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

PARENTAL RIGHTS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

SECOND SESSION 

ON

H.J. RES. 110 

JULY 18, 2012 

Serial No. 112–138 

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 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

MARK AMODEI, Nevada 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

JARED POLIS, Colorado 

RICHARD HERTLING, Staff Director and Chief Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION

TRENT FRANKS, Arizona, Chairman 

MIKE PENCE, Indiana, Vice-Chairman 

STEVE CHABOT, Ohio 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

JIM JORDAN, Ohio 

JERROLD NADLER, New York 

MIKE QUIGLEY, Illinois 

JOHN CONYERS, JR., Michigan 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

PAUL B. TAYLOR, Chief Counsel 

DAVID LACHMANN, Minority Staff Director 

(III) 

C O N T E N T S 

JULY 18, 2012 

Page 

THE RESOLUTION 

H.J. Res. 110, Proposing an amendment to the Constitution of the United 

States relating to parental rights ....................................................................... 3 

OPENING STATEMENT 

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

of Arizona, and Chairman, Subcommittee on the Constitution ....................... 1 

WITNESSES 

Michael Farris, J.D., LL.M. Chancellor, Patrick Henry College 

Oral Testimony ..................................................................................................... 6 

Prepared Statement ............................................................................................. 7 

Martin Guggenheim, Fiorello LaGuardia Professor of Clinical Law, New York 

University School of Law 

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

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

Piero A. Tozzi, Senior Legal Counsel, Alliance Defending Freedom 

Oral Testimony ..................................................................................................... 20 

Prepared Statement ............................................................................................. 22 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Material submitted by the Honorable Trent Franks, a Representative in 

Congress from the State of Arizona, and Chairman, Subcommittee on the 

Constitution .......................................................................................................... 46 

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

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

on the Judiciary, and Member, Subcommittee on the Constitution ................ 94 

(1) 

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

WEDNESDAY, JULY 18, 2012 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON THE CONSTITUTION, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to call, at 12:35 p.m., in room 

2141, Rayburn House Office Building, the Honorable Trent Franks 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Franks, King, Conyers, and Scott. 

Staff Present: (Majority) Jacki Pick, Counsel; Sarah Vance, 

Clerk; (Minority) David Lachmann, Subcommittee Staff Director; 

and Veronica Eligan, Professional Staff Member. 

Mr. FRANKS. Pursuant to notice, the Subcommittee on the Constitution meets today to consider H.J. Res. 110, ‘‘Proposing an 

amendment to the Constitution of the United States relating to parental rights.’’ 

The question at the heart of the growing debate over parental 

rights is the same question that was at the heart of the American 

Revolution more than two centuries ago: What is the source of our 

rights? The European model held that God gave authority to kings 

and the government that would hold the rights of men in their 

hands. The Americans reverse engineered this model and recognized the true foundation of human dignity. We held these truths 

to be self-evident, that all men are created equal, and that they are 

all endowed by their creator with certain inalienable rights, and 

that government does not create those rights but merely exists to 

secure them. The State exists to preserve freedom. 

Less than 100 years ago, no American would have believed we 

would ever need to enact laws to protect the rights of parents to 

direct the care and upbringing of their children because this right 

was considered so integral to our way of life and our rule of law. 

The Supreme Court affirmed this fact in its 1925 decision in Pierce 

v. Society of Sisters when it stated: ‘‘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 priVerDate Aug 31 2005 10:25 Oct 16, 2012 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6601 H:\WORK\CONST\071812\75153.000 HJUD1 PsN: DOUGA
2 

mary 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 parental rights as fundamental rights which 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 was threatened however in 2000 

when the U.S. Supreme Court decided Troxel v. Granville. A fourjudge plurality described parental rights as a fundamental, historically, but then declined to use this strict scrutiny test that attaches 

to this status. 

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

governmental intrusions onto parental rights ranging from the 

choice of a school 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 items that 

their children 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 also face 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 decisions 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. 

Section 4 of the PRA ensures that treaties of other forms of international law cannot be used to override or modify parental rights. 

The truths, principles, and knowledge inculcated into the hearts 

and minds of our children dictate, more than any other human factor, the paradigm of America’s future. One of two people will primarily choose the academic, philosophical and spiritual substance 

of what is placed in the hearts of a particular child. It will either 

be a bureaucrat who doesn’t oftentimes even know the child’s 

name, or a parent who would pour his or her last drop of blood out 

on the floor for that child. 

Our answer to the question of how we will answer who that to 

be is one of inexpressible gravity. The purpose of the parental 

rights amendment is to ensure that the American time-honored 

standard which recognizes the liberty of parents to direct the education and upbringing of their children is fundamental. It is placed 

in the actual text of the Constitution as such. Neither shifting Supreme Court majorities or international law would be able to 

change the basic idea that parental rights are examined under the 

high legal standard for the protection of our rights that our Constitution describes as fundamental. 

With that, I yield now to the Ranking Member of the Subcommittee, Mr. Scott, for his opening Committee. 

[The resolution, H.J. Res. 110, follows:] 

3 


RES110-1.eps
4 


RES110-2.eps
5 

*Ranking Member Jerrold Nadler (D-NY), did not submit a statement for this hearing. 

Mr. SCOTT. Thank you, Mr. Chairman. 

I am just sitting in for the Ranking Member who is not able to 

be here, but I would like to ask unanimous consent that his statement be entered into the record.* 

Mr. FRANKS. Without objection. 

Mr. SCOTT. And I thank the witnesses, particularly Dr. Farris, 

for being with us today. 

Mr. FRANKS. All right. Let me just then thank all of the witnesses for appearing before us today. 

Our first witness, Dr. Michael Farris is founder and chairman of 

the Home School Legal Defense Association and founder and chancellor of Patrick Henry College. Since founding the Home School 

Defense Association in 1983, Dr. Farris has helped grow the organization to over 80,000 member families. Dr. Farris has written 

over a dozen books, a constitutional law textbook, and works on 

marriage, parenting, home schooling, political advocacy and religious liberty. 

His daily radio program, ‘‘Home School Heartbeat’’ airs on several hundred stations nationwide. Education Week has named Dr. 

Farris as one of the top 100 faces in education of the 20th century. 

Our second witness, Professor Martin Guggenheim, is the 

Fiorello LaGuardia professor of clinical law at the New York University School of Law, where he has earned his J.D. Professor 

Guggenheim focus on child law, child welfare law, and is the author of numerous articles, including, Ratify the U.N. Convention on 

the Rights of the Child, But Don’t Expect any Miracles, in the 

Emory International Law Review and, Stealth Indoctrination for 

Speech in the Classroom, in the 2004 University of Chicago Law 

Forum. Welcome, sir. 

Our third and final witness, Piero Tozzi, serves as senior legal 

counsel with the Alliance Defending Freedom, or ADF—and that 

name has changed slightly. Since joining the ADF in 2010, Mr. 

Tozzi has focused his litigation efforts on the international human 

rights law. He earned his JD from the Fordham University School 

of Law in 1996. Prior to joining ADF, Mr. Tozzi served as executive 

vice president and general counsel for the Catholic Family and 

Human Rights Institute, or C-FAM, while running its New York office where he lobbied the United Nations on social policy issues and 

established C-FAM’s public interest law firm, the International Organizations Law Group. Welcome, Mr. Tozzi. 

Each of the witnesses’ written statements will be entered into 

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

that time, there is a timing light on the table. When the light 

switches from green to yellow, you will have 1 minute to conclude 

your testimony. When the light turns red, it signals the witness’ 5 

minutes has expired. 

Mr. FRANKS. Before I recognize the witnesses, it is the tradition 

of this Subcommittee that they be sworn, so if you would please 

stand. 

[Witnesses sworn.] 

6 

Mr. FRANKS. I now recognize our first witness for 5 minutes, Dr. 

Farris. 

TESTIMONY OF MICHAEL FARRIS, J.D., LL.M., 

CHANCELLOR, PATRICK HENRY COLLEGE 

Mr. FARRIS. Chairman Franks, Mr. Scott, Members of the Subcommittee, thank you so much for holding this hearing and for 

your leadership on this issue. 

In 1990, in the case of Employment Division v. Smith, the Supreme Court made a ruling that undercut our long-standing legal 

standard for the protection of the free exercise of religion. Shortly 

thereafter, under the leadership of this Committee, Congress introduced the Religious Freedom Restoration Act. I had the privilege 

as serving as the co-chair of the drafting committee for RFRA, and 

the even greater privilege of working closely with the Members and 

staff of this Committee in the passage of RFRA. 

