Amicus Curiae Brief — Troxel v. Granville

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Supreme Court, U. 9.

DEC [0 13) FILED

3 Ha 1 0 1999

No. 99-138

THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

In the Matter of the Visitation of NATALIE ANNE

TROXEL AND ISABELLE ROSE TROXEL. Minors.

JENIFER AND GARY TROXEL. Petitioners.

TOMMIE GRANVILLE, Respondent.

On Writ of Certiorari

to the Supreme Court of Washington

BRIEF AMICUS CURIAE OF THE

AMERICAN CENTER FOR LAW AND JUSTICE

SUPPORTING RESPONDENT

JAY ALAN SEKULOW VINCENT MCCARTHY

Counsel of Record THE AMERICAN CENTER FOR

LAW AND JUSTICE

COLBY MAY 8 S. Main, P.O. Box 1629

THE AMERICAN CENTER New Milford, CT 06776

FOR LAW AND JUSTICE

1000 Thomas Jefferson JOHN P. TUSKEY

St., N.W., Suite 520 LAURA B. HERNANDEZ

Washington, D.C. 20007 THE AMERICAN CENTER FOR

(202) 337-2273 LAW AND JUSTICE

1000 Regent University Dr.

Virginia Beach, VA 23464

(757) 226-2489

Attorneys for Amicus Curiae

QUESTIONS PRESENTED

Does Washington’s visitation statute, which permits

the state to intrude into the private child-rearing decisions of

fit parents who are raising children in an intact family,

violate the Due Process Clause’s guarantee of parental

autonomy?

Assuming as Petitioners claim, that this case raises a

facial challenge to Washington’s visitation statute, should

this Court employ the history and traditions analysis adopted

in other substantive Due Process cases to determine the

scope of parental rights?

TABLE OF CONTENTS

Page

CFU SINC PIRRIEIEG BID vc cccccccccccscccccesonesessovesccnesscsososenee i

FAS Ge A TEE CUEEED vremnenccsersensnesccenssssesvnnseesecsnsia ill

CSREES GIU GUIE AEE pritcecctesrccnsenstcensasensnsensinsscoeesiensetn l

DEA TEIC ES CE BBM CA ccnccccccesccccccvevessecescoseccsessecouse 2

SUMMARY OF ARQIUDEEING cccccccccccvscscsvessoscssesessossensconss 3

PATTIES ccovecsersensmonsevtnnsaiinanissinscmmnanpusatianbiensiiisetaeian +

I. PARENTAL RIGHTS ARE AT THEIR FULLEST AND

SHOULD BE MOST SHIELDED FROM STATE

INTERFERENCE WHERE, AS IN THIS CASE,

PARENTAL REPSPONSIBLITIES HAVE BEEN

CONSISTENTLY DISCHARGED AND THE CHILD

LIVES WITH A FIT UNITARY FAMILY.................. 4

A. The Contours of Parental Rights Must Be Defined In

the Light of the History and Traditions Which Gave

BOS OD TIONS TROD ccnccsencsscsisensnisiiibintiteniinmmeenan 6

B. This Nation’s History and Traditions Establish that

Parental Rights Are a Correlative of Parental Duties

That Arise in the Context of Unitary Families........ 9

I]. THE WASHINGTON SUPREME COURT PROPERLY

HELD THAT THE STATE MAY NOT ENFORCE A

THIRD PARTY VISITATION ORDER AGAINST AN

INTACT FAMILY THAT HAS DISCHARGED ITS

RESPONSIBILITY TO CARE FOR ITS CHILDREN. .

seocsneccusnneenseessounsnsstesesennisnncestnsiinentimenensmnns demand 14

ili

TABLE OF AUTHORITIES

CASES: Page(s)

