Did the Sixth Circuit Court of Appeals Make Parental Rights Illusory?
Oct 12, 2023 by David Fowler
The U.S. Court of Appeals for the Sixth Circuit recently held constitutional Tennessee’s new law on the administration of medical techniques and the provision of pharmaceuticals to minors that could render them sterile. For that, those who believe biological sex and what we now call gender are supposed to be aligned with one another should be grateful. But one of the reasons the Court gave for its conclusion is ominous. If you are a parent or grandparent, you need to read on.
At this link is a short summary of what I found good about the opinion and what I found troublesome. But let me call one particularly troublesome thing to your attention.
The State Has “Constitutional Control” Over Your Family
The Court wrote that states possess “constitutional control over parental discretion” subject only to “a classic procedural due process form of relief,” meaning the right to notice that the state is going to do something to your child and a right of the parent to be heard in advance. (emphasis supplied) What does this mean?
First, for those who believe parents have at least certain rights that do not come from civil government and that civil government is obligated to recognize them and refrain from interference, the Sixth Circuit seems to think you are wrong. The state has a right under the U.S. Constitution to “control your discretion” so long as it does so in a procedurally correct manner.
“A procedurally correct manner” means that civil government can take action toward a child and against a parent’s decision for that child so long as the parent is notified of what it plans to do, and the parent has a right to be heard.
If you think yourself a good parent (or think your adult children are good parents), that flimsy procedural protection against a constitutional power in your state government to second-guess you should scare the bejabbers out of you.
On the other hand, we all think some parents are horrible. For example, those who choose to starve their children or burn them with cigarettes as a means of discipline should be checked by civil government, after notice and a fair hearing, in the “procedurally correct manner.”
I hope the Court did not mean what it said, but we would do well to break it down further because parental rights are increasingly being demanded by parents and resisted by government officials.
Where Did the State’s Constitutional Right Come From?
To be honest, I don’t know. As with abortion and marriage, there is nothing in the U.S. Constitution about who is in control of family law. That means the U.S. Constitution left that issue to the states. Nothing in the Fourteenth Amendment altered that.
So, in that sense, I could agree that the U.S. Constitution leaves the field of family law to the states, for it “to control.” And, for purposes of the US Constitution, the state’s control is subject only to the limitations in the Fourteenth Amendment like due process of law and equal protection of the law. For example, a state law could not say that private school options are available only to Caucasian parents. But apart from obvious examples, what is under the state’s control?
What Defines the Limits of the State’s “Constitutional Control” Over Parents
Given that all of us should agree that there are some decisions a state’s judges and its legislative bodies should not allow parents to make, the question is what defines for those officials the outer limits to those decisions?
That question leads to this question: Are those limits determined by a judge or the legislature based on whatever the current fad may be or is there something objective about those limits (and what is within them) that endures over time that constrains vote-of-the-moment arbitrary kind of law?
The answer to these two questions depends completely on what kind of beings we think we are. Yet, that is the one thing courts, including the Sixth Circuit in its decision, will not address.
But there is a reason for their reticence. No legislative body or policy organization will frame a law or make a legal argument in court that puts this question squarely to them, even in the context of transgenderism. I tried to do that in our state’s transgender law and failed.
Until someone puts the question of human meaning on the table (we won’t even do it with abortion!), and it is answered, your relationship to your child or your adult child’s relationship to your grandchild is strictly a political matter—how many votes on the court or in the legislature there are for your preferred parenting decision.
The Conclusion of the Matter
In sum, parents no longer have any objectively defined, pre-political rights that judges and elected officials are under any objective moral obligation not to transgress.
Welcome to the new secular order in which God and His creational purposes and covenantal laws pertaining to human beings and human relationships are no longer relevant.
If you don’t like what you are reading, there is one way out: a sweeping repentance toward God for us thinking He and His Word are irrelevant to law and human society and asking Him to have mercy upon us.
And the best way to demonstrate such repentance is real is to turn away from pragmatic arguments over abortion to argue the unborn are persons and to start supporting civil laws like the Marital Contract Recording Act that affirms civil government is obligated to recognize that a man and a woman create a marital relationship by their vows, not by virtue of a state license (permission).