Mr. Nadler played a key role in the successful passage of RFRA, 

and I would be remiss if I failed to mention the important role that 

staff counsel, David Lachmann, performed in the effort to preserve 

religious liberty for all Americans. 

RFRA received the ultimate form of bipartisan support, since the 

bill passed unanimously in the House, and I guess it was 97–3 in 

the Senate. 

The situation our country faced with regard to RFRA is a perfect 

parallel to the situation we face today with regard to parental 

rights. There is overwhelming support in our Nation for both the 

free exercise of religion and the traditional right of parents to direct the upbringing, care and education of their children. 

A 2010 Zogby poll found that 93.6 percent of Americans believe 

that parents should have the constitutional right to make decisions 

for their children without governmental interference unless there is 

proof of abuse or neglect. However, our current law does not match 

the belief of the American people. 

Just as was the case regarding religious freedom, the problem 

with parental rights starts with a Supreme Court decision. In 

Troxel v. Granville, as the Chairman has already indicated, the Supreme Court ruled in favor of the parent, but did so in a way that 

has led to a serious erosion of the traditional constitutional principle of parental rights. Parents won that battle, but lost the war. 

In Troxel, the court split six ways. And without going through 

my summary, all six of the opinions, suffice it to say, only Justice 

Scalia—excuse me, only Justice Thomas, rather, used the traditional test for parental rights, calling it a fundamental right and 

applying strict judicial scrutiny. But even Justice Thomas said in 

a properly briefed case, he might consider a different rule. 

Justice Scalia is noteworthy in the fact that he said that even 

though parental rights are an inalienable right under the Declaration of Independence, that they are not constitutionally protected 

at all because there is no text of the Constitution to support parental rights. Until parental rights are in the text of the Constitution, 

Justice Scalia said, parents lose every single time. 

This level of confusion at the Supreme Court has infected the 

lower courts with a growing level of discord as to the correct constitutional text, although some confusion existed even prior to 

7 

Troxel. My written testimony includes an appendix with a brief 

analysis of State and Federal parental rights cases since Troxel. I 

list 24 cases that have expressly rejected the use of the fundamental rights standard in light of the Troxel decision. 

A pair of cases that I personally litigated explains the situation 

that parents face when attempting to protect their constitutional 

rights. Before the Supreme Court of Michigan, I argued two home 

schooling cases on the same day. The first was for the DeJonge 

family who defended their rights using a combination of religious 

freedom and parental rights. By a 4–3 vote, the Supreme Court of 

Michigan held that they had a fundamental right to do so. 

But the Bennett family, who argued simply on the basis of parental rights, had a 4–3 victory snatched from them. Rather, they 

lost 4–3 on the basis that parental rights are not a fundamental 

right. 

The net result in Michigan, according to that Supreme Court, is 

parents who are religious had the right to home school. But secular 

parents did not have the right to home school. One had fundamental freedoms; the other did not. It is my belief that all parents, 

whether secular, religious, or whatever religion, should have the 

fundamental right to make educational decisions for their children. 

It should not matter. But, in fact, it does matter. 

I have personally litigated dozens, if not hundreds of cases, involving invasion of parental rights in medical decisions, educational 

decisions, religious decisions and much more. The caseload of one 

lawyer can only be the tip of the iceberg. 

Parental rights are under assault, and the correct constitutional 

standard is not clear as a result of Troxel. Historically, the standard is clear. And the parental rights amendment does one big 

thing: It places the traditional test of parental rights into the black 

and white text of the Constitution. It follows the very words and 

principles of Meyer v. Nebraska, Pierce v. Society of Sister, and Wisconsin v. Yoder. 

Congress can make history by taking bipartisan action to protect 

parental rights. Parental rights should not be diminished over 

time, and parents shouldn’t have to guess whether or not their 

rights are fundamental. It should be in the black and white text 

of the Constitution. 

Thank you. 

Mr. FRANKS. Thank you, Dr. Farris. 

[The prepared statement of Mr. Farris follows:] 

Prepared Statement of Michael Farris, J.D., LL.M., 

Chancellor, Patrick Henry College 

In 1990, in Employment Division v. Smith, the Supreme Court of the United 

States made a ruling that undercut our long-standing legal standard for the protection of the free exercise of religion. Shortly thereafter, under the leadership of this 

Committee, Congress introduced the Religious Freedom Restoration Act (RFRA). 

I had the privilege of serving as the Co-chair of the drafting committee for RFRA 

and the even greater privilege of working closely with the members and staff of this 

Committee. Mr. Nadler played a key and leading role in the successful passage of 

RFRA. I would be remiss if I failed to mention the important role that staff counsel, 

David Lachmann, performed in that effort to preserve religious liberty for all Americans. 

And RFRA received the ultimate form of bipartisan support—since the bill passed 

unanimously in the House and 98–2 in the Senate. 

8 

The situation our country faced with RFRA is an absolutely perfect parallel with 

the situation we face today with regard to parental rights. 

There is overwhelming support in our nation for both the free exercise of religion 

and the traditional right of parents to direct upbringing, care, and education of their 

children. A 2010 Zogby poll found that 93.6% of Americans believed that parents 

should have the constitutional right to make decisions for their children without 

governmental interference unless there is proof of abuse or neglect. Regardless of 

party affiliation, racial group, or income level, America believes in the constitutional 

rights of parents in rates that exceed 90% in every one of these categories. 

However, our current law does not match the belief of the American people. Just 

as was the case regarding the free exercise of religion, the problem with parental 

rights started with a Supreme Court decision. In Troxel v. Granville, 530 U.S. 57 

(2000), the Supreme Court ruled in favor of the parent—but did so in a way that 

has led to a serious erosion of the traditional constitutional principle of parental 

rights. Parents won the battle in that case but lost the war. 

In Troxel, the Court split six ways. Although, the plurality opinion noted that the 

Court’s precedent had traditionally treated parental rights as a fundamental right, 

it refused to determine the precise constitutional standard applicable in such 

cases—preferring a case-by-case approach. 

Justice Souter concurred, saying: ‘‘Our cases, it is true, have not set out exact 

metes and bounds to the protected interest of a parent in the relationship with his 

child.’’ Parental rights are not fundamental but just ‘‘generally protected.’’ 

Justice Thomas was the only justice to actually use the compelling interest test 

applicable for a fundamental right. But he said that in a properly briefed case, he 

would consider a different outcome. 

Justice Stevens dissented rejecting the idea of a fundamental parental right to 

make decisions for children. 

Justice Kennedy also dissented, describing parental rights in language that 

illumed nothing and protects no one, saying: ‘‘The principle exists, then, in broad 

formulation; yet courts must use considerable restraint.’’ Kennedy pointedly avoided 

labeling parental rights as ‘‘fundamental.’’ 

Justice Scalia also dissented in a way that surprises most people. He said that 

parental rights are a political concept only and not a constitutional right. Unless 

and until there is an actual provision of the Constitution which protects parental 

rights, judges have no business using the rights of parents to invalidate even the 

most invasive laws. 

This level of confusion has infected lower courts with a growing level of discord 

as to the correct constitutional test—although some confusion existed even prior to 

Troxel. My written testimony includes an appendix with a brief analysis of state and 

federal parental rights cases since Troxel. Some 24 cases have expressly rejected the 

use of the fundamental rights standard in light of the confusion from Troxel. 

A pair of cases that I personally litigated explains the situation that parents face 

when attempting to protect their constitutional rights. 

Before the Supreme Court of Michigan, I argued two homeschooling cases on the 

same day. The first was for a homeschooling family, Mark and Chris DeJonge, who 

defended their right to homeschool using the combination of religious freedom and 

parental rights. By a 4 to 3 vote, the Supreme Court of Michigan held that religious 

parents had a fundamental right to direct the education of their children. People v. 

DeJonge, 442 Mich. 266 (Mich. 1993) 

But the second case was for the Bennett family who had made only parental 

rights arguments for their right to homeschool. People v. Bennett, 442 Mich. 316 

(Mich. 1993) 

To me as a matter of justice, and as a matter of correct constitutional law, the 

outcome should have been the same. Religious freedom should be treated as a fundamental right. Parental rights should be treated as a fundamental right. 

But the Supreme Court of Michigan saw it differently. They held that parental 

rights were not a fundamental right and specifically refused to use strict scrutiny. 

Thus, according to that Court—the Constitution protects the rights of religious 

parents but not secular parents to direct the upbringing of their children. 

This is just not right. All parents should have the fundamental right to direct the 

upbringing, education, and care of their children. 

