The Constitutional Right to Parent

Welcome to Family Policy Matters, an engaging and informative weekly radio show and podcast produced by the North Carolina Family Policy Council.

Hi, this is John Rustin, President of NC Family, and we're grateful to have you with us for this week's program. It's our prayer that you will be informed, encouraged, and inspired by what you hear on Family Policy Matters, and that you will feel better equipped to be a voice of persuasion for family values in your community, state, and nation. And now, here is our host of Family Policy Matters, Tracey Devette Griggs. Thanks for joining us this week for Family Policy Matters. Astonishingly, we're seeing numerous challenges across our nation regarding a parent's rights to decisions about their own children. Well, what exactly does the law say about parental rights?

How far they extend, when they are legally limited, and what should parents know about their rights before engaging with schools, doctors, and politicians? Well, with answers to those questions, we're pleased to have with us today Jeanette Doran, President and General Counsel of the North Carolina Institute for Constitutional Law. That organization recently published a helpful parental rights guide, and she's here to talk to us today about that. Jeanette Doran, welcome to Family Policy Matters.

Well, thank you so much for having me. So, North Carolina has been involved in some pretty high-profile parental rights cases. Can you tell us a little bit about those? The big North Carolina cases have usually revolved around custody disputes between parents or between parents and grandparents. We had one pretty significant one that was in the adoption context. We haven't had North Carolina cases, though, developing the issue in the context of government attacks on parents. That's for the most part, and there have been a few tangential matters.

Those have arisen in kind of abuse cases, and that's a good sign. We haven't seen cases where the government has just said, hey, we're taking over because we like our way better. But we do need to be vigilant. We need to make sure that things stay that way and that we don't end up becoming one of those states where every time we turn around, government is trying to tell us how to raise our kids and how to be moms and dads.

Okay. Give us a few examples of the ways that government is trying to take over in other states. I'm sure folks listening to your podcast have probably heard some of the horror stories where we've got schools coming in and trying to really micromanage things that are going on in the home on the grounds that they're being picked up in the background on Zoom, for example, when so many schools were transitioning to remote learning. We also see it when we have these constant attacks on statutes that require parental notification where a minor girl is seeking an abortion. So we see a lot of that kind of litigation all across the country. But fortunately, we're not yet seeing a ton of that here in North Carolina.

But that doesn't mean that we shouldn't be or don't need to be vigilant about it. Sometimes parents get scared when they talk with schools or even neighbors, they feel bullied and so they back down. And that's also a trend that's harder to track in terms of litigation because people just give up.

They get scared and give up. So what we want to do here at NCICL is make sure that parents know what their rights are so they can stand up for them and not get bullied by government bureaucrats. Well, it's probably good for us to know then that the U.S. and North Carolina constitutions both have something to say about parental rights.

Tell us what that is. If we look first to the U.S. Constitution, a lot of the cases that we see rely on the due process clause of the 14th Amendment. And the wealth state equivalent of that in the North Carolina Constitution is at Article 1, Section 19 in our Declaration of Rights. We also see some case law that talks about the 9th Amendment to the U.S. Constitution.

That's something a lot of folks don't hear much about. But that's a constitutional amendment in the Bill of Rights that says the enumeration in the Constitution of certain rights shall not be construed to deny or disparage other rights retained by the people. So just because there isn't a specific portion in the U.S. Constitution or the state constitution that says there is a constitutional right to parent doesn't mean it doesn't exist. And in fact, when we talk about the sort of fundamental liberty interests, fundamental liberty rights, the right to parent your own children has been described as the oldest of the fundamental liberty interests. We have at least a century of U.S. constitutional jurisprudence explaining the history and culture of Western civilization reflects a strong tradition of parental rights. In fact, even in 1972, the U.S. Supreme Court said that that right was so well established that it was, quote, beyond debate as an enduring American tradition. So fortunately, because we have all this jurisprudence that this is a constitutional right, most of the time when we look at statutes, we're seeing statutes that comply with the constitutional right to parent. And sometimes we're seeing either current or proposed legislation that would sort of highlight what is already a constitutional principle. So why do you think some state governments feel so threatened by parents' rights to make decisions about their own children?

Oh, I think that comes down to a control issue. And that's unfortunate, but I think we've gotten to a point in American politics and culture when we no longer have the same kind of respect for the prerogatives of parents to parent their children. Couple that with agenda-driven activists, whether they're liberal or progressive or whatever their ideology is, we've got these activist groups that are coming in and they just want power. And because they want so much power and because they have so little respect for the right of parents to parent, so little respect really for the family unit, they're taking every opportunity they can, either culturally, legislatively, or through litigation sometimes, to gain their power over the current circumstances. And even projecting that to future ambitions, they're looking at a way to say to our young children, rely on government, rely on us, rely on the woke mob, rely on social injustice, warriors, what have you.