Bowers v. Hardwick, 478 U.S. 186 (1986) ........0.0000cccccc. 6

Caban v. Mohammed, 441 U.S. 380 (1979)........00000000. 8.11

Church of the Lukumi Babalua Aye v. City of

Hialeah, 508 U.S. 520, 545 (1992) .......ccccccccccccceeeeseeeees 14

Collins v. Harker Heights, 503 U.S. 115, 125 (1992)......... 6

Lehr v. Robertson, 463 U.S. 248 (1983) .......00000000000. 5.8.11

MLB v. SLJ, 519 U.S. 102 (1996) ............cccccccsseesseeseeeees 5,12

Meyer v. Nebraska, 262 U.S. 390, 399 (1923)

ose enpeidetdeseteieainedneiiinbiieanseaenieenezenececcccesssasensneennes 3,5,7,10,12,13

Michael H. v. Gerald D., 491 U.S. 110 (1991)... 3,4,6,7,8,9

Moore v. City of East Cleveland, 431 U.S. 494, 503

EE 4.8.11

Pierce v. Society of Sisters, 268 U.S. 510, 533 (1925)

LS LT 3,5,7,10,12

Prince v. Commonwealth of Massachusetts, 321

eT 12

Quilloin v. Walcott, 434 U.S. 246 (1978) -.........cccc000. 5,8,11

Santosky v. Kramer, 455 U.S. 745 (1982).........cccccccccccceeeees 5

Skinner v. Oklahoma, 316 U.S. 535 (1942) ......ccccccccccceeeee 10

TABLE OF AUTHORITIES Cont'd.

CCAREBIBS ceccssssssessesscesssssssensessssssanseesnsnssssensensssssssss Page(s)

Stanley v. Illinois, 405 U.S. 645 (1972) .........ccccececeeeeeees 8.11

United States v. Salerno, 48; J.S. 739, 745 (1987) ........... 6

Washington v. Glucksberg, 521 U.S. 702, 719 (1997)

sapemesevervnnessesnensistesisnnentaiatisttsinpneinistiitanssiiitiaseatatdiaitaiineamiaumeiia 3,6,7,8

Widmar v. Vincent, 454 U.S. 263, 276 (1981) .................. 14

Wisconsin v. Yoder, 406 U.S. 205, 232 (1972).............. 5,12

STATUTES:

Wash.Rev. Code § 26.10.160...........0ccccccccscocssesseees 6,9,14,15

OTHER SOURCES:

Joan C. Bohl, The “Unprecedented Intrusion”: A

Survey and Analysis of Selected Grandparent

Visitation Cases, 49 Okla. L. Rev. 29, 35 (1996).. 9,10,12

No. 99-138

IN THE

SUPREME COURT OF THE UNITED STATES

In the Matter of the Visitation of NATALIE ANNE

TROXEL AND ISABELLE ROSE TROXEL, Minors,

JENIFER AND GARY TROXEL, Petitioners,

Vv.

TOMMIE GRANVILLE, Respondent.

On Writ of Certiorari

to the Supreme Court of Washington

BRIEF AMICUS CURIAE OF THE

AMERICAN CENTER FOR LAW AND JUSTICE

SUPPORTING RESPONDENT

INTEREST OF AMICUS’

The American Center for Law and Justice (ACLJ) is

a nonprofit, public interest law firm and educational

organization dedicated to protecting First Amendment

freedoms, human life, and the family. ACLJ attorneys have

argued or participated as amicus curiae in numerous cases

involving constitutional issues before the United States

Supreme Court and lower federal courts, and Chief Counsel

Jay Sekulow has presented oral argument before this Court

in the following cases: Schenck v. Pro-Choice Network of

* Counsel of record for the parties in this case have consented to

the filing of this brief. Pursuant to Supreme Court Rule 37.6, the ACLJ

discloses that no counsel for any party authored in whole or in part this

brief and that no monetary contribution to the preparation of this brief

was received from any person or entity other than amicus curiae.

Western New York, 519 U.S. 855 (1997); Lamb's Chapel v.

Center Moriches Union Free School Board, 508 U.S. 384

(1993); Bray v. Alexandria Women's Health Clinic, 506

U.S. 263 (1993); Board of Education of Westside Community

Schools v. Mergens, 496 U.S. 224 (1990); United States v.

Kokinda, 497 U.S. 720 (1990); and Board of Airport

Commissioners v. Jews for Jesus, 482 U.S. 569 (1987).