I have personally litigated dozens if not hundreds of cases involving invasions of 

parental rights in medical decisions, education decisions, religious decisions, and so 

much more. And obviously, the case load of one lawyer can only be the tip of the 

iceberg. 

Parental rights are under assault. And the correct constitutional standard is not 

clear. 

9 

The principle reason for this confusion is that parental liberty is an implied right 

based on the shifting sands of a highly controversial doctrine called substantive due 

process. 

Parents deserve better than shifting sand. Parents should not have to go through 

the process of counting heads on the Supreme Court to see whether or not their 

rights are considered fundamental. There is no certainty or confidence in that kind 

of approach. 

The Parental Rights Amendment (PRA)does one big thing—it places the traditional test for parental rights into the black and white text of the Constitution. It 

follows the principles and employs the words of Meyer v. Nebraska, Pierce v. Society 

of Sisters, and Wisconsin v. Yoder. 

The terms used in Sections 1 and 2 of the PRA are terms of art with over 80 years 

of litigation behind them. Just like we did with RFRA, we are carefully following 

the traditional legal standard and not trying to invent new rights or new legal formulas. 

The Founding generation protected certain explicit rights in our Bill of Rights. 

The topics they chose were based on experience—where they had seen governmental 

invasions at some point in history. If the Founders could have seen the future where 

parental rights were being invaded by a government intent on running our private 

lives—I am absolutely confident they would have placed parental rights into the 

text of the Bill of Rights. 

This Congress can make history by taking bipartisan action to protect parental 

rights. 

The legal rights of parents should not be mired in confusion or be diminished over 

time. The right of parents to direct the upbringing, education, and care of their child 

should be in the black and white text of the Constitution of the United States. 

APPENDIX 

State and Federal Court Decisions, Decided since Troxel, which have 

Explicitly Rejected the use of Strict Scrutiny in Parental Rights Cases 

Bethany v. Jones,—S.W.3d—, 2011 WL 553923 (Ark., February 17, 2011) (holding 

that even though ‘‘the Due Process Clause of the Fourteenth Amendment protects 

the rights of parents to direct and govern the care, custody, and control of their 

children,’’ id. at *8, ‘‘our law is well settled that the primary consideration in 

child-custody cases [where a step-parent seeks visitation over the objection of a 

biological parent] is the welfare and best interest of the children; all other considerations are secondary’’ id. at *9). 

Hensler v. City of Davenport, 790 N.W.2d 569, 581 (Iowa 2010) (applying rational 

basis scrutiny to a parental responsibility ordinance because ‘‘the ordinance does 

not intrude directly and substantially into a parent’s parental decision-making authority, but instead only minimally impinges on a parent’s fundamental right to 

direct the upbringing of his or her child,’’ notwithstanding the general rule that 

whenever the power of the state ‘‘improperly intrude[s] into the parent’s decisionmaking authority over his or her child,’’ there is ‘‘an infringement of this fundamental parental right, triggering strict scrutiny,’’ citing Troxel, 530 U.S. at 67). 

In re Reese, 227 P.3d 900, 902–3 (Colo. Ct. App. 2010) (employing a ‘‘rebuttable presumption’’ in favor of parental visitation determinations, which can be rebutted 

by ‘‘clear and convincing evidence that the parent is unfit or that the parent’s visitation determination is not in the best interests of the child,’’ id. at 903; the rebuttable presumption is employed because Troxel did not ‘‘state[] how the presumption affects the proof process or how courts must accord special weight to it,’’ id. 

at 902). 

Cannon v. Cannon, 280 S.W.3d 79, 86 (Mo. 2009) (in a marriage dissolution proceeding regarding child custody, the court described Troxel as holding that ‘‘while 

a parent’s interest in his or her children is entitled to ‘heightened protection,’ it 

is not entitled to ‘strict scrutiny’’’). 

Weigand v. Edwards, 296 S.W.3d 453, 458 (Mo. 2009) (applying a balancing-of-interest test to a statute governing modification of custody because ‘‘the Supreme 

Court utilized a balancing-of-interests standard in the context of a grandparent 

visitation statute’’ and ‘‘decided to leave the determination of the propriety of particular statutes to a case-by-case analysis’’). 

Price v. New York City Bd. Of Educ., 51 A.D.3d 277, 292 (A.D. N.Y. 2008) (holding 

that ‘‘even if we were to hold that a fundamental liberty interest is at stake [because of a school rule prohibiting students from having cell phones], we would not 

apply strict scrutiny’’ because ‘‘there is no clear precedent requiring the applicaVerDate Aug 31 2005 10:25 Oct 16, 2012 Jkt 000000 PO 00000 Frm 00013 Fmt 6633 Sfmt 6621 H:\WORK\CONST\071812\75153.000 HJUD1 PsN: DOUGA
10 

tion of strict scrutiny to government action which infringes on parents’ fundamental right to rear their children’’ given that Troxel ‘‘did not articulate any constitutional standard of review’’). 

In re Guardianship of Victoria R., 201 P.3d 169, 173, 177 (N.M. Ct. App. 2008) (affirming a trial court’s decision to award guardianship of a child to ‘‘psychological 

parents,’’ to whom the mother had voluntarily given placement of the child, because evidence of potential psychological harm to the child overcame the presumption in favor of the biological parent, id. at 177; the court did not employ strict 

scrutiny, noting that ‘‘only Justice Thomas, in a concurring opinion, relied upon 

a fundamental rights-strict scrutiny analysis’’ and that ‘‘some authorities, noting 

that only Justice Thomas expressly relied upon textbook fundamental rights-strict 

scrutiny analysis, have read Troxel as moving away from the rigid strict scrutiny 

mode of analysis of state legislation that impinges on parents’ control over the upbringing of their children,’’ id. at 173 n. 4). 

In re Adoption of C.A., 137 P.3d 318, 319 (Colo. 2006) (adopting a rebuttable presumption in favor of parental decisions, which can be rebutted by ‘‘clear and convincing evidence that the parental visitation determination is not in the child’s 

best interests,’’ because Troxel ‘‘left to each state the responsibility for enunciating 

how its statutes and court decisions give ‘‘special weight’’ to parental determinations’’). 

Douglas County v. Anaya, 694 N.W.2d 601, 607 (Neb. 2005) (‘‘It is true that ‘‘the 

custody, care and nurture of the child reside first in the parents.’’ However, the 

Court has never held that parental rights to childrearing as guaranteed under the 

Due Process Clause of the 14th Amendment must be subjected to a strict scrutiny 

analysis. See Troxel. ‘‘[T]he Supreme Court has yet to decide whether the right 

to direct the upbringing and education of one’s children is among those fundamental rights whose infringement merits heightened scrutiny.’’ Pierce and Yoder 

do not support an inference that parental decisionmaking requires a strict scrutiny analysis’’) (internal citations omitted). 

McDermott v. Dougherty, 869 A.2d 751, 808–9 (Md. 2005) (Adopting a balancing test 

where ‘‘the constitutional right [of parents] is the ultimate determinative factor; 

and only if the parents are unfit or extraordinary circumstances exist is the ‘‘best 

interest of the child’’ test to be considered’’). 

Barker v. Barker, 98 S.W.3d 532, 535 (Mo. 2003) (holding that, under Troxel, ‘‘the 

trial court was required to consider the parents’ right to make decisions regarding 

their children’s upbringing, determine the reasonableness of those decisions, and 

then balance the interests of the parents, child, and grandparents in determining 

whether grandparent visitation should be ordered’’). 

Doe v. Heck, 327 F.3d 492, 519–20 (7th Cir. 2003) (applying a ‘‘reasonableness’’ test, 

akin to Fourth Amendment analysis, when balancing ‘‘the fundamental right to 

the family unit and the state’s interest in protecting children from abuse,’’ id. at 

520, because ‘‘after Troxel, it is not entirely clear what level of scrutiny is to be 

applied in cases alleging a violation of the fundamental constitutional right to familial relations,’’ id. at 519). 

In re Marriage of Winczewski, 72 P.3d 1012, 1034 (Or. Ct. App. 2003) (‘‘In Harrington, we expressly rejected the strict scrutiny standard asserted by Justice 

Thomas in Troxel and indicated that ‘the plurality opinion [in Troxel] gives the 

best guidance on the effect of the constitution in this situation’’’). 

Blakely v. Blakely, 83 S.W.3d 537, 546 (Mo. 2002) (Although the majority [in Troxel] 

did not articulate the specific standard of review it was applying, it did not apply 

the strict scrutiny standard advocated by Justice Thomas. Instead, after identifying the kinds of factors that led it to invalidate the application of the Washington statute to the facts before it, the Court decided to leave the determination 

of the propriety of particular statutes to a case-by-case analysis’’). 

