THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Monday, March 4, 1996 TAG: 9603020024
SECTION: FRONT PAGE: A6 EDITION: FINAL
TYPE: Another View
SOURCE: By MICHAEL FARRIS
LENGTH: Long : 109 lines
I recently got a call from columnist George Will's staff. Mr. Will was preparing a column on parental rights and would we, the assistant asked, help him do research? Our organization, which is backing the Parental Rights and Responsibilities Act in Congress, was happy to help.
Imagine our shock when Mr. Will's column trashed the parental-rights movement. He criticized both state and federal legislative efforts to protect parental rights from government intrusion because ``it is injurious to democracy to write into law language certain to breed litigation that will draw courts even deeper into the unjudicial business of reviewing and rearranging the details of social life.''
Give me an analytical break.
Mr. Will thinks it is undemocratic for parents to ask their elected officials to pass a law that makes it more difficult for the government to interfere with their children. Say huh?
Parents in Washington state were taken to court because their 13-year-old daughter became upset when they wouldn't let her smoke marijuana and sleep with her boyfriend. The parents argued that their rules were reasonable and they should be left alone. But in 1980, the Washington Supreme Court ruled that the state could take custody solely because of conflict between parent and child.
The wayward girl in that case is now in her 30s. She accompanied me to the Senate hearing on the PRRA to support the bill. She now says the government should have told her to go home and obey her parents.
Like that case, the vast majority of parental-rights claims arise when the government takes a parent to court. Parents are simply defending their prerogative to make decisions concerning education, health care, religious upbringing and discipline.
Mr. Will's column blasts the 14th Amendment theories that have protected parental rights in some of the greatest Supreme Court decisions of this century.
When the Oregon Ku Klux Klan and others organized a ballot initiative in the 1920s which banned all private education, two private schools challenged the law in federal court. In Pierce vs. Society of Sisters, the Supreme Court ruled Oregon's law violated the right of parents to direct the upbringing of their children based on the 14th Amendment provision which declares that ``no person shall be denied life, liberty, or property without due process of law.''
Mr. Will thinks Pierce was wrong! It is ``wrong'' because it employs a legal theory called ``substantive due process.'' Only a few cranky constitutional lawyers like myself - and apparently one cranky columnist - have any idea what substantive due process is all about.
Mr. Will and others believe that this clause protects only procedural rights (e.g., the right to counsel, a neutral judge and notice), not substantive rights like parental rights or religious freedom. They say, ``Look at the words `due process' - obviously it's about procedure.'' However, one must not overlook the word ``liberty.'' The issue is not whether ``due process'' has substance; the correct question is whether the word ``liberty'' has substance.
This arcane debate has terribly important consequences.
Mr. Will's theory says that if government wants to make all educational choices for your child and as long as you have an attorney and get advance notice of the hearing, the government wins. You have no substantive parental rights.
I should have known better than to help Mr. Will. But I had forgotten about a column he wrote in 1990 when the Supreme Court trashed our 200-year history of religious liberty in Employment Division vs. Smith. He praised Smith and called on the court to overturn Wisconsin vs. Yoder, the premier case which blends parental rights and religious freedom into a fundamental constitutional right. Will wrote:
``A central purpose of America's political arrangements is the subordination of religion to the political order, meaning the primacy of democracy. The founders, like Locke before them, wished to tame and domesticate religious passions of the sort that convulsed Europe. They aimed to do so not by establishing religion but by establishing a commercial republic - capitalism. They aimed to submerge people's turbulent energies in self-interested pursuit of material comforts.''
Money first. Religious freedom subordinated. How dare he pin such a me-generation view on the founders?
Fortunately, in 1993 Congress passed the Religious Freedom Restoration Act which overturned the Smith decision. It passed unanimously in the House and 98-2 in the Senate - which shows just how out of the mainstream Will's theories are.
Now Mr. Will eschews the PRRA because parents are using the political process to force courts to use the highest legal standard in parental-rights cases.
Mr. Will has a lot of explaining to do.
Why is it conservative to favor government intrusions into the family? Why is it antidemocratic to use the political process to give parents greater rights when the government calls them into court? Why do families and churches have no substantive rights?
I thought freedom was pretty doggone important to our founders. And the freedom to worship God and raise your own kids is just about as fundamental as this country gets.
If you want to protect your family, I say you should support the PRRA and fight like the dickens for your substantive rights when they drag you into court. Mr. Will apparently thinks you should just go along compliantly so long as they tell you the court date in advance. After all, giving up your substantive parental rights will give you more time for the ``self-interested pursuit of material comforts.'' That's what this country is all about, by George. MEMO: Michael Farris is president of the Home School Legal Defense
Association. He was the 1990 Republican nominee for lieutenant governor
of Virginia.
by CNB