Amicus Curiae Brief — Troxel v. Granville

[> 147") Supreme Court

DEC No. 99-138 MEE a

IN THE

Supreme Court of the Hts GLERK

OCTOBER TERM, 1999

>

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 CIVIL

LIBERTIES UNION AND THE ACLU OF WASHINGTON

IN SUPPORT OF RESPONDENT

Matthew A. Coles

(Counsel of Record)

Michael P. Adams

Catherine Weiss

Steven R. Shapiro

American Civil Liberties Union

Foundation

125 Broad Street

New York, New York 10004

(212) 549-2500

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................. lil

INTEREST OF AMICI] ...................... l

STATEMENT OF THE CASE..............._ l

SUMMARY OF ARGUMENT ...............__. t

EE ¢i.tus bebouxkeeorde see ae 6

I. THE DUE PROCESS CLAUSE OF THE

FOURTEENTH AMENDMENT LIMITS

THE POWER OF STATES TO INTER-

FERE IN A PARENT-CHILD RELA-

TIONSHIP AND INCLUDES A FUNDA-

MENTAL RIGHT TO FAMILY AUTON-

OMY IN CHILD-REARING DECISIONS - >

A. The Due Process Clause Of The Four-

teenth Amendment Protects The

Parent-Child Relationship ........... 6

B. The Constitutionally Protected Parent-

Child Relationship Encompasses Fam-

ily Autonomy In Child-Rearing Deci-

ee LE ee 8

C. In Recognizing The Constitutional Pro-

tection Afforded To Parent-Child Re-

lationships, This Court Has Focused

On The Realities Of Family Life

Rather Than Narrow Definitions Of

WOON eis cho kv bccn a. ll

~

Page TABLE OF AUTHORITIES

Page

Il. WASHINGTON’S NONPARENT VISI- Cases

TATION STATUTES ARE AN UNCON- a

STITUTIONAL INTERFERENCE BY Bellotti v. Baird,

THE STATE IN PARENT-CHILD RELA- Se ED cece ceccccccoces 10, 21

TIONSHIPS IN VIOLATION OF THE Carter v. Brodrick,

DUE PROCESS CLAUSE .............. 16 644 P.2d 850 (Alaska 1982) .................... 15

A. The Challenged Statutes Constitute A City of Chicago v. Morales,

Substantial Interference In The Parent- 527 U.S. __, 119 S.Ct. 1849 (1999) .. 2.2.2... 22

re scan wo @ 08 17 '

Compton v. Gilmore,

B. The "Best Interest Of The Child" 560 P.2d 861 (Idaho 1977) .................... 23

Standard Is Too Low A Threshold To iain

Permit Interference With A _ Parent- = Ce

Child Relationship On Behalf Of A 64 S.E. 269 (Ga.1909) ..... 2000. ee ee eee. 15

DCT chee hk pps e6ee sd oes 18 Employment Development Division v. Smith,

C. This Court’s Precedents Suggest That 494 U.S. 872 (1990)... ee eee ee ee 10

A Nonparent Visitation Statute Might Felton v. Felton.

Pass Constitutional Muster If It 418 N.E.2d 606 (Mass.1981) ................ 23,24

Required A Showing That Denial Of ;