In re Custody of C.M., 74 P.3d 342 (Colo. Ct. App. 2002) (noting that the court in 

Troxel ‘‘did not specify the appropriate level of scrutiny for statutes that infringe 

on the parent-child relationship’’ and ‘‘did not decide whether the state’s interest 

was a compelling one.’’). 

Leebaert ex rel. Leebaert v. Harrington, 193 F.Supp.2d 491, 498 (D. Conn. 2002) 

(‘‘Supreme Court precedent is less clear with regard to the appropriate standard 

of review of parental rights claims. However, the Second Circuit has concluded 

that a parental rights challenge to a school’s mandatory community service requirement warranted only rational basis review. Troxel does not establish a different rule requiring strict scrutiny of parental challenges to educational policies 

of public schools’’). 

11 

Nicholson v. Williams, 203 F.Supp.2d 153, 245 (E.D. N.Y. 2002) (noting that ‘‘[t]he 

plurality [in Troxel] apparently saw no need to vocalize a standard of review,’’ and 

that ‘‘[u]nderstandably, the Supreme Court and other courts have hesitated to 

apply strict scrutiny mechanically and invariably to government legislation and 

policy that infringes on familial rights. Even as it has recognized the sanctity of 

familial rights, the Court has always acknowledged the necessity of allowing the 

states some leeway to interfere sometimes’’). 

State Dept. of Human Resources v. A.K., 851 So.2d 1, 8 (Ala. Ct. App. 2002) (holding, 

over the dissent’s objection based on Troxel, that ‘‘[a]lthough a parent has a prima 

facie right to custody of his or her child, the foremost consideration in deciding 

whether to terminate parental rights is the child’s best interests. Where clear and 

convincing evidence establishes that the termination of parental rights is in the 

child’s best interests, that consideration outweighs the parent’s prima facie right 

to custody of the child’’). 

Williams v. Williams, 50 P.3d 194, 200 (N.M. Ct. App. 2002) (affirming an order of 

visitation, over the objection of the parents, based solely on statutory factors including the best-interest of the child with no apparent presumption in favor of the 

parents’ decision; ‘‘We agree with Parents that, as a general proposition, Troxel 

does require courts to give special consideration to the wishes of parents, and appropriately so. However, we do not read Troxel as giving parents the ultimate veto 

on visitation in every instance. Troxel may have altered, but it did not eradicate, 

the kind of balancing process that normally occurs in visitation decisions’’). 

State v. Wooden, 184 Or. App. 537 (Or. Ct. App. 2002) (‘‘Troxel now establishes that 

the court must give significant weight to a fit custodial parent’s decision’’). 

Crafton v. Gibson, 752 N.E.2d 78, 92 (Ind. Ct. App. 2001) (affirming an earlier decision which used of ‘‘rational basis’’ scrutiny to evaluate a grandparent visitation 

statute because ‘‘the Supreme Court in Troxel did not articulate what standard 

would be applied in determining whether nonparental visitation statutes violate 

the fundamental rights of parents;’’ thus, ‘‘because the issue of what standard 

should be applied was not reached by the Troxel court, it is unnecessary for us 

to reevaluate the conclusions we reached in Sightes with regard to this issue’’). 

Littlefield v. Forney Independent School Dist., 268 F.3d 275, 289 (5th Cir. 2001) 

(‘‘The dispositive question at issue is whether the sweeping statements of the plurality opinion in Troxel regarding the ‘‘fundamental’’ ‘‘interest of parents in the 

care, custody, and control of their children,’’ mandate a strict standard of scrutiny 

for the Parents’ Fourteenth Amendment challenge to the Uniform Policy. We do 

not read Troxel to create a fundamental right for parents to control the clothing 

their children wear to public schools and, thus, instead follow almost eighty years 

of precedent analyzing parental rights in the context of public education under a 

rational-basis standard’’) (internal citations omitted). 

Santi v. Santi, 633 N.W.2d 312, 317–18 (Iowa 2001) (holding that, under the Iowa 

Constitution, ‘‘the infringement on parental liberty interests implicated by the 

statute must be ‘‘narrowly tailored to serve a compelling state interest,’’ id. at 

318, even though ‘‘the Troxel plurality did not specify the appropriate level of 

scrutiny for statutes that infringe on the parent child relationship,’’ id. at 317). 

Jackson v. Tangreen, 18 P.3d 100, 106 (Ariz. Ct. App. 2000) (holding that ‘‘Troxel 

cannot stand for the proposition that [a state visitation statute] is necessarily subject to strict scrutiny’’ because ‘‘only Justice Thomas would have applied strict 

scrutiny to the statute in Troxel’’ and ‘‘[n]one of the other five opinions explicitly 

stated the level of scrutiny that it applied’’). 

Mr. FRANKS. Professor Guggenheim, you are recognized for 5 

minutes. 

TESTIMONY OF MARTIN GUGGENHEIM, FIORELLO LaGUARDIA 

PROFESSOR OF CLINICAL LAW, NEW YORK UNIVERSITY 

SCHOOL OF LAW 

Mr. GUGGENHEIM. Chairman Franks, Mr. Scott, Mr. King, Members of the Subcommittee, it is a great privilege for me to be here 

today. I am here testifying in opposition to a proposed constitutional amendment, recognizing the liberty of parents to direct the 

upbringing, education, and care of their children as a fundamental 

12 

right, not because I am, any less than my distinguished colleagues 

who are witnesses today, a fervent supporter of parental rights, I 

would out-elbow to the left and right for that label as someone who 

proudly regards himself as a fervent and staunch advocate for parental rights. 

My disagreement is purely over means, not ends. But profoundly, 

I come before you with the straightforward, conservative message 

that we should never tinker with the Constitution lightly, that 

there is an overwhelming burden placed on anyone who suggests 

that we need to tinker with the Constitution, and that no careful 

student of the field could reasonably conclude that that burden is 

met in this situation. 

The division of the court in Troxel is, in my opinion—and I am 

a great admirer of Michael Farris and the work that he does and 

the principles for which he stands—but I respectfully suggest that 

the critical disagreement among the Justices had less to do with 

the principle that we are discussing today, that is, the importance 

of parental rights. It had a lot to do with whether a Washington 

statute that was overbroad in its language should be declared 

facially unconstitutional or only unconstitutional as applied. It is a 

very complicated inquiry when a State court chooses to declare a 

law facially unconstitutional outside of the First Amendment and 

that case reaches the Supreme Court. And the scattered opinions 

spend much more time on that question than on the merits of what 

parental rights are. 

Suffice it to say, that the Supreme Court of the United States 

has held fast to the principles supporting this amendment, the 

merits of them. Through every court from the Lochner era through 

the Roberts court, and it is useful to read the plurality’s reaffirmation in 2000 of these principles. The court said that we have always 

confirmed that there is a constitutional dimension to the rights of 

parents to direct the upbringing of their children. We have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children. The history 

and culture of western civilization reflect the strong tradition of parental concern for the nurture and upbringing of their children. 

This primary role is now established beyond debate as an enduring 

American tradition. And, indeed, it is. 

To suggest that we need Congress to come to the rescue, because 

the court has lost sight of this fundamental notion, I submit is 

wrong-headed and incorrect. It is a very odd idea to propose a constitutional amendment to place into the Constitution the exact language that the Supreme Court has upheld through five different 

courts from 1920 to 2000. 

But there is more. We live in a country with overwhelming support for parental rights, as Chancellor Farris has just reminded us. 

Not only would it be unprecedented to amend the Constitution at 

a time when protected liberty, when the protected liberty involved 

is not threatened by the courts, but in our constitutional democracy 

it also matters whether the allegedly endangered group needs constitutional protection from the tyranny of the majority. 

Parents constitute the overwhelming majority of Americans. In 

2000, a national survey revealed that 86 percent of women and 84 

percent of American men of voting age are or were parents. There 

13 

simply is no reason to believe that the values celebrated in this 

proposed amendment are not widely shared by Americans generally, and by voters in particular. Thus, there is neither a reason 

to worry that the courts or the legislatures are insufficiently sensitive to parental rights. 

Would there ever reach the point that my distinguished colleagues here today suggest we have already, that there is really a 

threat to parental rights, we surely would have the means to address it at that time. But we aren’t close to that at this point. 

Mr. FRANKS. Thank you, Professor Guggenheim. 

