Last week a news story reminded me that I overlooked the 100th anniversary of the U.S. Supreme Court killing real parental rights in our country back on June 1st . The story was about an Illinois law requiring annual mental health screenings for public school students that will take effect in the 2027 school year. However, if you think home-schooling solves the parental rights problem, or it can be fixed by with parental rights legislation you don’t understand the nature of the problem.
The problem is that authority, as such, is no longer a real thing in today’s climate of opinion. It hasn’t been since the institutional church’s leaders and the leaders of every other sphere in America began to abandon metaphysical and cosmological considerations in late 19th century. That may sound abstract and obtuse, but it’s vitally important.
The absence of metaphysics and cosmology in our thinking means nothing has any given meaning. The meaning associated with words is supplied by those with enough power over others to decide upon that definition for all of us. And new circumstances and challenges require that the meaning of a word as we once knew it must give way to new a one.
This is why “mother” and “father” are now just gendered nouns. This is why a child can have two mothers and two fathers. The words no longer pertain to God-given offices with a jurisdictional authority and responsibility prescribed by God.
Christian parents, and concerned grandparents who understand what has happened must ask: Where does the authority and any associated power of parents relative to their child now come from and what defines the nature or scope of it?
In today’s legal “climate of opinion,” parental rights are meted out by state legislative bodies. But their measure must gain the approval of a federal judge in the event of an alleged violation, if not finally that of the United States Supreme Court.
Consider this two-year old statute on parental rights enacted by the Tennessee legislature at the behest of Alliance Defending Freedom (”ADF”); its equivalent has been adopted in multiple states.
36-8-103. (a) The liberty of a parent to the care, custody, and control of the parent's child, including the right to direct the upbringing, education, health care, and mental health of the child, is a fundamental right.
(b) A government entity shall not substantially burden the fundamental rights of a parent as provided under this section unless the government entity demonstrates that the burden, as applied to the parent and the child, is required by a compelling governmental interest of the highest order and is the least restrictive means of furthering that compelling governmental interest.
That sounds great, but we must ask where the “fundamental right” is to be found.
According to almost all the Christian legislators, lawyers, and policy advocates I know, we look to the opinions of the United States Supreme Court. One of the most often cited, especially by home education advocates, is Pierce v. Society of Sisters. So, let’s take a look at it.
Law professor David Upham has incisively written the following in a law review article about the rationale not used for parental rights in Pierce:
Pierce was authored by jurists unfriendly to natural-law principles, whether Catholic or otherwise. . . . [T]he Court conspicuously failed to ground the rights of parents in biological maternity or paternity. (Emphasis supplied)
In this very short video, Jeff Shafer, head of the Hale Institute, makes the same point in reference to the Court’s disavowal of creation as a ground for parental rights.
Their insights into Pierce seem to have been largely ignored even by the Christians who like to cite it as “authority..”
What, then, was the foundation of parental rights in Pierce if not natural law and its antecedent, Divine Law; or in their practical application, common law? Upham answers:
[T]he Pierce Court indicated that custody was itself the foundation, and on this foundation rested the right to educate the child: The “right” and “duty” to educate a child belonged to all those “who nurture him and direct his destiny.” Accordingly, this “liberty” was coextensive with this control: “to direct the upbringing and education of children under their control.” (emphasis supplied)
Again, I turn to Upham for an answer:
The Court’s opinion . . . indicated that the right to direct a child’s education results . . . simply as a necessary concomitant to the power of custody, however defined and assigned. For the Court, it was not natural parenthood that gave both custodial and educational rights; it was custodial power—whether resulting from biology, positive law, or otherwise—that gave educational rights. (emphasis supplied)
Notice that the source of parent’s power is irrelevant. I hope Christians appreciate that this is the vanquishing in law of real parental rights as from God.
But where does this kind of “power” rooted in mere custody lead?
To appreciate the preceding question, consider the language employed in a brief filed by ADF in the U.S. Court of Appeals for the Eighth Circuit. It was in support of a parent’s right to know about their child’s gender identity expressions while attending classes in a public school district in Iowa.
The brief asserts (p. 19) that “‘the interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interested recognized by [the Supreme] Court. Troxel v. Granville.’” It quotes and cites Pierce on page 20. And on that same page, it asserts “that the traditional presumption that the parents act in the best interest of their child should apply,” quoting the Court’s 1979 decision in Parham v. J.R. This right was specifically said to include a parent’s authority to determine his or her child’s “need for [mental health] care or treatment” (p. 21).
Sounds good until you compare that to how a federal district court in Arkansas ruled on a transgender case involving a minor child. The Court used the same quotations from the same decisions but the result is not one ADF would support.
The Court held that the state’s laws prohibiting medical care to treat a child’s gender dysphoria violated a parent’s right to act on what they thought met their child’s need for mental health care or treatment.
The ACLU used the same cases and the same key precepts employed by ADF, but the result in Arkansas allowed parents to mutilate their child’s body. In June, in U.S. v. Skrmetti, the U.S. Supreme Court held that a state’s law could come down on either side of whether medical interventions could be used to treat a child’s gender dysphoria!
The point of the comparison is this: Without anything more than “custody and control” as a ground for parental rights, how can a court decide what the nature and scope of the right is?
Relying on Supreme Court decisions over the last 100 years about parental rights is now a crap shoot—which side will the legislature and ultimately, the Supreme Court, fall on?
It might seem so. But not so fast.
Saying the right is “fundamental,” which the Tennessee statute did, means nothing so long as the right is not tied to any objective reality about what it means to be human and what humans, and particularly the parents of un-emancipated humans, are for.
But, you may ask, “Wasn’t that problem rectified by the long list of various rights listed in the statute?” If you think that, consider the meaning of the legal “weasel words” in the statute surrounding that list.
Under the statute and in others like Tennessee’s, the government’s reason for interfering with a parent’s decision on that list must be “compelling” and of the “highest order.” Sounds good, and I even once thought so. But now I have to ask: Based on what and in whose opinion? Who or what provides substantive content to those words?
Moreover, government interference is okay if the burden on the parent’s asserted right is not “substantial.” But how much is too much? And does “substantial” depend on what the particular right is? For example, does the denial of God’s intention for sexual intercourse get more protection than the denial of God’s providence in teaching history or in the way human origins is taught?
I don’t have any answers to these questions if there are no metaphysical and cosmological realities to consider. And neither does a federal judge. In fact, no one can under that scenario.
Here is my conclusion:
“Parental rights” is now just a power game, and Christians are effectively conceding that the determinative power rests with a U.S. Supreme Court that has denied any essential givenness to our existence or any given cosmological ordering of things.
The foregoing explains why I think trying to muscle up enough votes to win a particular favorable outcome in the short term by manipulating Supreme Court decisions is not a Christian view of law, as I’ve defined it. The win will prove to be, in the long-term, only a Pyrrhic victory. Arguing these newer precedents rather than the older ones does nothing to restore the lost understanding about the nature of reality that led to the demise of objectively existing and determinable parental rights.
It is time to begin recovering and asserting a Christian view of law. I explain how to do that on Substack. However, be forewarned: Working toward that end may mean losing a particular case now and having to place our trust going forward in God keeping His covenant promises on His timetable instead of ours.
But isn’t that how the righteous live and how they model living by faith to the next generation? Living by faith in God’s covenant promises is the metaphysical essence of the Christian’s life in Christ, and that is how God’s integrated cosmos works.