Visitation Would Substantially Harm Fisher v. Fisher,

| inate aaa eae ? | 324 N.W.2d 582 (Mich.App.1982) ............... 23

Hanson v. Hanson,

SE a 25 404 N.W.2d 460 (N.D.1987) 2... 0000000000002... 23

{ Harris v. Harris,

| 343 So.2d 762 (Miss.1977) ......00202020000002.2.. 23

Houston v. Hill,

482 U.S. 451 (1987)... 2... eee ee eee ee. 22

Hush v. Devilbiss Co..,

259 N.W.2d 170 (Mich.App.1977) ............... 15

In re Adoption of Young,

364 A.2d 1307 (Pa.1976).. 2... 2 ee eee 14

‘i iii

Page

In re Custody of H.S.H.-K,

533 N.W.2d 419 (Wisc.),

cert. denied, 516 U.S. 975 (1995) .... 2... ee ee eee 15

In re Gallagher,

PR A CT | eee 14

In re Marriage of Croley,

_ by bs Ty. . 3) | ree ee 20

In re Marriage of Littlefield,

. te b>) f. 3. er 20

In re Marriage of Mentry,

190 Cal.Rptr. 843 (Cal.App.1983) ..... 2... 6.6.6. 23

In re Sego,

ips | J. *.- ree er ee 20

In re Welfare of Aschauer,

Ths be f. % Fer rs ae 19

In the Matter of the Custody of C.C.R.S.,

892 P.2d 246 (Colo.),

cert. denied, 516 U.S. 837 (1995) .... 2... 2. eee ees 15

JAL. v. E.P.H.,

682 A.2d 1314 (Pa.Super.Ct.1996) ..........--45. 15

Jacobson v. Massachusetts,

OOP GER, 86 Ge c ccc cccccnsccnccneseesusées 19

Jensen v. Jensen,

80 A.2d 244 (N.J.Super.1951) .. 2.6.5.6. ee ee eee 16

KB. v. NB.,

811 S.W.2d 634 (Tex.App.1991),

cert. denied, 504 U.S. 918 (1992) ..........05405. 16

Kelly v. Kelly,

§24 A.2d 1330 (N.J.Super.1987) ........-.--5-55- 23

iv

- pan v0

Page

Khalsa v. Khalsa,

Oe Paes CUP PAAEEED cc cccccccceccseens 23

Koelle v. Zwiren,

672 N.E.2d 868 (Ill. App.1996) .................. 14

Lambert v. Wicklund,

es occ hl oped ene dee ieeua 21

Ledoux v. Ledoux,

ey ED wooo cet svcccecesbsses 23

Lehr v. Robertson,

Pn . . ¢ k oct ove cuews aan? 5, 11, 14

Levy v. Louisiana,

ie. wneiedes née nde esss eee eee 12

London Guarantee & Accident Co. v. Smith,

64 N.W.2d 781 (Minn.1954) ...............05.. 15

Maguinay v. Saudek,

De ED 5 ou ccenesb nesivedeans 15

Matter of Marriage of Knighton,

723 S.W.2d 274 (Tex.App.1987) ................ 23

Meyer v. Nebraska,

ee 4, 8, 9, 18, 19, 24

Michael H. v. Gerald D.,

EE 7, 8, 14

Moore v. City of East Cleveland,

— § FS RE, ne See 5, 7, 13

Munoz v. Munoz,

rn hs ks ec hee da rake eee ih 23

Osier v. Osier,.

