 

Mr. FARRIS. Yes. We can provide you with additional cases. My 

2012 testimony gave you about 25 of those, and I can supplement 

that with additional ones. There are a few in my testimony today, 

but the fairest example is that it is confused, and there is a lot of 

confusion out there—— 

Mr. SCOTT. Are there any cases where the parental rights coincided with the best interest of the child and those rights were not 

protected? 

Mr. FARRIS. Well, Mr. Scott, no, because the best interest of the 

child is not an answer to a what question, what is in the best interest of the child, even though we think of it that way. It is a who 

question. The best interest of the child is essentially a dispositional 

standard in our system in that we don’t get to the best interest 

standard, if we are going to follow traditional rules, until after 

there has been a predicate finding that the parents have harmed 

the child or the marital relationship is broken. There has got to be 

something broken about the relationship before you impose that 

standard. 

There is a Washington case—— 
57 

Mr. SCOTT. You mean if the parents are doing something that is 

not in the best interest of the child, when should that be protected? 

Mr. FARRIS. Mr. Scott, the best interests of the child standard 

is—the way it has traditionally worked, step one, you make a finding that the parent has harmed the child, and when that happens, 

then the parent’s right to make the decision is forfeited, or at least 

limited. At that point, then the court steps in and says, what do 

I think is in the best interest of this child? This parent is forfeited 

in the medical care of this child. Now I have got to decide is it this 

doctor or that doctor or another doctor, and it is—and it is a decision about who makes the decision, and so if the parent refused to 

get the child medical care and they clearly had cancer, as an example, the judge is not only going to say, you’ve got to have treatment. 

The judge is going to pick the doctor, because he has to at that 

stage. 

Mr. SCOTT. Well, let me back up a step, because we are kind of 

slipping on this. 

Are there any situations where the best interest of the child are 

being violated and this constitutional amendment will protect the 

violation of the best interest of the child? 

Mr. FARRIS. Mr. Scott, I don’t mean to be contentious, but the 

best interest of the child is not a standard that is the kind of standard that you violate or not. It is an implementation standard. It is 

saying, should I send the child to this—— 

Mr. SCOTT. Well, we are going to have to disagree on this, because if you are violating the best interests of the child, either this 

constitutional amendment will protect those—that violation or it 

will not. 

Mr. FARRIS. The way I would word it, Mr. Scott, is that if the 

parent is harming the child, this amendment will not allow parents 

to harm their children. And the—— 

Mr. SCOTT. Where is that in the constitutional amendment? 

Mr. FARRIS. Where does it say that? 

Mr. SCOTT. Yeah. 

Mr. FARRIS. In section 3, that the government interests of the 

highest order. That is the recognized traditional standard. When 

can the government override the wishes of the parent? When there 

is an interest of the highest order. Child abuse is an interest of the 

highest order. The government can intervene for child abuse or neglect. This is right out of Yoder. This has been the law for a long, 

long time, and the child welfare system works just fine in ferreting 

out—well, usually works fine, but the principles work fine even if 

all the factual cases don’t work out that well, and so then all we 

are doing is enshrining the—— 

Mr. SCOTT. Let me just get back to the basics. If the parents are 

violating the best interests of the child, this constitutional amendment will have no effect. Is that your—— 

Mr. FARRIS. If the parents are harming the child, this amendment will have no effect. 

Mr. SCOTT. Okay. Ms. Ross, is that your reading of the amendment? 

Ms. ROSS. No. First of all, we would have to define ‘‘harm.’’ That 

will not be an easy matter. The Yoder standard came up under religious exercise, the quote with which the Chairman—Mr. Chair-
58 

man, opened the hearing was directed to religious exercise. That is 

no longer the constitutional law since the Supreme Court’s 1990 

decision in Smith, and I think that some part of the motivation behind this amendment may be dissatisfaction with the lesser protection accorded under the exercise clause, which used to give parents 

a lot of room to determine the needs of their children that might 

or might not serve best interests. 

I also want to say in response to your question that more than 

40 percent of the children in the United States today are born outside of marriage. We have no reason to assume that their parents 

will be able to agree on anything about how to raise these children. 

And the amendment does not deal with that social reality, because 

between two parents who disagree about how to educate their 

child, whether the child should see a doctor alone, any number of 

disputes that an intact family gets to make without intervention so 

long as the child is not harmed, somebody is going to have to break 

those ties, and that somebody is, unfortunately, very likely to be 

a judge under our entire framework of family law. 

Mr. FRANKS. Thank you, Mr. Scott. 

I now recognize Mr. Johnson for 5 minutes. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

Language in the resolution states the following, ‘‘The amendment’’—well, no, not quote, but the amendment states, ‘‘Shall not 

be construed to apply to a parental decision that would end life.’’ 

Does that part of the statute that you are proposing, sir, does 

that assume that life begins when the sperm fertilizes the egg? 

Mr. FARRIS. Mr. Johnson, I had a hand in drafting this language 

overall. I did not have a hand in—I was not the force behind this 

particular section, that was the National Right to Life Committee 

that insisted on this being added. 

Mr. JOHNSON. And what that means, because it is premised on 

the assumption that life begins when the sperm fertilizes the egg, 

is that—— 

Mr. FARRIS. Whether—whether it does or not, the—what the—— 

Mr. JOHNSON. Well, would you give your legal opinion to us as 

to whether or not it is based on that assumption? 

Mr. FARRIS. The committee can make the record so the original 

meaning of the text can be ascertained. I don’t know. 

Mr. JOHNSON. Okay. Let me ask you—— 

Mr. FARRIS. But let’s assume that it does. Let’s make that assumption. 