[The prepared statement of Mr. Guggenheim follows:] 

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Mr. FRANKS. Mr. Tozzi, you are recognized for 5 minutes. 

TESTIMONY OF PIERO A. TOZZI, SENIOR LEGAL COUNSEL, 

ALLIANCE DEFENDING FREEDOM 

Mr. TOZZI. Thank you. I would like to thank you, Chairman 

Franks, and the Subcommittee, for inviting me to testify in favor 

of the parental rights amendment. 

Specifically, I have been asked to address the United Nations 

Convention on the Rights of the Child and how it would affect the 

rights of parents and impact the welfare of children. 

I will begin by saying that the Convention is the most widely 

ratified treaty, bar none, and it is only the United States and Somalia that have not ratified it. But it is my position, nevertheless, 

that the Convention is fundamentally flawed, and despite the good 

intentions of many, it ultimately fails children. 

The fundamental problem, as I see it, with the Convention, is 

that in pertinent part it envisions the child as an autonomous bearer of rights, divorced from his or her family, with the interventionist state seen as the ultimate guarantor of such rights, and 

such a perspective implicitly pits children against their parents. 

Indeed, the Committee on the Rights of the Child, which is empowered under the Convention to receive reports of States’ parties, 

has interpreted these rights as rights to be secured against parents, as opposed to civil and political rights to be secured against 

the State, and in fact, does invoke the State as against the parents. 

Now while there are good provisions in the Convention, and it 

does mention the need to respect the responsibility, rights and duties of the parents, and does reference the importance of the family, 

there nevertheless is this internal tension with that of the child as 

the autonomous rights bearer. And I think this rights-based approach lends itself to thinking in dialectical terms with parents 

seen as oppressive and exploitative. 

And much of the reason for this is because the Convention on the 

Rights of the Child grew out of thinking in the 1960’s and 1970’s 

which saw the child rights movement as part of a general 

liberationist movement. The writing of scholars such as Samantha 

Godwin, for example, and a recent article of hers titled ‘‘Children’s 

Oppression, Rights and Liberation’’ where she links the child rights 

movement with prior liberation movements, I think is indicative of 

this approach. 

And I think this problem is exacerbated by the role that the 

Committee on the Rights of the Child has taken under the Convention. The Convention says that Members of the committee shall be 

experts of high moral standing and recognized competence in the 

field covered by this Convention, which essentially means child 

rights experts. It is a self-selecting group, and it tends to be those 

people that would interpret the rights of the child as against parents. 

Now this committee frequently issues directives that extend beyond its power, and opines as to matters that are not covered by 

the text of the Convention. For example, the committee has criticized the United Kingdom for laws that allowed parents to opt out 

their children out of sex education courses. It is on the grounds 

that excluding children, by parents excluding children, this 

21 

amounts to a denial of the child’s right to express his or her views 

freely. 

Likewise, the committee has instructed the government of Japan 

that they must guarantee the child’s rights to privacy, ‘‘especially 

in the family.’’ 

Also, the committee has called for access to counseling on reproductive health services by children without the need for parental 

consent. They did this as recently as 2008 when Bulgaria and 

Georgia appeared before the committee. 

These views undermine the parent, child, and the family bond; 

and ultimately, they harm children because they drive a wedge between parents as the children’s natural protectors, and the children 

themselves. And in the worst case, it leads to calls for intervention 

by the State to enforce the rights of the child. 

We have seen State actions, and I refer in my written remarks 

to cases from Sweden and Spain, where opposition to parents and 

taking children from their parents, home schooling parents, has 

been justified by reference to the Convention on the rights of the 

child. 

Here in the United States, of course, we do have, as my colleagues have referenced, venerable Supreme Court precedents such 

as Meyer v. Nebraska, Pierce v. Society of Sisters, Wisconsin v. 

Yoder. However, I do disagree with my esteemed colleague here, we 

do see an erosion of parental rights. The case, for example, of 

Parker v. Hurley, which involved the parents’ right to opt out of 

public school courses where materials that they deemed inappropriate and contrary to the moral values they were teaching their 

children was denied. 

Now, the court there did not cite the reasoning of the committee 

on the Rights of the Child, but such reasoning does strengthen the 

arguments that advocates make. We have also seen elsewhere 

courts that have referenced the Convention on the rights of the 

child as being incorporated in customary international law. 

I will conclude my remarks here, but I am certainly willing to address that further should you like. Thank you. 

Mr. FRANKS. Well, thank you, Mr. Tozzi. 

[The prepared statement of Mr. Tozzi follows:] 

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Mr. FRANKS. I recognize myself now for 5 minutes to begin questioning. 

I will go ahead, if you will grant me diplomatic immunity, and 

in the interest of full disclosure, suggest that I believe a parental 

rights amendment of this sort is a vital addition to the Constitution. I think that the Constitution was always meant to recognize 


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35 

these things, but it was never really memorialized in the text. And 

one of the things as the Chairman of the Constitution Subcommittee here, it is probably one of the greatest disappointments 

to me is the willingness of some courts to fundamentally ignore the 

clear written text and intent of the Constitution to come up with 

a wholly different conclusion or ruling. 

And if they will do that with obvious language, my fear of what 

they might do at some point with no language whatsoever is one 

that nags at me given the magnitude and the importance. 

In my opening statement, I suggested that if we look to the future, any country that looks to any future must realize that the 

things that they teach their children will have as profound an impact as anything that you can possibly imagine. So we will leave 

that decision in the hands of one of two people. It will be the State 

or the parents, in essential terms. 

So I think the conclusion here is very significant. And in all deference to Professor Guggenheim, I think there is a moment in the 

life in every problem when it is big enough to be seen coming and 

still small enough to be addressed, and the Court’s history here 

gives me a sense that clear language would be of some help in 

making sure that we don’t step away from what the professor is 

absolutely right on, that this is something that all of us essentially 

agree on, that parents are the first decision makers. 

With that, Mr. Tozzi, you made a strong argument against the 

U.N. CRC, and if we have not ratified that treaty—and again, this 

is a rhetorical question to give you an opportunity to expand you 

explanation—what is the big deal about it? What threat does it 

pose in terms of the Court’s looking to ‘‘customary international 

law’’? We have seen the Supreme Court begin to recognize customary international law as influential on domestic issues—Roper 

v. Simmons and Graham v. Florida, probably be good examples, 

but do you have an concerns that a parental rights case before the 

Supreme Court could be influenced by international law or treaties? And if so, what are your concerns and kind of give us your 

perspective? 

Mr. TOZZI. Well, probably the most significant cases that did reference the Convention on the Rights of the Child you mentioned, 

Roper v. Simmons and the Graham v. Florida. In both those cases, 

the Convention on the Rights of the Child was cited as an example 

of world opinion, that norms had shifted and the United States was 

laggard. I believe the dissent of Justice Scalia in Roper v. Simmons 

addresses this, and some of the constitutional problems. He sees it 

really as a backdoor way for the courts to take a power that does 

not belong to them. The power to ratify a treaty does reside with 

the executive branch with the advice and consent of the Senate, not 

the judiciary. So there is that constitutional issue as well. 

I just want to also state that I’m not here—the substance of the 

issue in Roper, for example, the juvenile death penalty, I’m not 

opining to that or speaking out in favor of the juvenile death penalty, but rather the constitutional issues. 

Customary international law is usually referenced in cases involving the Alien Tort Claims Act. There is an expected decision by 

the Supreme Court in the next term, the Kiobel v. Shell Oil case, 

which will discuss the limits of customary international law. 

36 

Customary international law does have its place in our jurisprudence, but not an expansive notion that would incorporate everything. And there have been courts, a ninth circuit decision on the 

Tort Claims Act which has referenced universal declaration and 

other treaties as being part of customary international law. 

Various courts have also referenced the Convention on the Rights 

of the Child as being incorporated in customary international law, 

including several in the eastern and southern district of New York. 

Mr. FRANKS. Thank you, Mr. Tozzi, and I now recognize Mr. 

Scott for 5 minutes. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Professor Guggenheim, does a treaty become binding law in the 

United States without implementing legislation? 

Mr. GUGGENHEIM. I am not an expert. I don’t want to give a definitive answer. Were we to formally ratify the Convention, it 

would be citable. It is not self-executing, but it would become material to use in courts. But there is a country-mile distinction between what happened in Roper and Graham, both Eighth Amendment cases where a critical inquiry is evolving standards. And the 

world’s standards absolutely forbid, in plain language, the sentences that the States had imposed on those juveniles. 

So the court naturally—but there is nothing like that. 