Also, the ACLJ presently has pending before this Court two

cases to be argued this term: Hill v. Colorado, No. 98-1856,

and Santa Fe Independent School District v. Doe, No. 99-62

As an organization dedicated to protecting the family,

the ACLJ is generally opposed to government intervention in

the parent-child relationship absent a showing of parental

unfitness. Petitioners have invited the Court to address the

parameters of parental rights under the Due Process Clause

of the Fourteenth Amendment, and any Court

pronouncements on the scope of parental rights will have

significant ramifications on the parent-child relationship.

The ACLJ urges the Court to employ the history and

traditions analysis appropriate in substantive due process

cases under Washington v. Glucksberg, if the Court

determines that this case requires it to clarify the scope of

parental rights. In addition, the ACLJ argues that the lower

court properly held that Washington Revised Code §

26.10.160, which grants the state expansive authority to

intrude into the private child-rearing decisions of fit parents,

violates the Due Process Clause of the Fourteenth

Amendment.

STATEMENT OF THE CASE

The ACLJ adopts the statement of the case set forth in

Respondent’s brief.

——— A. et

SUMMARY OF THE ARGUMENT

Parental rights have a pedigree unmatched in

constitutional law. As one of the only pre-constitutional

rights recognized by this Court under the Due Process

Clause of the Fourteenth Amendment, parental rights have

been deemed one of the most sacred liberties in our nation.

When this Court first acknowledged parental rights in 1923,

society and its traditions were relatively homogenous with

respect to the proper means of creating and raising children.

There was little if any need to define the scope of parental

rights. Since Meyer and Pierce, society has changed

dramatically, of course, and several cases have come before

this Court raising issues concerning the scope of parental

rights in circumstances as common now as they were

uncommon at the time of Meyer and Pierce. See, e.g.,

Michael H. v. Gerald D., 491 U.S. 110 (1991).

In this case, the Court has been invited to define the

perimeters of parental rights in a manner which reflects the

current condition of the family in America. If the Court

accepts that invitation, the proper analytical framework for

considering the scope of parental rights is the history and

traditions analysis employed in this Court’s substantive due

process jurisprudence. Specifically, the contours of parental

rights should be set by first describing the interest at stake

with particularity, and then by examining the history and

traditions giving rise to that interest. See Washington v.

Glucksberg, 521 U.S. 702, 719 (1997). When carefully

described in the light of history and tradition, parental rights

are properly viewed as rights correlative of duties borne out

of the reciprocal relationships in intact families. The right to

raise one’s children historically has been seen as the broader

right to family integrity, because parental rights are relational

rights originating in the family, not in the individual parent.

This Court’s cases consistently have extolled the family as

the foundational unit of society and therefore the

fountainhead of parental rights. See, e.g, Michael H. v.

Gerald D., 491 U.S. 110 (1991); Moore v. City of East

Cleveland, 431 U.S. 494, 503 (1977).

When the scope of parental rights are correctly

delineated in light of their historical backdrop, the

unconstitutionality of Washington’s visitation statute is

manifest. The statute confers an unprecedented degree of

power on the state to intrude itself into the private child-

rearing decisions of intact families. Requiring only a finding

that “the best interests of the child” are furthered,

Washington's visitation statute empowers state courts to

substitute their judgments for that of fit parents about who

can maintain relationships with, and therefore influence the

morals and values of, the parents’ children.

Parental rights historically have only been subject to

state intrusion when parents are harming or threatening harm

to their children. The requirement of harm is the only

safeguard that parents have against the sort of pervasive state

interference in parenting decisions authorized by

Washington’s visitation statute. In the absence of harm to

the child, the state has no authority to intrude into the

parenting process. The lower court properly held

Washington’s visitation statute unconstitutional.

ARGUMENT

I. Parental Rights Are At Their Fullest And Should

Be Most Shielded From State Interference

Where, As In This Case, Parental Responsibilities

Have Been Consistently Discharged and The

Child Lives With A Fit Unitary Family.

