January 17, 2000
The U.S. Supreme Court heard arguments last Wednesday in a case that should not have become a court case. The Court has the case, however, because the State of Washington enacted a law that should never have become a law.
The state law stipulated that any person at any time could appeal to a court to grant him or her the right to visit a minor even over the objection of the parents. A judge could grant such visitation rights even if there were no question about the child's well-being and even if there were no custody battle between the child's parents. The court, in other words, should have the final responsibility to decide what is best for the child.
On the basis of that law, Jenifer and Gary Troxel asked a state judge to grant them the right to see their grandchildren on terms that the children's mother did not approve. The grandparents wanted the children to stay overnight with them instead of visiting only in the afternoons. The only apparent complication in this instance is that the children's father—the Troxel's son—had committed suicide and their mother had remarried. She did not want her children to stay overnight with their grandparents, but the judge to whom the grandparents appealed ruled against the mother. The mother then challenged the judgment in a state court, which ruled the law unconstitutional under federal law because it violates the mother's right to liberty and privacy guaranteed by the Fifth and Fourteenth Amendments. The grandparents have appealed the case to the U.S. Supreme Court.
At least two things are sadly wrong about this case. The first is that a state would even pass a law giving a judge or court the right to trump parents in deciding who their children should visit and when. The second tragedy is that in order to challenge the law the state court had to appeal to federal constitutional provisions which essentially protect only the freedom and privacy of individual citizens. Apparently, the institutional identity of the family can be ignored by a legislature or can be "protected" only indirectly by legal appeal for individual rights protection.
Do not mistake my dismay as an indication of a cold heart toward grandparents. Much can be said in favor of extended families. If we as a society are prepared to discuss the value of ancient Israel's clan structure, for example, in which many members of an extended family bore responsibility for one another, I am eager to join in. The controversy today, however, is between the common law tradition that takes for granted the responsibility of parents for their children and an approach that turns to government or the courts for rulings on every conceivable dispute. Parents, we should insist, bear responsibility for their children as a grant from God, not by permission of legislators or judges. Just as the Constitution recognizes certain individual rights independent of government's authority, so governments should be constituted on the basis of recognizing the prior identity and authority of certain nongovernment institutions. If states may now freely pass laws that willfully obliterate that common law tradition, and if all that's left to protect parents is a bill of rights for individuals, then the people of the United States have indeed become nothing more than a collection of individuals. Every argument between parents and children, between students and teachers, between employer and employee, will have to be fought out in legislatures or the courts.
This is a crisis that our political candidates ought to be addressing. Debates about reinventing government and lowering taxes are sideshows of little consequence if the identity and responsibility of nongovernment institutions like the family are not secure under law from the start.
—James W. Skillen, Executive Director
Center for Public Justice