Mr. SCOTT. But that is not binding on the United States? 

Mr. GUGGENHEIM. Now it is not in any sense. 

Mr. SCOTT. No treaty is binding in the United States without implementing legislation. I mean, the treaty itself does not self-execute, as you said. You need subsequent legislation to make it the 

law of the land. 

One of the things that we are working on, and will need to inquire, is how the present law would change if we had the constitutional amendment. And under present law, is there any challenge 

to parental rights under current law when the parents are operating in the best interest of the child? 

Mr. GUGGENHEIM. Under current law, there really are two different critical categories of parental rights. Education, deciding the 

details of your family’s upbringing, are of course the major work of 

Chancellor Farris, and a very important example. But in addition 

to that, the two areas are intra-family arguments over access to 

children. That’s what Troxel included. 

Mr. SCOTT. If the parents are operating in the best interest of the 

child, is there any question that that would be—you don’t need a 

constitutional amendment for that? 

Mr. GUGGENHEIM. Of course not. Any time parents are acting in 

their children’s best interest, the inquiry ends. 

Mr. SCOTT. So if you have situations that are not in the best interests of the child, those are the kinds of situations that would be 

protected under our constitutional amendment; is that right? 

Mr. GUGGENHEIM. The question would be is there an interest of 

the highest order to trump the parents’ choice. The answer is, yes. 

It could mean that children’s best interest would be not invoked because of a trumping principle. 

Mr. SCOTT. Dr. Farris, how would this operate? If you are not operating in the best interest of the child, how would that affect medical decisions in terms of denying children access to reasonable 

37 

medical treatment because the parents do not want to have the 

child’s best interests at heart? 

Mr. FARRIS. Mr. Scott, the best interest standard is a 

dispositional standard in our law. It is not a jurisdictional standard. You have to first determine if the family has harmed the child, 

either abuse or neglect. And then you go to best interest standard. 

When we automatically start invoking the best interest standard, 

it is a subjective standard which means the government gets to say 

what it thinks is best for the child. I believe the government should 

not be able to invoke that dispositional standard until it has first 

proven the jurisdictional elements of abuse or neglect. 

So you don’t start with a sentencing standard or dispositional 

standard, you start with a jurisdictional standard. And what the 

government is doing in far too many cases, and mostly with people 

who don’t have the ability to afford counsel, and they are not lucky 

enough to get somebody like Professor Guggenheim or me who basically does pro bono parents’ rights’ work, you can’t get a dime between us in terms of what we think the law should be. 

But the reality is, the lower courts and the agencies are running 

over parents on a daily basis. 

Mr. SCOTT. But at some point, some parents are just incapable 

of operating in the best interest of the child, and if you give them 

total control, notwithstanding the unreasonableness of their action? 

Mr. FARRIS. There is not doubt that at some point in time, parents abuse or neglect their children. When that happens, then the 

government gets to determine what it thinks is best for the children. But to use the best interest standard, the Washington State 

legislature put the best interest standard as the jurisdictional 

standard in the early 1980’s. Under that, they had two cases. One 

went to the Supreme Court of Washington called In Re: Sheila 

Marie. And in that case, Sheila Marie was a 13-year-old-girl, was 

smoking marijuana, sleeping with her boyfriend. The parents 

grounded her, and the State took the girl away from her parents 

even though the court held that the rules were reasonable and the 

method of enforcing the rules were reasonable. Nonetheless, because there was conflict between parents and child over these 

standards, the State had jurisdiction and removed the girl. 

That’s what happens when you start with best interest. You don’t 

start with best interest, you start with harm. After proof of harm, 

abuse or neglect, or divorce or something like that, after proof of 

brokenness, then you go to the best interest. If you start with best 

interest, that’s the very problem because best interest necessarily 

means that the government gets to substitute its subjective judgment about what is right for the child over that of the parent. 

Mr. SCOTT. Thank you. 

Mr. FRANKS. Thank you, Mr. Scott. 

I now recognize the distinguished gentleman from Iowa, Mr. 

King. 

Mr. KING. Thank you, Mr. Chairman. I thank the witnesses. And 

I turn first to Dr. Farris. 

What is the legal definition of a parent within the context of our 

discussion here? 

Mr. FARRIS. Under the amendment, under the PRA, I think it 

would turn to State law to determine who is a parent under State 

38 

law. So it normally would be biological or adoptive parent, but that 

would be a State law question. Who is the parent of this child 

under State law? 

Mr. KING. Do you all concur, the other witnesses? Professor 

Guggenheim and Mr. Tozzi? 

Mr. GUGGENHEIM. Yes. 

Mr. TOZZI. Yes. 

Mr. KING. Thank you. So this complicates this understanding for 

me. If we have States that define parents as parents, legal guardians, that is what I would view as a definition of a parent under 

the law that I would like to see. If it gets expanded into grandparents, aunts, uncles, brothers, sisters and the whole or half 

blood, how does that affect this potential amendment to the Constitution, Dr. Farris? 

Mr. FARRIS. First of all, constitutional amendments only affect 

disputes between the government and the parent. It won’t affect 

any kind of intra-family litigation directly, except if there is a State 

law like the Washington State law. That wasn’t just grandparent 

visitation, it was random third-party visitation in that State statute. But normally it is a dispute between the government and a 

person exercising parental authority under State law. So if the 

child was living with the grandparent under State law, that grandparent had parental authority, then the amendment would protect 

them. 

Mr. KING. I’m thinking of this. I am thinking of parental notification laws in the event that a minor child would be seeking an abortion, and parental notification or parental consent laws and the 

definition of a parent within that context. And as I read this 

amendment that is the subject of this hearing today, and I would 

think that if the State grants an authority of consent to an aunt 

or an uncle of whole or half blood, that would intervene between 

this parental rights. So I don’t know what effect this amendment 

would have if this amendment doesn’t trump that kind of a State 

legislation decision to intervene. 

Mr. FARRIS. In my opinion, Mr. King, if a State legislature gave 

the right or the power to perform parental notification in an abortion context, or really any context, to a nonparent, that statute 

would be subject to constitutional challenge. And if I was on the 

court, I guarantee you that the parent is going to win that case. 

But you would have to go through the test of is there a compelling 

governmental interest in doing so. In the abortion context, there is 

the countervailing fundamental right of the pregnant woman that’s 

involved and it gets messy. This amendment would not settle any 

of those questions. 

But a dispute between a randomly-named aunt and a parent, 

this amendment would speak to that and would uphold the superior right of a parent to be the one notified in any medical situation, absent proof of a governmental reason for intervention in taking that right away from the parent. 

Mr. KING. I won’t examine that question any further because I 

think you have posed the viewpoint of the breadth of question that 

I raised. But there is another question that occurs to me as I read 

the amendment. In a way, I am going to pose this to our Chairman 

as I prepare to yield to him. That is, it says that ‘‘this Article shall 

39 

not be construed to apply to a parental action or decision that 

would end life.’’ And I would like to yield the balance of my time 

to Chairman Franks and ask him if he can help me answer that, 

and then do whatever you would like with the balance of my time, 

Mr. Chairman. 

Mr. FRANKS. Thank you, Mr. King. I think we are going to go 

ahead and have a second round of questions here just for clarity, 

so I’m going to go ahead and do that. So you are welcome to finish 

your time out if you’d like. 

Mr. KING. Would the gentleman yield to me? 

Mr. FRANKS. Absolutely. 

Mr. KING. Do you have a short answer to that particular question that I posed? The ‘‘Article shall not be construed to apply to 

a parental action or decision that would end life’’? I’m happy to 

wait until the next round, if you would prefer. 

Mr. FARRIS. Would you like me to answer? That language means 

that if the parents want to terminate the life of their child, some 

other source of law is going to have to answer the parental rights 

issues, and not this amendment. That was done as a result of concerns raised by National Right to Life. And so to satisfy those concerns, that language was drafted. Although it states a broader 

principle, if you want to kill your child, you are not going to be able 

to claim a parental right under this amendment. It restates in another way, I believe, the compelling interest test, that you don’t 

have the right to terminate the life of your child. Whether you are 

going to starve them to death or lock them in a box, whatever. 

That is the broader principle stated by that subsection. 

Mr. KING. Thank you, Dr. Farris. My time has expired and I 

yield it back. Thank you, Mr. Chairman. 

Mr. FRANKS. Thank you, Mr. King. We will begin our second 

round of questions here. Oh, Mr. Conyers. I am so sorry, sir. Please 

forgive me. He just came in surreptitiously. I now recognize the 

distinguished Ranking Member of the full Committee, Mr. Conyers. 

