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The American Center for Law and Justice Input on PRRA

Introduction Part of the background research for the March issue of The Christian Conscience involved talking to various legal scholars. Cynthia Weatherly contacted the American Center for Law and Justice and they analyzed the PRRA from several vantage points. What follows is their letter to Mrs. Weatherly along with two "Commentaries" on the PRRA.

Letter to Cynthia Weatherly

Dear Ms. Weatherly:

Your letter of February 7, 1996 to Jay Sekulow was forwarded to me for response. Thank you for sending Professor Rice's evaluation. Based on his comments, I think you will find the evaluations done by the American Center for Law and justice on the Parental Rights and Responsibilities Act of great interest.

Most of the issues of concern raised by Professor Rice were also addressed in the ACLJ's memorandum to the House of Representatives Subcommittee on the Constitution. Provided the concern areas are addressed, and we understand that is in fact taking place, the ACLJ supports the Parental Rights and Responsitibilities Act.

Please also be aware that Professor Rice's concern that the Religous Freedom Restoration Act, which is the template for the Parental Rights and Responsibilities Act, was recently upheld by the 5th Circuit against a constitutional challenge in Flores v. City of Boerne.

If you have any questions please feel free to contact us.

Very truly yours,

Colby M. May
Senior Counsel
Office of Governmental Affairs
The American Center for Law and Justice

Commentary On The Parental Rights and Responsibilities Act. S.984, H.R. 1946

The American Center for Law and Justice
Jay Alan Sekulow, Chief Counsel
2385-C Lawrenceville Hwy
Decatur, GA 30033

Keith A. Fournier, Executive Director
1000 Regent University Drive
Virginia Beach, VA 23467

Office of Governmental Affairs
Colby M. May, Senior Counsel
Mark N. Troobnick, Litigation Counsel
1000 Thomas Jefferson St., N.W., Suite 304
Washington, D.C. 20007 (202) 337-2273

Introduction

The American Center for Law and Justice is firmly behind the concept of preventing government intrusion into the family, particularly in the realm of child-rearing. This commentary is offered in the spirit of constructive criticism of the Parental Rights and Responsibilities Act's current language. Much of the Act is solid, however, certain portions of this legislation are disturbing. In particular, placing the burden on parents to initially prove that they have a parental right before requiring the government to prove why it is necessary to abridge that parental right is, frankly, ominous. In addition, important terms are undefined, and must be defined for this Act to be successful.

I. THE BURDEN OF PROOF SHOULD BE PLACED WHOLLY UPON THE GOVERNMENT-

As currently drafted, the Parental Rights and Responsibilities Act provides that a parent must first "initially demonstrate that" "the action in question arises from the right of the parent to direct the upbringing of a child." Parental Rights and Responsibilities Act, Sec. 2(6)(A)(i). The initial burden should, however, be on the government to prove the necessity for the harm caused or action taken. Defining "the right to direct the upbringing of a child" is the battleground which has prompted the submission of this legislation. Allowing the courts to legislate what this right consists of, and what the burden of proof for parents will be to go forward with this claim will only exacerbate that which this Act seeks to resolve. If courts consistently find that parents have failed to "demonstrate" that the governmental action interferes with a parent's right to "direct the upbringing of a child." this legislation will have caused more harm than good.

The problem is that State departments of social services and public schools consistently declare that educational issues, or issues involving parental discipline of children, are outside of the realm of parental rights. E.g., Mozert v. Hawkins County Public Schools, 827 F.2d 1058 (6th Cir. 1987) (parents do not have the right to opt their children out of religiously offensive classes). The government is invariably asserting that its values inculcation programs in the public schools are completely divorced from such parental rights. See Curtiss v. School Committee of Falmouth, 652 N.E.2d 580(Mass. 1995)(no parental rights involved in condom distribution in public schools). Consequently, as presently drafted, Parental Rights and Responsibilities Act litigation will revolve around whether a parent's act is a "parental right," rather than on whether the State had a compelling justification for its infringements.

Like the assertion of a sincerely held religious belief, Employment Division v. Smith, 494 U.S. 872, 887(1990), it is not the job of the courts to determine the validity of an asserted right to raise one's child free from government intervention-no matter how tenuous such parental assertions may be. Many parental proclivities for child rearing can be reduced to an ad absurdum level which are nonetheless inextricably bound with parental rights.

The initial standard of proof as presently set forth in the Parental Rights and Responsibilities Act would inevitably be construed by courts to require a parent to prove that the parental right at issue is a fundamental right; a right which is central to the tenets of some "neutral" standard of parenting. Some courts, for example, do not consider that a parental decision to home school a child is a fundamental parental right.

The ACLJ believes that parents should not be initially required to prove that their objections to a government intrusion is integral to their rights as parents in order to shift the burden to the government to show why it took the intrusive action in the first place. The ACLJ, therefore, can only endorse this bill if the burden switching clause, Parental Rights and Responsibilities Act Sec. 2(6)(A)(i) & (ii) is deleted in its entirety.

