My Thoughts on Federal Parental Rights Legislation: #%*&@!!!
Jan 25, 2024 by David Fowler
I got an email last Friday urging me and others like me to support “a critically important piece of legislation in Congress” by U.S. Senators Tim Scott (R-SC) and James Lankford (R-OK). It “would require any imposition on parental rights to be subjected to ‘strict scrutiny’ in federal court, the highest level of legal scrutiny.” I will do no such thing. I’d rather say #%*&@!!! Here is why, and if you don’t care to know, the surprise you get will be deserved.
The legislation is entitled the ‘‘Families’ Rights and Responsibilities Act.” Given that I have spent 29 years at the state level trying to defend the God-given structure of marriage and the family, including parental rights, how could I oppose a bill with such a name? I will give you six reasons.
No. 1: It Federalizes Parental Rights in Disregard of the States
The first thing is that it federalizes what a parent’s rights are. Because of the Supremacy Clause in Article VI of the U.S. Constitution, federal law will overrule what rights state law might affirm.
That Clause also means that the rights of parents in Tennessee will now be decided by federal courts, because federal courts have jurisdiction to interpret federal law.
No. 2: State Judges Are Rendered Impotent to Help Parents
The Supremacy Clause also says, “the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” While state courts can construe a federal statute in a way that is different from a federal court, they probably won’t and, in any event, suits over a federal law are almost always brought in federal court.
The best thing a state court could do is hold that the federal law is unconstitutional, but that isn’t going to happen either.
No. 3: Federalized Parental Rights Will Take a Wrong Turn
Because this is federal law and it will be the supreme law, that means decisions of the Sixth Circuit Court of Appeals interpreting this law will bind federal district court judges in Tennessee on what is or is not a parental right.
In 2018, the Sixth Circuit expressly held that “[d]iscrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex” under the federal employment law, Title VII.
In 2016, with respect to the federal education law, Title IX, the Sixth Circuit re-affirmed that “[s]ex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination."
On January 16th of this year, the United States Supreme Court decided not to review circuit court opinions affirming transgender ideology under Title VII.
I hope you can see the potential for a wrong turn in interpreting this new federal law.
No. 4: It May Undermine Tennessee’s New Law on Child Mutilation
The foregoing means Tennessee’s legislature may have to kiss goodbye to the Sixth Circuit’s decision earlier this year upholding the Tennessee law that does not allow parents to consent to the sterilization of their minor children through “gender transition” procedures.
That court allowed for the democratic process behind the provision’s enactment to withstand constitutional challenge because it refused to apply the “strict scrutiny” standard that is in this new bill. That standard in this new federal law will trump that decision because it will be federal law!
While the bill does say that it does not authorize “a parental action or decision that would result in serious physical injury to the child or that would end life,” it also expressly distinguishes “physical and mental health care decisions.” Many parents today would say that transgender health care is a mental health care decision having physical effects, but is not the same as refusing a blood transfusion that would be a “physical health care decision."
I guess the federal courts that embrace transgender care as mental health care tell us if laws like Tennessee’s are valid.
No. 5: What It Gives It Can Take Away
We forget, as I noted last week, that without any enacted statute, parents already have rights. They are common law rights. And parents can assert them in court against anybody if they are willing to do so, especially against civil government actors.
But if our rights are now seen as coming from a federal statute, then a quick amendment to the language can undo any particular right. Even a favorable ruling by a federal court can be undone by an amendment to the statute’s text.
In sum, these rights, amorphously stated to begin with, are chimerical. What Congress gives by its statutes it can take away.
Moreover, I think it’s likely that over time Congress will go in the wrong direction regarding parental rights given that the Sixth Circuit is headed in the wrong direction and the U.S. Supreme Court, even in reversing Roe v. Wade, still can’t decide if an unborn human being is a “person” under the Constitution. Today, “stuff” flows downhill from SCOTUS to Congress to the people.
No. 6: Congress’s Claim to Constitutional Power is Hellish
The worst, though, is the constitutional basis for Congress thinking it has the power to enact this kind of law. Where is the word “parent” or “parental rights” in the U.S. Constitution? Precisely nowhere!