Parental rights are most unassailable when parents

fulfill their duty to raise their children in a stable home. The

history and culture of American, and indeed much of

western, civilization has extolled the primary role of parents

in raising children. Wisconsin v. Yoder, 406 U.S. 205, 232

(1972). Rooted in history and tradition as they are, parental

rights are protected under the Fourteenth Amendment’s Due

Process Clause. See Meyer v. Nebraska, 262 U.S. 390, 399

(1923); Pierce v. Society of Sisters, 268 U.S. 510, 533

(1925). A parent’s right to the care and companionship of

his child is so cherished that the right may not be terminated

in the absence of stringent procedural safeguards. See, e.g.,

Santosky v. Kramer, 455 U.S. 745 (1982) (due process

requires that parental rights may not be terminated unless

state shows at least clear and convincing evidence that

parents are unfit); MLB v. SL/, 519 U.S. 102 (1996) (parental

rights are of such basic importance that due process is

violated when mother lost opportunity to appeal order

terminating her parental rights because she could not pay

appeal costs).

This Court’s decisions in Meyer and Pierce,

recognizing the Due Process Clause’s protection of parental

rights, were decided at a time in this nation’s history when

the vast majority of children were born into a traditional

family created by marriage between a man and woman.

There was, comparatively speaking, a fair degree of moral

consensus about how children should be brought into the

world and how they should be raised. Defining the scope of

parental rights undoubtedly would have seemed unnecessary

in a nation bereft of rampant illegitimacy, varied

reproductive technologies, and numerous alternative

lifestyles.

In modern times, however, this Court’s decisions

have recognized that the Due Process Clause does not confer

unqualified parental rights on every person who bears or

sires a child. For example, in both Quilloin v. Walcott, 434

U.S. 246 (1978) and Lehr v. Robertson, 463 U.S. 248 (1983),

the Court declined to hold that unwed fathers had full

parental rights where the fathers never shouldered any

significant responsibility for the child’s well-being. In

Michael H. v. Gerald D., 491 U.S. 110 (1991), the Court

held that a single man who fathered a child in an adulterous

affair did not have full parental rights with respect to that

child. 491 U.S. at 123-25.

Petitioners assert that this case raises questions

similar to that raised in Michael H., concerning the scope of

parental rights under the Due Process Clause, because this

case involves a facial challenge to § 26.10.160(3).

According to Petitioners,’ the issue before this Court is

whether there is any set of circumstances under which the

statute would be constitutional. See United States v. Salerno,

481 U.S. 739, 745 (1987). Assuming this case raises a facial

challenge to § 26.10.160(3) and therefore raises questions

about the perimeters of parental rights, the appropriate

method of determining those perimeters is the history and

traditions analysis employed in this Court’s cases addressing

substantive due process rights. See, e.g, Washington v.

Glucksberg, 521 U.S. 702, 719 (1997); Bowers v. Hardwick,

478 U.S. 186 (1986); Collins v. Harker Heights, 503 U.S.

115, 125 (1992) (The nation’s history, legal traditions, and

practices provide the “crucial guideposts for responsible

decisionmaking”).

A. The Contours of Parental Rights Must Be

Defined In the Light of the History and

Traditions Which Gave Rise to Those

Rights.

As a substantive due process right, the scope of a

parent’s right to raise his child must be delineated in the light

of the history and tradition which gave rise to the right. See

Washington v. Glucksberg, 521 U.S. 702, 719 (1997).

' See Troxel Br. At 19. Nothing in the lower court’s opinion

indicates that respondent pursued a facial challenge to Wash. Rev. Code

§ 26.10.160(3).

Substantive due process analysis has two components. First,

a thorough review of the nation’s history and tradition is

required to determine whether the asserted right is “so rooted

in the traditions and conscience of our people as to be ranked

fundamental.” Jd. at 719. Second, there must be a “careful

description of the asserted fundamental liberty interest.” /d.

(Court held that the right asserted was properly described as

the “right to commit suicide,” not the more general and

vague “right to choose a humane, dignified death”).

As Meyer and Pierce held, the general concept of

parental rights is firmly rooted in the tradition and history of

this nation. 262 U.S. at 399; 268 U.S. at 533. What Meyer

and Pierce did not discuss, quite understandably given

American society at that time, was the second prong of

substantive due process analysis, how the asserted interest

should be described in various contexts. In Michael H. v.

