Why a Statute in a "Safe" State?
Tuesday morning, attorney Scott Woodruff spoke on behalf of ParentalRights.org before a hearing of the House Judiciary Committee of the Maine state legislature. Woodruff testified in support of LD 472 as amended, a bill to protect the fundamental right of parents as a matter of state law.
Thankfully, Maine’s courts have a solid history of recognizing and respecting fundamental parental rights, which could prompt some critics to argue that LD 472 is unnecessary. But Scott rebuts this in the written testimony he shared with that committee.
“Judge-made law, or common law, is relevant only in areas where the legislature is silent,” Woodruff explains. “If the Maine legislature continues to be silent, the job of protecting parents will fall by default into the laps of judges. But this is the least satisfactory solution because judge-made law is the least democratic form of law.”
What is more, the judicial precedent is already weakened at the federal level, which can work its way down to the states as well. Two of Maine’s most recent parental rights cases, Rideout v. Riendeau 2000 ME 198, 761 A.2d 291, and Guardianship of David C. 2010 ME 136, 10 A.3d 684, hold parental rights to be fundamental – but are built on a now-flawed base.
The Maine Supreme Court in Rideout summarizes Maine’s historic position very clearly: “[The Due Process Clause of the 14th Amendment] provides heightened protection against state intervention in parents’ fundamental right to make decisions concerning the care, custody, and control of their children… [which] mandates strict scrutiny.”
But the court in Rideout, as in the later David C., cites the U.S. Supreme Court’s Troxel ruling in making its judgment. Frankly (and commendably), the Maine court found a rudder to steer by in spite of the Troxel decision, and not because of it. This is this same Troxel case for which Justice Thomas wrote in his concurring opinion that although “[t]he opinions of the plurality, Justice Kennedy, and Justice Souter recognize such a [fundamental] right… curiously none of them articulates the appropriate standard of review. I would apply strict scrutiny to infringements of fundamental rights.”
To put it simply, the very case on which Maine’s strict scrutiny standard now rests is one in which six U.S. Supreme Court justices did away with the strict scrutiny standard.
Is it hard to imagine that state judges may one day follow the same path and do away with this heightened level of protection for your rights? It has already happened in several states, including California.
In Fenn v. Sheriff, the California Court of Appeals declared, “The decision of father and his wife about whether and under what conditions grandparents should have visitation with their grandchildren is entitled to ‘special weight’ under Troxel – assuming both are fit parents – but no more.”
Sadly, a large majority of the states where parental rights are protected are relying on judge-made law rooted in Troxel. There is nothing stopping judges in these states from reaching the same conclusion as the California court, removing real protection for parental rights with the stroke of a pen.
In ten states, however, that is not the case. In ten states, the legislatures have not remained silent, and judges have a clear statutory direction on parental rights cases regardless of Troxel or any other case law. In states as different as Nevada, Arizona, Oklahoma, and Virginia, parental rights are protected as fundamental and protected by strict scrutiny as a matter of state law.
Ultimately, the proposed Parental Rights Amendment will put these rights – and their heightened protection – into the text of the U.S. Constitution, protecting families in every state. Until that happens, though, we continue to work in the states to bring about protection via statute.
Meanwhile, we also continue to work on amending federal laws to protect parents. Last week ParentalRights.org President Jim Mason met with the head of the Federalist Society to discuss plans to improve the Child Abuse Prevention and Treatment Act (CAPTA) when it comes up for renewal later this year. No federal law should provide monetary incentives to states to ignore or abuse the parental rights that keep our families safe.
Thank you for standing with us as we work to preserve parental rights through all of these efforts. If you have not done so lately, perhaps you could take a moment today to send a donation to ParentalRights.org to help us continue the work? Regardless, we are thankful for your important place on our nationwide team.
Director of Communications & Research