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This bill specifies that parental liberty regarding the upbringing, education, and care of children is a fundamental right which cannot be infringed on without demonstrating a governmental interest of the highest order.
02/07/2013 (House) Introduced
02/14/2013 (House) Referred Children, Families, and Persons with Disabilities Committee
02/19/2013 (House) Hearing in Children, Families, and Persons with Disabilities Committee
03/05/2013 (House) Committee voted Do Pass
This bill failed to pass before the session ended, and is now dead.
Your right to raise your children according to your best judgment is under attack from many directions. To protect your rights as a parent and pass them on to your children, it’s important to put them in black and white. Right now, parental rights are not protected by statute, and courts can undermine them at will. That's not adequate. HB 513 solves that problem.
The right of a parent to raise his child according to his best judgment was unquestioned in America until 2000. In that year the U.S. Supreme Court for the first time refused to treat the rights of parents as on par with our other most precious rights. The court refused to say that parents’ rights are fundamental.
Since that time, 24 courts around the country have moved toward downgrading parental rights—largely because state legislatures have failed to do their job of protecting the rights of parent citizens with clear legislation.
The time for silence is over. The Missouri Legislature needs to say loud and clear that parental rights are worth protecting and not leave it up to the whim of judges.
There are three types of rights: ordinary, fundamental, and absolute. If a right is “absolute,” the government can do absolutely nothing to restrict it—like the right to choose a faith. The rights of parents have never been considered absolute. The battle today is over whether your rights as a parent are “ordinary” or “fundamental.”
If a right is “ordinary” (e.g., the right to run a business, or drive a car, or get government assistance, or practice a trade or profession), any government agency can put restrictions on it as long as the restriction is arguably “rational.” Since it’s laughably easy to prove a government restriction is “rational,” courts almost always uphold restrictions that government agencies place on the ordinary rights of people. The government wins. The person with the right loses.
But if a right is fundamental (like the right to move within a state, or to a different state, procreation, or schooling other than public) a government agency can restrict it only if it has a super good reason. Sometimes this is referred to as a “compelling” reason, or a reason “of the highest order.” To protect parenting as we and generations of Americans have known it, it’s crucial that parental rights continue to be treated as “fundamental.”
That’s what HB 513 does. It doesn’t give you any new rights. It just provides much better protection for the ones you already have.
There is a loose-knit group of folks who want the government to put more and more restrictions on parents. Some of these folks will argue that HB 513 will let parents abuse their kids. This is false. The bill gives you no new rights. You don't have a right to abuse your kids now; you won’t after it becomes law.
Or they may argue that it will destroy the “best interest” rule. The starting point on this issue is that parents are presumed to act in the best interests of their children (per the U.S. Supreme Court). But when judges have authority to make rulings about children, they must do what is in the best interests of the child. HB 513 won’t change that. In fact, the “best interest” concept was created when it was universally acknowledged that parents’ rights were fundamental. There is no inconsistency between the “best interests” rule and parental rights being fundamental.
Furthermore, the idea of parental rights being fundamental is not experimental. We have over a century of experience of knowing what it means for your rights to be fundamental. And during that century, laws prohibiting abuse and neglect functioned as intended even with parental rights being fundamental. There is simply no rational reason to think that would change with HB 513.
HB 513 does not change the definition of “parent.” It does not define it at all. The legislature can define “parent” as may be necessary when the case arises.
HB 513 will not upset current custody or adoption orders. Even when parental rights are fundamental, courts still have power to enter custody orders when custody of a child is in dispute. And courts still have power to terminate the rights of parents (like for adoption), if it is done according to law. HB 513 will not change that.
HB 513 will not let parents dictate curriculum to public schools. Even when parental rights are fundamental, schools still have nearly unfettered discretion in deciding what to teach. In Fields v. Palmdale School District, a federal court of appeals held that parents’ fundamental rights “… do not entitle individual parents to enjoin school boards from providing information the boards determine to be appropriate” to students.
Some will argue that we should just let “common law” keep on developing as it has. The flaw in that argument is that it ignores the fact that the reason governments exist in the first place is to protect our rights (read the Declaration of Independence). It’s only when the legislature abdicates its duty to protect our rights that the job by default falls back into the lap of the courts. Yes, if the legislature is silent, the courts will fill the void with their own opinions. But that is the least democratic way to address the issue of rights.
| Other Resources|
February 27, 2013 E-lert: Please Call to Protect Your Right to be a Parent
March 8, 2013 E-lert: Update: Committee Win for Parental Rights Bill