ee ee «ane gee cbkdee See es 23

Palmore v. Sidoti,

Lt | rererrrrr rere rr rr rt 12

People v. Sorenson,

hs» F Ts 8, rrr rr eee 16

Petition of Deierling,

421 N.W.2d 168 (lowa App. 1988) ............... 23

Pierce v. Society of Sisters,

- ft - PPP errrrerer ees 9,17, 18

Poe v. Ullman,

BE Ge GP ED vector ececcosetitoeessnern 7

Prince v. Massachusetts,

Ft ®. |) 6 ree es eae passim

Quinn v. Mouw-Quinn,

fk de | Y ) ) 6 rrr ree 14

Roberts v. United States Jaycees,

GED UD, GRP Ge bcc ciceccccceseceesses 22, 24

Robertson v. Robertson,

575 P.2d 1092 (Wash.App.1978) ............. 23, 24

Sanborn v. Sanborn,

— Fe) fF ) 8) rrr errr rr ee 23

Santosky v. Kramer,

Ge , PPG ccccccccsencavesscbveden 7,8

Sightes v. Barker,

684 N.E.2d 224 (Ind.App.1997) ...........--505- 24

Smith v. Organization of Foster Families,

Ge EA, GSE ccc nccenectccvaceuns 5, 13, 24

Sparks v. Hinkley,

jo f. ] |. a rere ee 15

vi

Spells v. Spells, 378 A.2d 879

I a te as es als ae kee 15

Stanley v. Illinois,

405 U.S. 645 (1972)

bee ebewecesaneceedsse passim

Tyler v. Tyler,

671 S.W.2d 492 (Tenn.App.1984)................ 16

United States v. Salerno,

rere 21, 22

Volunteer State Life Ins. Co. v. Pioneer Bank,

327 S.W.2d 59 (Tenn.App.1959) ................ 15

Washington v. Gluckberg,

iS eh ees eas oe oe 6

Wener v. Wener,

35 A.D.2d 50 (N.Y.App.1970) .................. 16

Wisconsin v. Yoder,

ee passim

Zummo v. Zummo,

574 A.2d 1130 (Pa.Super.1990) ................. 23

Statutes and Regulations

eee ae eee able e e's eée's 2, 3, 16

RCW 26.09.240, as amended,

Washington Laws of 1996, ch.177, §1(1) ........... 2

gE Ce Ce 2, 3, 16

Other Authorities

Bean, Kathleen, "Grandparent Visitation:

Can The Parent Refuse?",

24 U. Louisville J.Fam.L. 393 (1985-86) ........... 19

vii

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INTEREST OF AMICI '

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization with nearly

300,000 members dedicated to the principles of liberty and

equality embodied in the Constitution. The ACLU of

Washington is one of its statewide affiliates. Since its

founding in 1920, the ACLU has appeared before this Court

in numerous cases involving the right to family autonomy,

both as direct counsel and as amicus curiae. This case

raises those issues again. Its proper resolution is therefore a

matter of direct concern to the ACLU and its members.

STATEMENT OF THE CASE

In December 1993, petitioners Jenifer and Gary Troxel

filed a petition in Washington state court seeking a decree

ordering that they be allowed visitation with Isabelle and

Natalie Troxel, over the objections of the girls’ mother, re-

spondent Tommie Granville.’ Isabelle and Natalie were

one and three years old, respectively, at the time the petition

was filed. Brief of Pet. at 1-2. The Troxels’ son, Brad,

was the father of the girls. He committed suicide in May

1993, six months before the Troxels filed their visitation

petition.

Brad Troxel and Tommie Granville were never married,

although they lived together intermittently. After their sepa-

' Letters of consent to the filing of this brief have been lodged with the

Clerk of the Court pursuant to Rule 37.3. Pursuant to Rule 37.6, coun-

sel for amici states that no counsel for a party authored this brief in

whole or in part and no person, other than amici, its members, or its

counsel made a monetary contribution to the preparation or submission

of this brief.

? Unless otherwise indicated, facts cited in this brief are taken from the

opinion of the Supreme Court of Washington.

l

ration, Brad lived with his parents, and Isabelle and Natalie

visited him in the Troxels’ home on occasion. Although

Isabelle and Natalie continued to visit the Troxels from time

to time for a few months after Brad’s death, a dispute soon

developed between the Troxels and the children’s mother,

and she decided to limit visitation.

The Troxels then sought court-ordered visitation under

RCW 26.10.160(3) and former RCW 26.09.2402 RCW

26.10.160(3) provides:

Any person may petition the court for visita-

tion rights at any time including, but not lim-

ited to, custody proceedings. The court may

order visitation rights for any person when

visitation may serve the best interest of the

child whether or not there has been any change

of circumstances.

Former RCW 26.09.240 provides:

The court may order visitation rights for a per-

son other than a parent when visitation may

serve the best interest of the child whether or

not there has been any change of circum-

stances. A person other than a parent may pe-

tition the court for visitation rights at any time.

The court may modify an order granting or

denying visitation rights whenever modification

would serve the best interests of the child.