In God’s cosmos, valuing life and respecting and upholding the true nature of the marital relationship through which life is to come provide the creational predicate for objective and real parental rights. They all three hang together and are of one piece. And His cosmos is the only one in which we can live.
At this link is a short summary of what I found good about the opinion and what I found troublesome. But let me call one particularly troublesome thing to your attention.
The State Has “Constitutional Control” Over Your Family
The Court wrote that states possess “constitutional control over parental discretion” subject only to “a classic procedural due process form of relief,” meaning the right to notice that the state is going to do something to your child and a right of the parent to be heard in advance. (emphasis supplied) What does this mean?
First, for those who believe parents have at least certain rights that do not come from civil government and that civil government is obligated to recognize them and refrain from interference, the Sixth Circuit seems to think you are wrong. The state has a right under the U.S. Constitution to “control your discretion” so long as it does so in a procedurally correct manner.
“A procedurally correct manner” means that civil government can take action toward a child and against a parent’s decision for that child so long as the parent is notified of what it plans to do, and the parent has a right to be heard.
If you think yourself a good parent (or think your adult children are good parents), that flimsy procedural protection against a constitutional power in your state government to second-guess you should scare the bejabbers out of you.
On the other hand, we all think some parents are horrible. For example, those who choose to starve their children or burn them with cigarettes as a means of discipline should be checked by civil government, after notice and a fair hearing, in the “procedurally correct manner.”
I hope the Court did not mean what it said, but we would do well to break it down further because parental rights are increasingly being demanded by parents and resisted by government officials.
Where Did the State’s Constitutional Right Come From?
To be honest, I don’t know. As with abortion and marriage, there is nothing in the U.S. Constitution about who is in control of family law. That means the U.S. Constitution left that issue to the states. Nothing in the Fourteenth Amendment altered that.
So, in that sense, I could agree that the U.S. Constitution leaves the field of family law to the states, for it “to control.” And, for purposes of the US Constitution, the state’s control is subject only to the limitations in the Fourteenth Amendment like due process of law and equal protection of the law. For example, a state law could not say that private school options are available only to Caucasian parents. But apart from obvious examples, what is under the state’s control?
What Defines the Limits of the State’s “Constitutional Control” Over Parents
Given that all of us should agree that there are some decisions a state’s judges and its legislative bodies should not allow parents to make, the question is what defines for those officials the outer limits to those decisions?
That question leads to this question: Are those limits determined by a judge or the legislature based on whatever the current fad may be or is there something objective about those limits (and what is within them) that endures over time that constrains vote-of-the-moment arbitrary kind of law?
The answer to these two questions depends completely on what kind of beings we think we are. Yet, that is the one thing courts, including the Sixth Circuit in its decision, will not address.
But there is a reason for their reticence. No legislative body or policy organization will frame a law or make a legal argument in court that puts this question squarely to them, even in the context of transgenderism. I tried to do that in our state’s transgender law and failed.
Until someone puts the question of human meaning on the table (we won’t even do it with abortion!), and it is answered, your relationship to your child or your adult child’s relationship to your grandchild is strictly a political matter—how many votes on the court or in the legislature there are for your preferred parenting decision.
The Conclusion of the Matter
In sum, parents no longer have any objectively defined, pre-political rights that judges and elected officials are under any objective moral obligation not to transgress.
Welcome to the new secular order in which God and His creational purposes and covenantal laws pertaining to human beings and human relationships are no longer relevant.
If you don’t like what you are reading, there is one way out: a sweeping repentance toward God for us thinking He and His Word are irrelevant to law and human society and asking Him to have mercy upon us.
And the best way to demonstrate such repentance is real is to turn away from pragmatic arguments over abortion to argue the unborn are persons and to start supporting civil laws like the Marital Contract Recording Act that affirms civil government is obligated to recognize that a man and a woman create a marital relationship by their vows, not by virtue of a state license (permission).
In God’s cosmos, valuing life and respecting and upholding the true nature of the marital relationship through which life is to come provide the creational predicate for objective and real parental rights. They all three hang together and are of one piece. And His cosmos is the only one in which we can live.