So, what makes protectors of parental rights think they have the constitutional authority to do this?
For authority, the bill says Congress is relying on the Supreme Court’s fabricated doctrine of “substantive due process” under the Fourteenth Amendment. You don’t have to understand this doctrine, just consider what our two best justices have said about it, and you will know why this is Hellish.
Justice Samuel Alito on substantive due process
Justice Samuel Alito, in the majority opinion overruling Roe v. Wade, made the judicial understatement of the last half-century: “substantive due process . . . [h]as sometimes led the Court to usurp authority that the Constitution entrusts to the people’s elected representatives.”
Authority over abortion and the licensure of marriage readily come to mind as examples of “sometimes.” It took 50 years to undo the former (and we still don’t know if human beings are “persons” under the Constitution), and we’re eight years into doing absolutely nothing about the latter.
Justice Clarence Thomas on substantive due process
Justice Clarence Thomas has been less constrained than Alito. He has written that “‘substantive due process’ is an oxymoron that ‘lack[s] any basis in the Constitution’” and “text and history provide little support for modern substantive due process doctrine.”
Thomas even goes so far as to politely call the doctrine fodder for the gullible: “The notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words.”
What the lawyer for Congress said to me
When I pointed out to the Congressional staff attorney drafting the bill that it was a bad idea for Republicans to lend credence to the doctrine of substantive due process, he said, and this is pretty much a quote, “When Democrats stop abusing the Fourteenth Amendment, then Republicans will too.”
A Warning to Tennessee’s Two State Senators and our State Legislators
If Tennessee Senators Marsha Blackburn and Bill Haggarty turn over the rights of parents in Tennessee to federal judges who don’t even know if the law can countenance the difference between males and females, they should be turned out of office.
And the solution is not enacting a state law on parental rights. Some state legislators are thinking about enacting a similar state law, and it is bad too. Watch out for it.
Conclusion.
It is stuff like this that makes me want to spit nails and say, “#%*&@!!!”
It also makes me realize that some of our best Republican members of Congress are either willing to disregard the Constitution that gives authority over these issues to the states or are clueless about the current cultural and jurisprudential soil that will serve to interpret the words in the law.
That we cheer them on while they take our families over the precipice is somewhere between horrifying and just plain sad to me.
You’ve been forewarned. Now, what are you going to do?
The legislation is entitled the ‘‘Families’ Rights and Responsibilities Act.” Given that I have spent 29 years at the state level trying to defend the God-given structure of marriage and the family, including parental rights, how could I oppose a bill with such a name? I will give you six reasons.
No. 1: It Federalizes Parental Rights in Disregard of the States
The first thing is that it federalizes what a parent’s rights are. Because of the Supremacy Clause in Article VI of the U.S. Constitution, federal law will overrule what rights state law might affirm.
That Clause also means that the rights of parents in Tennessee will now be decided by federal courts, because federal courts have jurisdiction to interpret federal law.
No. 2: State Judges Are Rendered Impotent to Help Parents
The Supremacy Clause also says, “the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” While state courts can construe a federal statute in a way that is different from a federal court, they probably won’t and, in any event, suits over a federal law are almost always brought in federal court.
The best thing a state court could do is hold that the federal law is unconstitutional, but that isn’t going to happen either.
No. 3: Federalized Parental Rights Will Take a Wrong Turn
Because this is federal law and it will be the supreme law, that means decisions of the Sixth Circuit Court of Appeals interpreting this law will bind federal district court judges in Tennessee on what is or is not a parental right.
In 2018, the Sixth Circuit expressly held that “[d]iscrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex” under the federal employment law, Title VII.
In 2016, with respect to the federal education law, Title IX, the Sixth Circuit re-affirmed that “[s]ex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination."
On January 16th of this year, the United States Supreme Court decided not to review circuit court opinions affirming transgender ideology under Title VII.
I hope you can see the potential for a wrong turn in interpreting this new federal law.
No. 4: It May Undermine Tennessee’s New Law on Child Mutilation
The foregoing means Tennessee’s legislature may have to kiss goodbye to the Sixth Circuit’s decision earlier this year upholding the Tennessee law that does not allow parents to consent to the sterilization of their minor children through “gender transition” procedures.