Gerald D., 491 U.S. 110 (1991), a plurality of the Court

addressed, for the first time, the question whether the scope

of parental rights depends on the circumstances surrounding

the parenthood. There, a single man, Michael, fathered a

child through an adulterous affair. The child was born into

an intact family, and her legal father, Gerald, acknowledged

her as his own. Nevertheless, over much of the child’s early

years, Michael maintained a fatherly relationship with her

and held her out as his own, even while Gerald did the same.

A blood test established that the child was Michael’s. 491

U.S. at 113-114. When the child’s mother and Gerald

wanted to stop all further contact between the child and

Michael, Michael argued that his parental rights under the

Due Process Clause were infringed by California’s

evidentiary rule barring Michael from challenging the child’s

legitimacy. Jd. at 116.

Presaging Glucksberg, the plurality’s analysis

incorporated a careful and very specific description of

Michael’s asserted liberty interest. Rejecting a general

characterization of Michael’s claim as a parental rights

claim, the plurality confined its inquiry to the nation’s

historical traditions regarding the rights of an “adulterous

natural father.” /d. at 127 n.6.

Michael had argued that the Court’s cases conferred

parental rights on parents whenever there was biological

parenthood plus an established relationship. /d. at 123 (citing

Stanley v. Illinois, 405 U.S. 645 (1972); Quilloin v. Walcott,

434 U.S. 246 (1978); Caban v. Mohammed, 441 U.S. 380

(1979); Lehr v. Robertson, 463 U.S. 248 (1983)). The

plurality rejected this characterization of the Court’s cases,

holding instead that its decisions rested “upon the historic

respect—indeed, sanctity would not be too strong a term—

traditionally accorded to relationships that develop within the

unitary family.” /d. at 123. The plurality cited Stanley as an

example of the Court’s solicitude for family integrity

because the Court struck down a state’s attempt to remove a

deceased mother’s children from the custody of their father

who had lived with and supported the children for 18 years.

Id.; see also Moore v. City of East Cleveland, 431 U.S. 494,

503 (1977) (plurality) (“Our decisions establish that the

Constitution protects the sanctity of the family precisely

because the institution of the family is firmly rooted in this

Nation’s history and tradition.”).

The plurality also noted that throughout the nation’s

history, states had protected intact families against the sort of

claim Michael asserted.

What counts is whether the States in fact

award substantive parental rights to the

natural father of a child conceived within, and

born into, an extant marital union that wishes

to embrace the child. We are not aware of a

single case, old or new, that has done so. This

is not the stuff of which fundamental rights

qualifying as liberty interests are made.”

Id. at 125.

Section 26.0.160(3) is a very broadly worded statute

which confers the right on “any person,” “at any time,” to

seek visitation with a child, regardless of the child’s familial

status. Section 26.0.160(3) is unconstitutional as applied to

Tommie Wynn. Resolving a facial challenge to the statute,

however, requires this Court to determine whether there are

any circumstances in which the statute could be

constitutional, which may in turn require an analysis of the

scope of parental rights. As in Michael H., such an analysis

necessitates a review of the history and traditions from which

parental rights arose.

B. This Nation’s History and Traditions

Establish that Parental Rights Are a

Correlative of Parental Duties That Arise

in the Context of Unitary Families.

Parental rights existed at early common law only in

the context of the traditional family, consisting of married

parents and their children. See Joan C. Bohl, The

“Unprecedented Intrusion”: A Survey and Analysis of

Selected Grandparent Visitation Cases, 49 Okla. L. Rev. 29,

35 (1996). Blackstone’s Commentaries reflect the view that

reciprocal duties and privileges between parents and children

are an inherent part of family life. The relationship between

husband and wife, and between parent and child is “founded

in nature.” Moreover, the relationship between parent and

child is inextricably linked to the union of the husband and

wife by virtue of being “consequential to marriage ... and its

principle end and design.” 49 Okla. L. Rev. at 37 (quoting 1

William Blackstone, Commentaries 410). As Professor Bohl

observes,

for Blackstone, as for other common law

authorities, a comprehensive set of mutual

obligations and benefits running between

parents and children lie within the realm of

family life. Parents must first maintain their

children, a duty imposed ‘not only by nature

herself but by the parents’ own ‘proper act’

in bringing children into the world.

