Last week I explained that “parental rights” as a term expressing a form of authority not predicated on legislation and Supreme Court rulings was vanquished by the U.S. Supreme Court in 1925. That year, the Court predicated parental rights on mere custody of a child.
The parent is to “nurture” the child, but what “nurture” means depends on what you think a human being is and what he or she is for. Sadly, the Court has scrupulously avoided the question of human meaning for the last several decades.
Moreover, as I explained, parental rights legislation and reliance on U.S. Supreme Court parental rights decisions that are disconnected from natural procreation and creation is a crap shoot, a power game. There is nothing higher to which any parent can appeal than the opinion of the person or persons having the power of civil government behind them.
As I have often said, quoting the statement of Justice Oliver Wendell Holmes in Erie Railroad v. Tompkins (1938), even common law rights that Christian parents would rely on don’t exist “without some definite authority behind it,” and the “only authority is the State.”
So, given this climate of opinion, what should Christians want to see happen?
The Goal of a Christian View of Law in This Instance
While we should give thanks for a positive outcome in a particular dispute on parental rights, I believe that is not enough. I believe the end or telos of a Christian view of law would strive to restore in law parental rights as an authority delegated by God with a prescribed jurisdiction give for certain ends—”godly offspring” (Malachi 2:15). Such rights could be objectively debated and applied in legislation or in a courtroom.
However, restoration in a disintegrated cosmos is a challenge. It may take several generations for the Christian metaphysic and cosmology necessary for that understanding of parental right to percolate in and begin to dominate society’s thinking; however, that is no excuse for not starting now. And I don’t think our only option is to lose now in order to win later.
Below is an explanation of what I proposed and offered as an alternative for the parental rights legislation Tennessee enacted.
The Proposed Legislation: The Importance of Findings
Not every piece of legislation needs to include “findings” by the legislature, but I think they are very important on any subject touching on human sexuality that will be challenged in federal court.
The reason is simple: No legislator or attorney general should want the ACLU or a liberal federal judge supplying the rationale for that legislation and then constitutionally critiquing it. The quickest way to lose is to let your opponent frame the nature and purpose of the enacted legislation.
With respect to parental rights, I provided several findings in my proposal; however, for brevity’s sake, the following are the most important, and I’ll provide a reason for each as I go along.
The First Legislative Finding
It is incumbent on legislative bodies to declare what the common law is in relation to the fundamental nature of a parent-child relationship when the knowledge of it needs to be reinforced for the sake of securing the family’s preservation against governmental encroachment.
This finding makes it clear that there already is a law respecting parental rights—the legislature is just declaring what it is and not making up something new. And by referring to the common law, the legislation pulls a federal judge back to the jurisprudence (the conception of law) on which our nation was founded and is operative in every state but Louisiana.
The Second Legislative Finding
The common law recognizes that the rights of parents are reciprocal to and correspond to the duties owed to their child at common law.
This finding ties rights to duties so that rights are not abstract, and just a judge’s subjective opinion of what he or she thinks they should be. A duty must be found for a right to exist. Just as importantly, the right must be tied to a duty that was owed to a child at common law.
Defining the Duty and the Nature of a Right
At common law, a child, as with any person, had a right to the protection and preservation of “their life, limbs, body, health, and reputation.” The umbrella name for this collection of rights was the “right to personal security.” (Quotations from Blackstone’s Commentaries on the Laws of England, a source of authority on the common law regularly cited by the U.S. Supreme Court.)
This addresses the problem I noted last week. An Arkansas federal district judge used the same Supreme Court quotations used by Alliance Defending Freedom in parental rights cases to reach a conclusion it would not support. The Court held that the parent’s rights to make "mental health care decisions” for their child rendered unconstitutional the state’s statute prohibiting medical treatments for gender identity.