II SETTING FORTH THE APPLICABLE STANDARD-

The central issue in this legislation is the protection and preservation of parents' rights in the upbringing of their children as a fundamental right. See Wisconsin v. Yoder, 406 U.S. 205, 233 (1972); Employment Division v. Smith, 494 U.S. 872, 881 & n.1 (1990). The idea behind the protection of such a fundamental right, as in the context of the protection of religious liberty rights, is that the State must show a compelling justification for infringing those rights, as opposed to a rational basis. Courts are increasingly ignoring this constitutionally protected right, and are condoning government intrusion into child rearing.

For example, the Second Circuit in Immediato v. Rye Neck School District, No. 95-7237, 64 U.S.L.W.2443, 2444 (JAN. 23, 1996), recently held:

Parents have a liberty interest, cognizable under the Fourteenth Amendment, in the upbringing of their children. The Supreme Court, however, has never expressly indicated whether this "parental right" when properly invoked against state regulation, is fundamental, deserving strict scrutiny, or earns only a rational review. Our reading of the appropriate caselaw convinces us that rational basis review is appropriate. (Emphasis added, citations omitted).¹

To counteract this trend to diminish parental rights it is necessary to use and incorporate the necessary legal terms of art and define those terms to constrain this type of judicial social activism.

Accordingly, when addressing the eradication of religious liberty rights from their prior "fundamentally protected" status to a "rational basis" status by the Supreme Court in Smith, Congress addressed the matter directly by incorporating those legal terms of art which would stymie further judicial intrusion. In the Religious Freedom Restoration Act, 42 U.S.C. 2000bb("RFRA"), Congress was clear that it was installing a "strict scrutiny" "compelling State interest" standard for governmental abridgment of religious liberty. Congress then went a step further by specifically referring to that case it was seeking to counteract, Smith, and then by referring to those cases which set forth the proper standard of review, like Sherbert v. Verner, 374 U.S. 398 (1963) and Yoder. RFRA Sec. 2(b)(1). Precedential illustrative examples should be used here as well.

The terms "compelling interest" and "strict scrutiny" have been incorporated in the Parental Rights and Responsibilities Act. Unlike RFRA, however, they remain substantially undefined. It is therefore suggested that, like RFRA, previous Supreme Court cases which set forth the compelling State interest standard (i.e. Yoder, Pierce, Prince, etc.) are actually referred to in the body of the Act or its purpose statement as cases exemplifying the compelling state interest standard in this context. It is noted that the Senate version (S. 984) of this Act refers to cases for their "parental rights are fundamental rights" proposition, while the House version (H.R. 1946) has no such references.² Neither version illuminates the compelling interest standard through precedent, which we believe would be of great assistance in litigation, and provide needed clarity on the point.

III TERMS DEFINED-

The ACLJ applauds the creation of a cause of action for government violations of the Parental Rights and Responsibilities Act. It is not clear whether this Act is to be incorporated in the Civil Rights Act in the same manner as RFRA. It is apparent from the plain language of the Act, however, that attorney's fees are available under 42 U.S.C. 1988. We believe that it would be helpful to fully incorporate the Parental Rights and Responsibilities Act into the Civil Rights Act if that is not already the congressional intent.

In addition, we believe that it would be instructive for the courts to add RFRA-type jurisdictional language to the Claim or Defense Section of the Act. A suggested revision of Section Six of the Parental Rights and Responsibilities Act would read as follows:

A parent or parents whose parental rights in the upbringing of their children have been burdened in violation of this section may assert as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Any parent may raise a violation of this Act in an action in a Federal or State court, or before an administrative tribunal, of appropriate jurisdiction as a claim or a defense. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.

The additions to this section importantly tell the courts from whence their jurisdiction is derived.

Similarly, an addition to the Section Three "Definitions" section, defining "government," which is used throughout the Act, is as necessary here as it was in RFRA. The following is a suggested definition:

GOVERNMENT- including a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States, a State, or a subdivision of a State.

It is also a bit strange the vital terms of this legislation, "Parent" and "Child" could conceivably exclude guardians and adoptive parents, and could serve as a means for States to escape the constraints of the Parental Rights and Responsibilities Act. In addition, terms like "family" and "marriage" in the current liberal lexicon been transmogrified to represent relationships which are diametrically opposed to traditional concepts of the nuclear family. The ACLJ will endeavoring in the near future, as an addition to this commentary, to offer suggested definitions of these two terms.

The ACLJ hopes that these comments are helpful. If there are any questions, or other information is desired, please feel free to contact us.

FOOTNOTES:

2. The Fifth Circuit recently affirmed the constitutionality of RFRA. Flores v. City of Boerne,___ F.3d___, 1996 WL23205 32213 (5th Cir.TX). As Flores decision shows, Congress has the constitutional authority to create protections for fundamental rights, such as those at issue here.