That court allowed for the democratic process behind the provision’s enactment to withstand constitutional challenge because it refused to apply the “strict scrutiny” standard that is in this new bill. That standard in this new federal law will trump that decision because it will be federal law!
While the bill does say that it does not authorize “a parental action or decision that would result in serious physical injury to the child or that would end life,” it also expressly distinguishes “physical and mental health care decisions.” Many parents today would say that transgender health care is a mental health care decision having physical effects, but is not the same as refusing a blood transfusion that would be a “physical health care decision."
I guess the federal courts that embrace transgender care as mental health care tell us if laws like Tennessee’s are valid.
No. 5: What It Gives It Can Take Away
We forget, as I noted last week, that without any enacted statute, parents already have rights. They are common law rights. And parents can assert them in court against anybody if they are willing to do so, especially against civil government actors.
But if our rights are now seen as coming from a federal statute, then a quick amendment to the language can undo any particular right. Even a favorable ruling by a federal court can be undone by an amendment to the statute’s text.
In sum, these rights, amorphously stated to begin with, are chimerical. What Congress gives by its statutes it can take away.
Moreover, I think it’s likely that over time Congress will go in the wrong direction regarding parental rights given that the Sixth Circuit is headed in the wrong direction and the U.S. Supreme Court, even in reversing Roe v. Wade, still can’t decide if an unborn human being is a “person” under the Constitution. Today, “stuff” flows downhill from SCOTUS to Congress to the people.
No. 6: Congress’s Claim to Constitutional Power is Hellish
The worst, though, is the constitutional basis for Congress thinking it has the power to enact this kind of law. Where is the word “parent” or “parental rights” in the U.S. Constitution? Precisely nowhere!
So, what makes protectors of parental rights think they have the constitutional authority to do this?
For authority, the bill says Congress is relying on the Supreme Court’s fabricated doctrine of “substantive due process” under the Fourteenth Amendment. You don’t have to understand this doctrine, just consider what our two best justices have said about it, and you will know why this is Hellish.
Justice Samuel Alito on substantive due process
Justice Samuel Alito, in the majority opinion overruling Roe v. Wade, made the judicial understatement of the last half-century: “substantive due process . . . [h]as sometimes led the Court to usurp authority that the Constitution entrusts to the people’s elected representatives.”
Authority over abortion and the licensure of marriage readily come to mind as examples of “sometimes.” It took 50 years to undo the former (and we still don’t know if human beings are “persons” under the Constitution), and we’re eight years into doing absolutely nothing about the latter.
Justice Clarence Thomas on substantive due process
Justice Clarence Thomas has been less constrained than Alito. He has written that “‘substantive due process’ is an oxymoron that ‘lack[s] any basis in the Constitution’” and “text and history provide little support for modern substantive due process doctrine.”
Thomas even goes so far as to politely call the doctrine fodder for the gullible: “The notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words.”
What the lawyer for Congress said to me
When I pointed out to the Congressional staff attorney drafting the bill that it was a bad idea for Republicans to lend credence to the doctrine of substantive due process, he said, and this is pretty much a quote, “When Democrats stop abusing the Fourteenth Amendment, then Republicans will too.”
A Warning to Tennessee’s Two State Senators and our State Legislators
If Tennessee Senators Marsha Blackburn and Bill Haggarty turn over the rights of parents in Tennessee to federal judges who don’t even know if the law can countenance the difference between males and females, they should be turned out of office.
And the solution is not enacting a state law on parental rights. Some state legislators are thinking about enacting a similar state law, and it is bad too. Watch out for it.
Conclusion.
It is stuff like this that makes me want to spit nails and say, “#%*&@!!!”
It also makes me realize that some of our best Republican members of Congress are either willing to disregard the Constitution that gives authority over these issues to the states or are clueless about the current cultural and jurisprudential soil that will serve to interpret the words in the law.
That we cheer them on while they take our families over the precipice is somewhere between horrifying and just plain sad to me.
You’ve been forewarned. Now, what are you going to do?