Blackstone notes that although the “laws of

all well regulated states” enforce this

obligation, the natural and insuperable degree

of affection which providence awakens in the

“breast of every parent” accomplishes this

end more effectively than any law. Parents

must also protect their children, a natural

duty. Parents’ final and most important duty

is to give children “an education suitable to

their station in life.”

Id. at 37 (citing Blackstone’s Commentaries).

The early common law view that parental rights are

correlative of parental duties, as well as the right to marry, is

reflected in a number of this Court’s early decisions. In

Meyer, for example, the Court coupled the right to marry

with the mght to bring up children. 262 U.S. at 399.

Similarly, in Skinner v. Oklahoma, 316 U.S. 535 (1942), this

Court found the right to bear children to be inextricably

linked with the right to marry. “Marriage and procreation

are fundamental to the very existence and survival of the

race.” 316 U.S. at 541. In Pierce, this Court tied parental

rights to parental responsibilities. Only those who “nurture

{the child] and direct his destiny have the right, coupled with

the high duty, to recognize and prepare him for additional

obligations.” 268 U.S. at 535 (emphasis added).

That parental rights are inextricably linked with

parental duties and, to a lesser degree, an intact familial unit

is also implicit in this Court’s later decisions involving

parental rights. In assessing the strength of family and

parental rights, the Court has stressed the importance of

. erage

relationship and mutual responsibility among family

members.

The Court has frequently emphasized the

importance of the family. The rights to

conceive and to raise one’s children have

been deemed “essential,” “basic civil rights of

man.”... It is cardinal with us that the custody,

care, and nurture of the child reside first in the

parents, whose primary function and freedom

include preparation for obligations the state

can neither supply nor hinder. The integrity

of the family unit has found protection in the

Due Process Clause of the Fourteenth

Amendment, the Equal Protection Clause of

the Fourteenth Amendment, and the Ninth

Amendment.

Stanley v. Illinois, 405 U.S. 645, 651 (1972) (father who

cared for and supported his children, as well as their mother,

had parental rights) (emphasis added) (citations omitted).

See also Quilloin v. Walcott, 434 U.S. 246 (1978); Lehr v.

Robertson, 463 U.S. 248 (1983) (unwed fathers who

shouldered no parental responsibilities had no parental

rights); Caban v. Mohammed, 441 U.S. 380 (1979) (same);

Moore v. City of East Cleveland, 431 U.S. 494, 503

(1977)(right to familial integrity may not be infringed by

zoning ordinance barring grandmother from living with

grandsons, whom she cared for and raised).

Finally, this Court’s rejection of Michael H.’s

parental rights claim properly tied parental mghts with

correlative parental duties, including the most fundamental

duty of all, which is to bring a child into the world under

circumstances which best enable a parent to fulfill his other

responsibilities toward that child. Viewed in totality, this

Court’s cases are consistent with the common law view that

parental rights are relational rights, based on reciprocal

duties, not on the individual interests of a parent. See Bohl,

supra, 49 Okla. L. Rev. at 44.

In similar vein, the state historically has had no

power to intrude into the relational rights between parent and

child unless the parents harmed or threatened harm to the

child. Neither the state’s parens patriae power nor its police

power may be exercised absent a determination that parental

decisions will or may harm the child. This Court’s decisions

in Yoder, Meyer, Pierce, and Prince all reflect the historical

view that only threatened harm to the child justifies state

interference in the parent-child relationship. In Yoder, for

example, this Court’s decision was predicated on the

determination that Amish children would not be harmed by

receiving an Amish education, rather than a_ public

education. 406 U.S. at 230 (state may intervene only “if it

appears that parental decisions will jeopardize the health or

safety of the child, or have the potential for significant social

burdens”) (emphasis added). Likewise, in Pierce, the Court

held that the parents’ decisions to send their children to

parochial schools were not harmful to the children. 268 U.S.

at 534; see also Meyer, 262 U.S. at 402-03 (“proficiency in a

foreign language ... is not injurious to the health, morals, or

understanding of the ordinary child”); Prince v.