Don't bother listening to your parents. And I think that's a cultural phenomenon that is bleeding over into the law. You're listening to Family Policy Matters, a weekly radio show and podcast of the North Carolina Family Policy Council. This is just one of the many ways NC Family works to educate and inform citizens across North Carolina about policy issues that impact North Carolina families. Our vision is to create a state and nation where God is honored, religious freedom flourishes, families thrive, and life is cherished. For more information about NC Family and how you can help us to achieve this incredible vision for our state and nation, visit our website at ncfamily.org. Again, that's ncfamily.org. And be sure to sign up to receive our email updates, action alerts, and of course, our flagship publication, Family North Carolina Magazine.

We'd also love for you to follow us on Facebook, Instagram, and Twitter. There are times, of course, when something is going on inside the family that somebody does need to intervene. So how do we balance the rights of children and the rights of parents, especially in the areas like privacy, when it comes to medical or school records, but also for other issues such as abuse?

Well, that's a tough one. So many of these issues are really fact-driven. I mean, consider a sad situation where we've got a child being abused. Well, a parent shouldn't be allowed to continue beating their child until investigators, you're not allowed to examine the child and you're not allowed access to any medical records of, you know, all these countless visits to the emergency room.

But that's an extreme end. We also can't have a government willy-nilly claim without support that a child's record should be turned over to the government. And courts are clear that the right to parent, like other rights, isn't absolute. Even back in 1944, the U.S. Supreme Court upheld the conviction of a woman who had been charged with violating child labor laws for allowing her niece and her sons, she had custody over the niece and she was letting them work as street preachers well into the night. And the court said her conviction could stand, the constitutional right to parent didn't extend to putting the child in that kind of environment where she's standing at a street intersection preaching in the middle of the night.

But even back then, the court was clear that it was not, in its words, laying a foundation for any and every state intervention. So it's always going to be a balancing test. And when we look at case law that talks about this constitutional right to parent, there's a lot of discussion in those cases about the origin of that constitutional right and that it comes from not just the right to the comfort and care and companionship between a parent and child, but also because of the parent's massive responsibility to bring up their children. And as a parent itself, I can tell you that is the biggest responsibility out there, as I'm sure parents around the world would agree. What would you say are the most important things for parents to know if they are facing what they consider to be a challenge to their parental rights?

I think the first thing that they need to know is before there's even a challenge. So try to take a few minutes to take a look at various online resources, including the brief memo that we put together about, we here at North Carolina Institute for Constitutional Law, put together about the rights of parents, but educate yourself about that from our resources, from resources with other organizations. And if you are challenged, know what your rights are, seek out support. There are a lot of a lot of groups that exist in various contexts that can help parents find legal assistance, religious liberty groups, education groups, family groups.

They often have either formal or even informal networks that can help connect parents in need with legal support. But start before there is a problem, before there's a challenge. Just know generally what your rights are as a parent. So you did mention that we need to remain vigilant. And just because maybe we're not seeing some of the challenges that other states are seeing right now, that we should keep an eye out. What do you suggest would be ways that our policymakers could strengthen parental rights here in North Carolina?

First and foremost is just the basic. They need to be sure that they are listening to the people. They should consult with the people they represent. But in more nuts and bolts, we look at things like there's a Parental Bill of Rights that was recently proposed by some friends of mine over at the John Locke Foundation and similar minded organizations have supported the idea of a Parental Bill of Rights.

It shouldn't be necessary, but times are what they are. I think that's a good approach for legislators to look at. Look at a Parental Bill of Rights just to highlight and reinforce what we already know to be the constitutional framework for the right to parents.

But legislation that particularizes that and flushes that out would prove to be very useful in preventing erosion of the constitutional right to parent. And voters, frankly, voters need to hold officials' feet to the fire, follow what's going on at the local level and at the state level. Also pay attention to judicial races. Judicial races are critically important. If we have activist judges, it doesn't matter what we have in statute or in the Constitution, if we're going to have some activist judge who just goes out and decides to ignore or rewrite what the law is. So follow those races as well as school board races and county commission races and state legislative races.

We're just about out of time. Jeanette Doran, where can our listeners go to find a copy of that very helpful guide, Parents, Constitutional Right to Parent Without Government Interference, What Every Parent Needs to Know? That can be found on our website, which is NCICL.org. That stands for North Carolina Institute for Constitutional Law.

All right. Jeanette Doran, president and general counsel of the North Carolina Institute for Constitutional Law, thank you so much for being with us today on Family Policy Matters. You've been listening to Family Policy Matters. We hope you enjoyed the program and plan to tune in again next week to listen to the show online and to learn more about NC Families work to inform, encourage and inspire families across North Carolina. Go to our website at NCFamily.org. That's NCFamily.org. Thanks again for listening and may God bless you and your family.