Mr. JOHNSON. If we assume that it does, then it would ban—it 

would not enable a woman to make a choice to terminate a pregnancy. 

Mr. FARRIS. No, Mr. Johnson, with all due respect, what this is 

saying, it ‘‘shall not be construed to apply,’’ meaning if you are 

going to make decisions about abortion, you got to look to other 

sources of law. It is take—the intention behind this is to take the 

abortion issue out of the zone of this amendment. It is designed to 

say, Kings et—— 

Mr. JOHNSON. Well—— 

Mr. FARRIS [continuing]. This doesn’t apply. 

Mr. JOHNSON. What it actually says is that if life begins at conception, assuming that—— 
59 

Mr. FARRIS. Right. 

Mr. JOHNSON [continuing]. Is the case, then this amendment 

would specifically exclude the power of a parent to terminate a 

pregnancy. It would grant a parent more power than parents have 

now, but it would restrict the ability of a parent, assuming that life 

begins at conception, it would keep a parent—or it would consistently allow a rule that would ban a parent from exercising their 

rights, even two parents, deciding that a fetus should not be taken 

to term for some reason, just like Wendy Williams down in Texas 

running for Governor—— 

Mr. FARRIS. Mr. Johnson, I assure you that that is not the intention. If this language does not accomplish that objective—— 

Mr. JOHNSON. But that is what the language says. 

Mr. FARRIS. The language says, It shall not be construed to 

apply, meaning that this article, the whole section, is inapplicable 

in the area of abortion. That was the intention behind it. And if 

it doesn’t say that—— 

Mr. JOHNSON. Well, it would provide for an exclusion from the 

protection to parents that this amendment to the Constitution 

would offer in so far as it would exclude a parent’s ability to terminate a pregnancy. 

Mr. FARRIS. With all due respect, I don’t read it that way. That 

is not its intention. What it would do, it basically says if you are 

arguing that a parental consent law should be supported, this 

amendment won’t help you, because we have excluded the subject 

matter. It is intended to be a subject matter exclusion, and if 

your—if we can win your vote on clarifying this language, I know 

that we can clarify the language to your satisfaction. If that is the 

only problem that we have got, we can fix it so that—that—because 

what you want—what you appear to want and what I appear to 

want on this issue is we don’t want this amendment entering into 

the abortion discussion at all. 

Mr. JOHNSON. Well, it is. I view it as a poison pill to the passage 

of this particular resolution for those who believe that women 

should have a right to choose. 

Mr. FARRIS. I would hope that we could find language that would 

accomplish our mutual objective. I don’t want this amendment getting wrapped into the abortion dispute one way or the other. 

Mr. JOHNSON. Well, by giving the National Right to Life group 

the ability to insert this clause into the legislation has done exactly 

what you don’t want it to do. 

Mr. FARRIS. I understand. 

Mr. JOHNSON. I would also ask whether or not that same language, does it mean that parents wouldn’t have the right to determine whether or not to take their child off of life support? 

Mr. FARRIS. It would—it would say that you have to look to other 

sources of law on that question. That is what it is intended to say, 

and so if State law or Federal constitutional law of another sort or 

another source answers the question, then that is where you look 

to find the answer. It is intended to not give an answer one way 

or the other on life-ending decisions, whether they are prebirth or 

post birth. It is intended to say, We are not dealing with that subject matter. 
60 

Mr. JOHNSON. Well, again, you are granting parents some rights, 

unspoken rights, with this constitutional amendment, but at the 

same time, you are excluding a category of parental rights that has 

already been well entrenched in the law. 

Mr. FARRIS. Right. We are trying not to affect that area of law 

and let that area of law develop independently and on its own. If 

that changes—you know, if Rowe v. Wade is repealed by judicial 

decision or by acts of Congress, that happens on its own. We are 

trying to stay out of that fight. 

Mr. JOHNSON. I don’t see how you can do it with the legislation 

as written. I just really—— 

Mr. FARRIS. I wish it wasn’t there, but I don’t think it means— 

it certainly does not—it is not intended to mean what you are— 

what you are wondering. 

Mr. JOHNSON. Well, that is a clear—— 

Mr. FARRIS. If we can fix the language—— 

Mr. JOHNSON. A clear reading of the language, I believe, would 

support my interpretation of it. I don’t see how it could support any 

other—there is no other reasonable analysis. 

Thank you, Mr. Chairman. 

Mr. FRANKS. Yes. Thank you, sir. 

And, you know, this is a subject of profound importance. You 

know, more than any other mortal paradigm, I suppose, the ideals 

and information educationally, spiritually, academically, the ideals 

that we inculcate in the hearts and minds of our children dictate 

the future of the human race in the most profound way. And so it 

is a subject of great importance. And the real question here that 

has been examined is who has the primary and fundamental right 

to inculcate those principles and that education and those truths. 

And we had better choose carefully, because the implications have 

an expressible gravity. 

And with that, I would thank all of the panelists for joining us 

today. Very interesting hearing, to say the least. 

Without objection, all Members will have 5 legislative days to 

submit additional written questions for the witnesses or additional 

materials for the record. And, again, I want to thank everyone that 

joined us today and all the audience, and this hearing is adjourned. 

[Whereupon, at 3:29 p.m., the Committee was adjourned.] 
(61) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD
62 
63 
64 

f 
65 
66 

f 
67 

f 
68 

Material submitted by the Honorable Steve Cohen, a Representative in 

Congress from the State of Tennessee, and Ranking Member, Subcommittee on the Constitution and Civil Justice 
69 
70 
71 
72 
73 
74 
75 
76 
77 
78 
79 

Æ