A proposed constitutional amendment adding “the liberty of a parent to direct the upbringing of the parent’s child” as a fundamental right protected by the Texas Constitution’s Bill of Rights (Art. I) has been introduced by four different lawmakers. HJR 38, HJR 58, and HJR 85 would constitute a new “right” to “direct the care, custody, control, education, moral and religious training, and medical care of the child.” (A separate proposal, SJR 29, would create only the right to direct the education of the child.) HJR 58 and HJR 85 explicitly restrict state and local government “interference” with the exercise of this right, requiring such interference to be “essential to further a compelling governmental interest” and “narrowly tailored to accomplish that compelling governmental interest.” The U.S. Supreme Court has recognized constitutional protection for a parent’s rights to the care, custody, and control of their children under the Due Process clause of the 14th Amendment. This protection has led the Court to strike down a state law mandating that children attend public schools, a law depriving an unmarried father of custody on the death of the mother without a showing of unfitness, and a statute allowing a judge to award more visitation to grandparents over the objection of the parents. But by establishing strict scrutiny as the standard of review, as HJR 58 and HJR 85 do, the proposals go further than SCOTUS has gone so far and raise a question about the validity of the “best interest of the child” test that generally prevails when parental and children’s rights collide.

If voters eventually adopt this or a similar proposal, how might it affect the civil justice system? At first blush, it may seem innocuous to put something like this into the constitution. But in terms of potential liability exposure, it is anything but. Here are some of the proposal’s problematic aspects:

  • It could expose any statute or local ordinance or rule that affects the parent-child relationship to constitutional attack. This consequence is most obvious in the public school system, which relies on generally applicable and uniform curriculum standards, student assessment policies, disciplinary procedures, student vaccination and other health care requirements, and much else besides. Certainly public health measures designed to keep children out of hospital emergency rooms would be challenged. The proposal could also constrain or complicate law enforcement activities, as conferring the fundamental right “to control” the child raises the question “to what extent”? How much physical or emotional abuse or violence, purportedly meted out to “control” or discipline a child, can occur before a “compelling governmental interest” permits intervention? This will have to be litigated, probably on a case-by-case basis since law enforcement depends so heavily on very difficult judgment calls to begin with. This process will take decades and cost a ton of money. And while it plays out, no one will know for sure what the rules are. This uncertainty could well paralyze government action to protect the health and safety of the most vulnerable of all Texans.

  • Marriage and divorce rates in Texas are falling. In 1990 the marriage rate topped 10.5 per 1,000, but thirty years later the figure is half that. Similarly, in 1990 the divorce rate was 5.5 per 1,000, but dropped to 1.5 in 2020. These are aggregate numbers that conceal the fact that almost half of people married before age 18 separate within 10 years. That number jumps to 60% for people who marry age 20-25. Marriage after 25 is the best predictor for marital stability in the long-term. A little more than one-third of Texas children live either in single-parent households or households in which the unmarried parents cohabitate (that number has exploded in recent years, reaching nearly 25% in 2017). Why are these statistics important in the present context?

Clearly, “parents” come in all shapes and sizes and possess all manner of relations of consanguinity or affinity with their children. If we define “parent” according to its ordinary meaning, which includes both biological offspring and individuals for whom one “cares” and “brings up,” the proposed amendment would extend a fundamental right to millions of caregivers of approximately 7.3 million Texas children. Presumably, the contours of the “right” will be the same in each individual case, but the methods and practices each “parent” uses to exercise that right will not be. We also have to account for the significant number of children who live in poverty and unstable home environments, where timely government intervention may be more critical to the life of the child. Who will mediate the conflicts that will inevitably arise between potentially millions of “parents” with their own ideas of what it means to “direct the care, custody, control, education, moral and religious training, and medical care of the child”? Will vindicating the “fundamental right to parent” become an issue in every family law dispute involving children? Will judges have to decide who is a “constitutionally protected” parent and who isn’t? Will individuals from outside the household assert their constitutional protections against those within? As difficult as the challenges to the judiciary in today’s family and juvenile law arenas, creating a constitutional cause of action could make the difficulty infinitely worse.

  • Governmental entities and courts are the not the only ones that could see the effects of constitutionalizing parenthood. It is conceivable, for example, that employers could be on the hook for employment decisions or policies that “interfere” with or discriminate against an employee’s right to parent. Generally speaking, of course, the bill of rights can only be enforced against governmental actors, but federal and state anti-discrimination laws aim in part to extend some constitutional enforcement to the workplace. If an employer is barred from and liable for discriminating against an employee based on pregnancy, could the employer likewise be liable for actions that have disparate effects on employees with children and those without, such as the absence of family leave policies? Or suppose a parent takes the position that the parent can only exercise its fundamental right to direct a child’s education if a child is admitted to a particular school or school program or activity? That may sound far-fetched, but if a case that questions a private university’s right to admit whomever it wants for whatever reasons it wants can end up at the U.S. Supreme Court, it’s not hard to imagine a similar case ending up at SCOTX. In any event, the limits of a new fundamental right can only be determined one way: by litigation.

Perhaps we’re just seeing things that aren’t there, but if these types of questions occur to us, they’re bound to occur to just about everybody else, too. It might also be worth asking that if we’re going to enshrine parental rights in the constitution, shouldn’t we also do it for children’s rights? It seems at minimum that children should have similarly protected rights to health care, personal and economic security, and an education that prepares them life as it is lived in the world. Unquestionably, if the term “culture of life” means anything, it has to be inclusive not only of parental independence and autonomy but of things that are essential and necessary to protect and nurture children as well.

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