With this finding, the legislature is at least asserting that parents have a duty to protect their child’s body from injury and that to authorize the removal of otherwise healthy body parts is an injury. Thus, at least the legislature is effectively saying the government cannot give parents a right to breach this duty!
The Third Legislative Finding
This finding has two components:
The common law has historically recognized tortious interference in familial relationships.
Article I, Section 17 of the Tennessee Constitution declares “[t]hat all courts shall be open; and every man, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial, or delay. Suits may be brought against the State in such manner and in such courts as the Legislature may by law direct.
The first part addresses the fact that the law has allowed spouses to sue a person for what is called the “loss of contortion” when that person injuries their spouse. The law recognized an injury to the spousal relationship cause by physical injury to one spouse. Until abolished by the legislature, the law allowed a claim for “alienation of a affections,” allowing damages when someone seduced their spouse into an adulterous relationship.
These historical legal claims set up the operative provision in the legislation.
The Operative Provision in the Legislation
Unlike what Tennessee and other states have adopted, what I proposed does not provide a list of rights protected by high-sounding legal weasel words like “compelling interest,” highest order” and “substantially impair.”
Instead, the proposal begins by removing any limitation on the government’s pecuniary liability as permitted by the state constitutional provision in the finding. It then says:
a parent shall have a cause of action sounding in tort against the state, a political subdivision in this state, an LEA, a charter school, or any other governmental entity, or any private person or entity serving, operating, or functioning for or on behalf of or as an agent for those governmental entities for interference with the common law rights of parents in relation to and in pursuit of discharging the common law duties parents owe to their child as of the adoption of the Constitution of Tennessee. (emphasis supplied)
That’s a mouthful, but it allows parents to sue for damages to their right to fulfill their duties and recover their attorney’s fees, which could be large if they prevail in court. But notice that the nature and scope of those duties is tied to what the common law said of the parent-child relationship at the time the Tennessee Constitution was adopted in 1870!
This finding cuts off novel parental rights claims being made today that are detached from the biblical cosmology and the natural and divine law that informed common law in our state in 1870.
What I Think Is Most Important About the Proposal
To me, though, the most important feature of the legislation I proposed was that it shifted the nature of the conversation. More specifically, it would have required a shift in thinking by government authorities.
No longer would it just be a matter of semantical reasoning—what definition can the government convince a judge to give to this or that word in the statute, particularly as that word may now be understood in today’s climate of opinion.
Today, words are just placeholders awaiting new definition by the powers that be. This explains why a child is said by many to have two fathers and why a man can be said to have a husband.
But under what I proposed, government officials, when faced with a parent’s complaint, would have to do some historical digging and engage in some serious reflection. They would have to weigh whether pressing something against a parent wishes, particularly if novel and unknown at common law, is worth being sued for monetary damages and having to pay the parent’s attorney’s fees.
And, on the flip side, the ACLU might have to reconsider pressing for novel rights against laws it doesn’t like. Why? Because its lawyers cannot find a common law precedent prior to 1870 to support its claimed right.
For example, what common law precedent prior to 1870 would support parent’s authorizing a doctor to chop off their child’s healthy body part for what would have then been a sin issue?1 There isn’t one.
The Bottom Line
Semantics is not a legal game I would want to play when I have a U.S. Supreme Court that doesn’t even know what a man and woman are in regard to the nature of a marital relationship! Sadly, in this instance, I could not get any of the powers that be and the Christian organization behind the enacted law to see that confusion over the givenness of the marital relationship does not bode well for the givenness of an objectively determinable parental right
But I’ll keep pressing. I hope you will keep reading.
I don’t deny that gender dysphoria is a real thing. But unlike modern psychologists, I believe it is a logical consequence of believing we live in a disintegrated cosmos. Persons no longer know where they fit in the larger story that society presses on them. They have to change themselves to fit into the story or use law to change the story to fit them. The “story” rooted in the revelation of God in Christ Jesus provides an identity and a place in the story for everyone. That is sum of my testimony.
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