Mr. CONYERS. Chairman Franks, I apologize for coming in late. 

I appreciate being able to just ask a basic question of Attorney 

Piero Tozzi. What, sir, do you happen to think may be the weakest 

part of Professor Guggenheim’s presentation about this subject of 

constitutionality in which he has posited that there is no need to 

tinker with the Constitution, and that there is no genuine crisis? 

How would you respond to that? 

Mr. TOZZI. Well, thank you. I would like to say, first of all, that 

much of Professor Guggenheim’s work I do admire, and there is a 

lot that we agree with each other on. 

I think, however, that he has focused on certain cases and certain constellations in our constitutional system, but ignored certain 

trends. And I did reference the Parker v. Hurley case which involved the right of parents to opt their children out of public school 

curriculum where they disagreed as a matter of moral principle 

with the content. And I fear decisions in this vein, in particular, 

and I don’t think that Professor Guggenheim adequately addressed 

that. But I do want to say that on many measures, we certainly 

do agree, and I’m an admirer of much of his work, although not all 

of it. 

Mr. CONYERS. Thank you. 

40 

Dr. Michael Farris, what is your analysis in terms of the 

Guggenheim postulate that there really isn’t much problem here 

that would warrant a constitutional amendment? 

Mr. FARRIS. Professor Guggenheim and I are very much alike in 

a lot of ways. He teaches constitutional law at New York University Law School. I teach constitutional law at the Patrick Henry 

College. He litigates for parents; I litigate for parents. 

Wearing our constitutional professor hats, we get into the discussions of what is the Supreme Court really doing? What’s that court 

really thinking? Well, that’s not the whole story. The litigator in 

me says I have got to face lower courts every day, and I have supplied the Committee 24 reported appellate decisions from State and 

Federal courts where they have interpreted Troxel the way I interpret it. So it’s not a dispute between constitutional professors that 

matters, it is how is it really working in real life. And how it is 

working in real life unfortunately is the way that I say Troxel is. 

Both of us would like the same result. Both of us would like parents’ rights to still be fundamental. Both of us would like there still 

to be a compelling interest test being used; but that’s not what is 

happening in real life. So, for example, in the court of appeals—— 

Mr. CONYERS. Well, let me thank you for pointing that out, and 

I just want to turn to Professor Guggenheim for my remaining time 

to help us see what threads of similarity and unresolvable differences exist in this discussion, and I thank you very much, Dr. 

Farris. 

Mr. GUGGENHEIM. Some of what I’m hearing creates a dilemma 

for me personally. If this were a hearing into the question, have 

we set something into motion that disserves families and children 

by permitting States to intervene too easily to remove children 

from their parents and families of origin, put me on the first list 

of witnesses to complain about what we are doing. 

But if I may say respectfully, this Congress is a major agent in 

that Act. And if we were here to complain about the fact that the 

United States has the highest number of children in State-ordered 

foster care of any nation on Earth, mostly from poor families, overwhelmingly poor, impoverished families, and we asked should we 

do something about it, I would commend Congress to amend the 

child protection laws and explicitly say that no child should ever 

be removed from a parent’s home except for reasons of the highest 

order. 

We don’t need a constitutional amendment, we need legislative 

change. If this distinguished body thinks there is a problem, we 

can fix it tomorrow by changing the legislation. We have that 

power. We don’t need to pretend we need a special law to trump 

what we are doing. We can control our own actions. And I could 

stand before you if we want to turn this hearing into the question: 

Are we doing enough to ensure that children are raised by their 

families in the United States? I do not think we are. But I didn’t 

understand that to be the question before us. The question before 

us is do we need a constitutional amendment to fix that problem? 

The answer, in my opinion, is no. 

Mr. CONYERS. Thank you. I would like to thank Chairman 

Franks, and hope that this can be the subject in the future of a 

further consideration of this distinguished Committee. 

41 

Mr. FRANKS. Thank you, Mr. Conyers. 

Dr. Farris, votes have been called, and I’m going to go ahead and 

start the second round. We will see how far we get. I will be as 

brief as possible. 

I have already suggested to you that I think the absence of constitutional language to clarify this is at some point going to be an 

issue. I remain convinced of that not because I disagree with much 

of the very passionate and very well-stated testimony of Professor 

Guggenheim, but simply because I believe that there has been this 

trend of courts to begin to play the role of legislator, and at least 

this is a firewall in this regard. And in my mind, you have really 

identified the foundational issue here, and that is the best interest 

of the child. 

In my testimony, once again, I said one of two people will answer 

that question, and it will be the State or the parents. And in my 

judgment, the parents are of such import in this case, this is one 

of the reasons that I think this amendment is, or some type of an 

amendment like this is important because it says in who decides 

the best interest of the child, we are going to give the clear advantage to the parents unless there is previously a proof of, or an indication of harm. 

Mr. FRANKS. So with that, if I could ask you once again to sort 

of elaborate on this best interest of the child argument. And also, 

you said in your testimony that this thing should be a fundamental 

right. Can you give us some more examples from across the countries of what happens when parents when their rights are not considered fundamental. 

Mr. FARRIS. Mr. Franks, I can take a few cases out of my own 

practice to explain. One is another Washington State case that focused exactly on the best interest standard. In that case, in Island 

County, Washington, a 13-year-old boy complained to a school guidance counselor who brought in a social worker, his family took him 

to church too much. They went to church Sunday morning, Sunday 

night, Wednesday night prayer meeting. And the social worker was 

outraged at that level of church. And under Washington State statute, that has since been repealed, the government can intervene for 

the best interest of the child without proof of harm. 

They removed that boy on an emergency basis. I was at the hearing the following week to review that. And the judge said, I think 

this boy should go to church just once a week. That’s what happens 

when the best interest standard becomes the sole issue. If you don’t 

have the ability to say first you must prove harm, an interest of 

the highest order not otherwise served. If the government gets to 

make subjective judgment calls, you get judges deciding how often 

a kid goes to church. That’s a parent’s call, not a judge’s call, not 

a social worker’s call. 

There was a case before the Court of Appeals of Michigan just 

last week. In that case, a family decided that after having surgery 

for their son to remove a tumor and a round of chemotherapy, that 

that was enough because the boy was testing clean of cancer. Their 

family doctor would continue PET scans, and the social services 

agencies hired a private lawyer because the prosecutor refused to 

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cause the family did something different than what the doctors 

wanted. 

In that case the sole issue is, do parents get to decide or do the 

doctors and the social workers get to decide what is appropriate 

medical care? It is not a case where there’s clear harm, it is a gray 

zone case. And we are seeing more and more of these cases where 

parents are losing their ability to make good parenting decisions 

and it is because the government thinks it gets to decide what is 

best for families. And they do so most often for poor families, for 

middle class families, for people who can’t stand up for themselves. 

And the reason we need a constitutional amendment is because not 

every case gets before the Supreme Court. I want social workers 

who are dealing with the family to know there’s a constitutional 

amendment here, where I am attacking this poor family, these people have real rights in black and white that I can’t ignore. If we 

are just based on inferences and debates that the professors have, 

social workers don’t pay attention to that. Social workers will pay 

attention to black and white constitutional rights. We need to do 

something for families if we are going to stop this erosion of parental rights. 

Mr. FRANKS. Thank you, Dr. Farris, and I am going to end my 

questioning here by simply stating that once again, I think you 

have articulated it well, that who decides what is in the best interest of the child. Unless there is clear convincing evidence that the 

child is somehow being harmed, I think unless we are willing to 

just leave that to chance, that it is very important for us to pass 

an amendment like this making it clear that parents have the first 

and most fundamental right to decide the upbringing and education of their children. 

Now we might also look into something regarding one of your 

cases to maybe get a judge to say that Members of Congress might 

attend church at least once a week, or something like that. It 

might be good for the country, I don’t know. That is just something 

we can throw out there for consideration. With that, I would yield 

to Mr. Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. Dr. Farris, is the case involving church attendance appealed? 

Mr. FARRIS. No, it was not. The judge told the parents if you 

don’t give your son or don’t agree with my ruling today, I will remove your child. I could not assure the family they would keep custody while they appealed, and they jut simply caved in. 

Mr. SCOTT. The problem is that is, if you have a bad decision, 

you don’t go to constitutional amendments, if it was a bad decision. 