Commonwealth of Massachusetts, 321 U.S. 158, 170 (1944)

(mother’s conviction under state child labor law was

necessary to protect the child from harm). Of course, the

state’s power to terminate parental rights altogether hinges

on a proceeding encased in substantial procedural protections

to determine whether the parents have inflicted substantial

harm on the child. See, e.g., MLB v. SLJ, 519 U.S. 102

(1996).

Petitioners argue that Meyer, Pierce, and Yoder are

distinguishable because the infringement on parental rights

in those cases was great, involving intrusions on the parents’

right to control the religious upbringing and the education of

their children. By contrast, petitioners claim that

Washington's visitation statute authorizes only a little

intrusion because requiring visitation with third parties does

not implicate the parents’ prerogative to control the religious

upbringing or the education of their children. Troxel Br. at

24-25. Petitioners’ argument reveals a cramped and highly

compartmentalized view of child-rearing. As any parent will

attest, inculcating values, religious or not, and educating

children necessarily require parents to exercise control over

their children’s associations. It is specious, if not

disingenuous, to contend that forcing parents to maintain

relationships between their children and third parties has no

impact on “core” parental rights.

The requirement of harm is constitutionally essential

to protect against state intrusion into the child-rearing

decisions of fit parents in intact families. For the state to

respect parental rights only as long as the state approves

parental decisions is to emasculate parental rights. Because

no finding of harm to the child is required, Washington’s

visitation statute allows state courts to second-guess parental

determinations concerning the relationships children will

maintain. The state thereby usurps the child’s family’s

prerogative to influence the child’s character and values by

controlling the child’s associations. Washington’s visitation

statute reflects a view of parental rights closer to Plato’s

ideal of children being raised by the state than to the historic

sanctity accorded to the family in this Court’s decisions. See

Meyer, 262 U.S. at 390 (Platonic ideal of children raised by

state does “violence to both the letter and spirit of the

Constitution’ ).

Il. The Washington Supreme Court Properly Held

that the State May Not Enforce a Third Party

Visitation Order Against An Intact Family That

Has Discharged Its Responsibility to Care for Its

Children.

The lower court properly held that § 26.10.160(3) is

unconstitutional as applied to Tommie Wynn. However

unstable the Troxel childrens’ beginning may have been, Ms.

Wynn did not abdicate her responsibility for their care to

another. The children now reside in an intact family with

their mother and adoptive father. Consequently, there should

be no diminution of Ms. Wynn's parental rights.

While the “best interests of the child” standard may

be proper in some divorce-custody cases where state

intervention is necessary because the parents can no longer

agree to raise the children together in a stable family home, it

is unconstitutional here. The lower court properly held that

any state intrusion into Ms. Wynn’s parental rights must be

justified by a compelling state interest. Allowing state

intrusion into the Wynn's private decisions about whom their

children may visit because the state believes it would be in

the children’s “best interest” does not rise to the level of a

compelling state interest. This Court has emphasized the

rigor of strict scrutiny: “First Amendment rights are entitled

to special constitutional solicitude,” and the Supreme Court

has “required the most exacting scrutiny” in cases where

state action burdens a fundamental right. Widmar v. Vincent,

454 U.S. 263, 276 (1981). Strict scrutiny is not “watered ...

down but really means what it says.” Church of the Lukumi

Babalu Aye v. City of Hialeah, 508 U.S. 520, 545 (1992)

(quotations omitted).

Thus, under strict scrutiny, only clear evidence of a

threat of harm to the Troxel children could justify an award

of visitation rights to the Troxels in this case. There has

been no such showing in this case. The lower court correctly

- ——— <i — Aa

held that § 26.10.160(3) is unconstitutional when applied to

fit intact families, such as Ms. Wynn’s.

CONCLUSION

Washington Rev. Code § 26.10.160(3) is an

unprecedented expansion of state power to intrude into the

child-rearing decisions of fit intact families. The lower

court’s decision holding the statute unconstitutional should

be affirmed.

Respectfully submitted,

JaY ALAN SEKULOW VINCENT MCCARTHY