Michael Farris:
The term fundamental right has become very important in constitutional litigation because of the Supreme Court’s self-created standards placing our rights into two basic categories: fundamental and non-fundamental.

If your right is labeled as a fundamental right, the legal deck is stacked heavily in your favor. The government must bear the burden of proof. The government cannot interfere with your right unless they prove that their interest in so doing is of the highest order and cannot be achieved by any other means.

If, however, your right is labeled as non-fundamental, the legal deck is stacked heavily in favor of the government. You, the citizen, must bear the burden of proof. You must show that the government’s infringement of your non-fundamental right lacks any rational or plausible connection to a legitimate policy of the government. This is a standard that is very difficult for any citizen to meet unless the government program is simply outlandish or stupid in the opinion of the court.

So what about parental rights? Is the right of parents to direct the upbringing and education of their children a fundamental or a non-fundamental right?

Under current legal interpretation, parental rights are generally, but not always, viewed as fundamental, but this interpretation is by no means a strong safeguard for homeschoolers. Tomorrow, we’ll examine in more detail how the federal judiciary views parental rights. I’m Mike Farris.