Mr. FARRIS. No, Mr. Scott, that’s true, but within a week or a 

month it was a very short period of time, it has been a while ago, 

I can’t remember the exact sequence, the Supreme Court of Washington did issue the decision I referenced earlier in the same exact 

law In Re: Sheila Marie. And they held that the statute’s ability 

to overturn parental decisions was constitutional. And so even 

though that particular fact pattern wasn’t appealed, a very parallel 

fact pattern involving parents grounding a girl for smoking marijuana and sleeping with her boyfriend at age 13 was appealed and 

that one was lost at the Supreme Court of Washington level. 

43 

Mr. SCOTT. Well, my time is very limited. If you could give us 

examples of cases where the best interest of the child is—where the 

decision is in the best interest of the child, and the courts have 

done other than what the parents acting in the best interest of the 

child. In cases where the court has decided that they are not acting 

in the best interest of the child, exactly how this Constitutional 

amendment would change things. There’s some limit to acting not 

in the best interest of the child, and I think you would want to protect the child from, and I think you are in a gray area. If you could 

help us out, I am not sure we can do that in the time we have left, 

but if you could help us on that, it would be helpful. 

Mr. FARRIS. Mr. Scott, the I think Professor Guggenheim and I 

would agree on this exactly, the government’s authority to intervene should require a prior showing of harm to the child, abuse or 

neglect. 

Mr. SCOTT. Have cases been shown where the family’s acting not 

in the best interest of the child, but the child was not harmed, 

harmless error? 

Mr. FARRIS. Well, let’s take the Nebraska case that would be illustrative of this—Douglas case? Yeah, where this lady turned her 

child over to social workers for a voluntary period because she was 

having problems with lactose intolerance and some of her own 

problems in her life. And the government took the child because 

they thought it was in the best interest of the child to take it and 

they terminated her parental rights. And the Court of Appeals in 

Nebraska said that you can terminate parental rights when the 

parent is not capable of doing what is best for the child. But the 

Supreme Court of Nebraska overturned that saying that’s too flimsy a ground to terminate parental rights. That’s what happened. 

Best interest is too flimsy a ground. We should not be able to 

take—— 

Mr. SCOTT. So the law in the land in that area is okay under 

present constitutional standards? 

Mr. FARRIS. The Nebraska Supreme Court got it right. 

Mr. SCOTT. The fact that you have a trial level court decision 

that isn’t right, we have to go through a general standard, and the 

idea that you can find a case where a trial court didn’t get it right 

is not the grounds for a constitutional amendment? 

Mr. FARRIS. I have 24 appellate decisions reported attached to 

my testimony where the courts didn’t get it right, 24. It is not one, 

it’s not two. 

Mr. SCOTT. Yeah, but the appellate court got it right. 

Mr. FARRIS. No. In the Nebraska case, yes, that one was resolved 

correctly. But I can list for you 24 cases in my testimony, written 

testimony where the courts didn’t get it right and the question 

is—— 

Mr. SCOTT. Where the appellate court did get it right? 

Mr. FARRIS. No, did not get it right. 

Mr. SCOTT. Okay. 

Mr. FARRIS. The correct legal standard is this, are parental 

rights fundamental? That’s the right standard, that’s the right 

question. 

Mr. SCOTT. That’s kind of where we are going to try—that’s going 

to be the gray area because if parents operating not in the best inVerDate Aug 31 2005 10:25 Oct 16, 2012 Jkt 000000 PO 00000 Frm 00047 Fmt 6633 Sfmt 6601 H:\WORK\CONST\071812\75153.000 HJUD1 PsN: DOUGA
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terest of the child, at some point, the government ought to step in 

and protect the child. 

Mr. FARRIS. No parent has the right to harm their child. 

Mr. SCOTT. What would this amendment do on corporal punishment? 

Mr. FARRIS. This amendment would continue the traditional law 

that moderate corporal punishment would be within a parent’s authority. If they abuse the child, it would not protect them at all. 

Mr. SCOTT. It would not change present law? 

Mr. FARRIS. It would not change traditional law. 

Mr. FRANKS. Thank you. Once again, you have emphasized who, 

when we are talking about best interest, is who decides best interest of the child and what does that encompass. And it is and a 

question of inexpressible gravity, and I want you to know that I appreciate all of you for being here today. Without objection, all Members will have 5 legislative days to submit to the Chair—I am 

sorry, surreptitiously again. 

Mr. SCOTT. It is okay. 

Mr. FRANKS. Submit to the Chair additional written questions for 

the witnesses which will be forwarded to them and they will be 

asked to respond as promptly as they can so their answers maybe 

made a part of the record. And without objection, all Members will 

have 5 legislative days within which to submit any additional materials for inclusion in the record. With that again, I sincerely 

thank the witnesses for joining us today, and the Members and observers and this hearing is now adjourned. 

[Whereupon, at 1:42 p.m., the Subcommittee was adjourned.] 

(45) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

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Material submitted by the Honorable Trent Franks, a Representative in 

Congress from the State of Arizona, and Chairman, Subcommittee on the 

Constitution 


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

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

the Judiciary, and Member, Subcommittee on the Constitution 

Mr. Chairman, the bond between parent and child has long been respected by our 

legal system as a fundamental right. Although not among the enumerated rights in 

the Constitution, the right of ‘‘parents and guardians to direct the upbringing and 

education of children under their control’’ has been among the core rights protected 

by the Due Process Clause. 

While I know that some of my colleagues on the other side are not big fans of 

unenumerated rights, and are certainly not fans of the line of cases establishing the 

liberty interest under the Due Process Clause that also gave us Roe v. Wade, I believe that the desire to preserve parental rights cuts across ideological and party 

lines. 

I think it is important that we keep a few important points in mind. 

First, as the Supreme Court famously noted in Pierce v. Society of Sisters, ‘‘[t]he 

fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children. . . . 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.’’ 

In its decision in Meyer v. Nebraska, the Court’s instructive survey of societies 

such as ancient Sparta, where children were raised as creatures of the state shows 

why, if only as a practical matter, ceding that kind of power to the government is 

undesirable. 

More importantly, the bonds of family, and the importance of the family in our 

society, demand that we respect the family relationship. The court’s nearly 90-year 

jurisprudence reflects these widely held views, and I believe that there is no reason 

to question that sound rule. 

Second, I know that there are some—and we will hear from them today—who 

have sounded the alarm that parental rights are under attack from our courts, and 

from the international community. That is unfortunate. While the stray case, or occasional dicta, may sound ominous, I do not believe the case has been made that 

parental rights, as protected by the Constitution, are in peril. I look forward to today’s discussion, and I hope that the witnesses can shed light on this question. 

Finally, there is also a great deal of fear that has been generated by concerns 

that ratification of the United Nations Convention on the Rights of the Child might 

nullify parental rights. I have to confess, we hear such arguments with respect to 

nearly every treaty, and they usually have no firmer foundation than this one. 

Most organizations that work with families, such as World Vision, believe that the 

treaty will actually do a great deal to support families and protect children. That 

is why, according to a World Vision report on the Convention, ‘‘World Vision does 

not view the CRC as a parental code of conduct or as a wedge between parents and 

children. It is an agreement that aims to protect children from abuse and neglect, 

and is supportive of the role and authority of parents.’’ 

I find it sad that the only two countries left on earth that have not yet ratified 

the Convention on the Rights of the Child are the United States and Somalia. 

United States courts will not suddenly start implementing treaties in ways that 

violate the Constitution. That just doesn’t happen. Treaties are, by and large, nonself executing. Were they, I think a number of people currently on death row in 

Texas would get new trials now in the wake of the International Court of Justice’s 

decision in the ‘‘Case Concerning Avena and Other Mexican Nationals.’’ 

In that case, Mexican nationals were criminally prosecuted without being permitted to contact their embassy, and were ultimately sentenced to death. The ICJ 

ruled in their favor, but Texas has moved forward with the executions, and the Supreme Court has refused to intervene. 

The Supreme Court, however, said that ‘‘while treaties ‘may comprise international commitments . . . they are not domestic law unless Congress has either 

enacted implementing statutes or the treaty itself conveys an intention that it be 

‘self-executing’ and is ratified on these terms.’’ It would take an act of Congress, 

95 

which is always subject to our Constitution, to implement these obligations. If you 

think otherwise, I suggest you go to death row in Texas and ask the inmates there. 

I would, as always, caution my colleagues against pressing forward with a constitutional amendment. There is a reason why we have amended that document so 

rarely, and why the framers made it so difficult to amend. It should certainly not 

be amended lightly, and in a case such as this, where a right is already well established under the Constitution, and where the threats are truly speculative, I would 

have grave reservations about moving forward. 

These are all important questions, and I look forward to the witnesses testimony, 

which I hope will enlighten the debate. 

Æ