Commentary On The Parental Rights and Responsibilities Act. S.984, H.R. 1946

The American Center for Law and Justice
Jay Alan Sekulow, Chief Counsel
2385-C Lawrenceville Hwy.
Decatur, GA 30033

Keith A. Fournier, Executive Director
1000 Regent University Drive
Virginia Beach, VA 23467

Office of Governmental Affairs
Colby M. May, Senior Counsel
Mark N. Troobnick, Litigation Counsel
1000 Thomas Jefferson St., N.W. Suite 304
Washington, D.C. 20007 (202) 337-2273

The ACLJ has been requested to provide commentary on two related issues concerning the above-entitled legislation. First, whether a state court ruling concerning the emancipation of a minor would be "state action" for the purposes of this bill? Second, whether the "clear and convincing evidence" standard is a helpful addition to this legislation? The answer to both of this inquiries is an affirmative response.

I. JUDICIAL RULINGS ARE "STATE ACTION."

Assuming that the Parental Rights and Responsibilities Act is enacted as a federal civil rights statute, judicial actions taken in relation to or contravention of this Act would be "state action." In the hypothetical presented, a plaintiff minor seeks government action through a ruling declaring her, at age 16, to be emancipated from her parents.¹

The state action is such a case consists of the compulsive powers of the judiciary exercised under color of state law. See e.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916 (1982) (First Amendment governs damage awards); New York Times v. Sullivan, 376 U.S. 254, 265 (1964); Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767,77(1986). In Cohen v. Cowles Media Co., 115 L.Ed.2d 586, 596 (1991) the Supreme Court said:

Our cases teach that the application of state rules of law in state courts in a manner alleged to restrict First Amendment freedoms constitutes "state action" under the Fourteenth Amendment.

115 L.Ed.2d at 596. A federal statute which reinforces a substantive fundamental right would similarly be triggered when a state court applies state laws in a manner which restricts those fundamental rights. Such an action by the judicial branch would, accordingly, be "state action" for the purposes of this statue.

II. THE "CLEAR AND CONVINCING" EVIDENTIARY STANDARD IS NECESSARY.

"The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to instruct the fact-finder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication." Addington v. Texas, 441 U.S. 418, 423 (1979)(citations omitted). The "strict scrutiny" "compelling state interest" standard sets forth the measure to be applied to the governmental abridgment. It does not specify the burden of proof to be placed upon the government for justifying that abridgment.

When the judiciary examines a particular governmental action pursuant to statutory guidelines, it will generally impute a moderate evidentiary burden to support the government action. For example, in Grogan v. Garner, 498 U.S. 279, 286 (1991), the U.S. Supreme Court held:

The legislative history of [the statute in question] is silent. This is inconsistent with the view that Congress intended to require a special, heightened standard of proof...We are unpersuaded that the clear-and-convincing standard is required....

Thus, if the government is going to be held to a higher standard of proof, it is always best to explicitly spell out that standard in the text of the legislation.

State infringement upon parental decision-making is closely analogous to governmental abrogation of parental rights. Consequently, the "clear and convincing" evidence standard is the standard which should be in place in the Parental Rights and Responsibilities Act. The inherent risk of not specifying this standard is ending up with a default application of the "preponderance of the evidence" standard. That would be a disastrous result for the Parental Rights and Responsibilities Act. As the Supreme Court said in Addington, "a fair preponderance of the evidence' standard indicates both society's minimal concern with the outcome, and a conclusion that litigants should share the risk of error in roughly equal fashion." 441 U.S. at 423 (citation omitted).

The "clear and convincing" standard, on the other hand, is mandated "when the individual interests at stake in a state proceeding are both particularly important and more substantial than mere loss of money...the Court has deemed this level of fairness in a variety of government-initiated proceedings that threaten the individual involved with a significant deprivation of liberty of stigma." Santosky v. Kramer, 455 U.S. 745, 756 (1982).

In Kramer, the issue was the standard to be applied to parental termination proceedings. In holding that the "clear and convincing" standard was the applicable standard, id, the Court also held that parental rights are of paramount importance:

Lassiter declared it plain beyond the need for multiple citation that a natural parent's desire for and right to the companionship, care, custody, and management of his or her children is an interest far more precious than any property right. When the State initiates a parental rights termination proceeding, it seeks not merely to infringe that fundamental liberty interest, but to end it.

Kramer, 455 U.S. at 759 (citations and internal quotation marks omitted).

Rather than leaving the evidentiary standard to the discretion of the whimsical judiciary, the ACLJ believes that specifying the higher "clear and convincing" standard with citation to Kramer or some other applicable case, to be the best method of insuring parental rights.

FOOTNOTE:

1. The reason for such an action is usually either prompted by teenage rebelliousness or child abuse. As the ACLJ reads the Parental Rights and Responsibilities Act., the Act's strictures would not apply to the latter situation, while it would apply to the former.