After a hearing on the Troxels’ petition, the trial court

entered a visitation decree ordering visitation one weekend

* Subsequent to the filing of the Troxels’ initial visitation petition, RCW

26.09.240 was amended to require that any nonparent seeking visitation

show that he or she has a significant relationship with the child and to

limit petitions to cases where the child’s parent or parents has com-

menced an action for divorce, legal separation, or modification of a par-

enting plan. Washington Laws of 1996, ch.177, §1(1).

2

= »

per month, one week during the summer, and four hours on

each of the Troxels’ birthdays. In addition, the court

ordered Ms. Granville not to speak with her children about

their father’s suicide-death until she and the Troxels had

agreed on a joint explanation. Brief of Pet. at 5. Finally,

the court ordered Tommie Granville to notify the Troxels of

the girls’ school and extracurricular activities. Brief in Opp.

to Cert. at 2.

Ms. Granville appealed, and while the appeal was pend-

ing she married Kelly Wynn. Mr. Wynn adopted Natalie

and Isabelle in February 1996.‘

The Washington Court of Appeals subsequently re-

versed the visitation order, holding that nonparents lack

standing to seek visitation under Washington’s statutes un-

less a custody action is pending. Jn re Visitation of Troxel,

940 P.2d 698 (Wash.App. 1997). The Troxels sought and

were granted review by the Supreme Court of Washington.

The Washington Supreme Court later held that the Troxels

had standing to seek visitation, but that both RCW

26.10.160(3) and former RCW 26.09.240 violated Tommie

Granville’s right under the United States Constitution to

decide how to rear her children. Jn re Custody of Smith v.

Stillwell, 969 P.2d 21 (Wash.1998).°

* In light of the children’s adoption by the mother’s husband, there may

be some question under Washington law as to whether the Troxels legal-

ly qualify as the children’s grandparents. However, as discussed in

Point IC below, this Court has never dwelt on such legal technicalities.

Because the record suggests that the Troxels have maintained a grand-

parent relationship with the children, whether they fit the legal definition

of grandparent is irrelevant to the issues before this Court.

* The Troxels’ case was combined with two others, and styled by the

Washington Supreme Court as /m re Custody of Smith v. Stillwell, 969

P.2d 21 (Wash.1998).

The Troxels filed a petition for certiorari with this

Court on July 5, 1999. The petition was granted on August

10, 1999.

SUMMARY OF ARGUMENT

Few ideas are more entrenched in our constitutional ju-

risprudence than the notion that parents, rather than the

state, are presumptively entitled to make decisions about the

best interests of their children. Plato, for one, thought

otherwise. But, as this Court noted more than seven dec-

ades ago, Plato’s "ideas touching the relations between in-

dividual and state were wholly different than those upon

which our institutions rest." Meyer v. Nebraska, 262 U.S.

390, 401 (1923). Explaining that difference, this Court has

repeatedly held: "It is cardinal with us that the custody,

care and nurture of the child reside first with the parents,

whose primary function and freedom include preparation for

obligations the state can neither supply nor hinder." Prince

v. Massachusetts, 321 U.S. 158, 166 (1944).

The Washington state statutes challenged in this case

are irreconcilable with that constitutional vision. They per-

mit the state to substitute its own judgment regarding a

child’s best interests for the contrary judgment of the child’s

own parents, and to order visitation over the parents’ objec-

tion with any third party that may petition the court. The

intrusion on family autonomy created by this statutory

scheme is a significant one. The decision about what role

other adults will play in a child’s life is a critical one for

most parents, especially when the child is too young to

make that decision independently. Nothing in our constitu-

tional tradition permits the state to override those decisions

merely because a judge disagrees.

To the contrary, this Court has recognized a broad right

to family autonomy in numerous cases over the years.

4

Loe

Moreover, the Court’s understanding of the parent-child re-

lationship has never been limited to biology. Thus, the

Court has distinguished between the constitutional rights of

an unwed father who had no ongoing relationship with his

biological children, Lehr v. Robertson, 463 U.S. 248 (1983),

and the constitutional rights of an unwed father who helped

raise his children for eighteen years. Stanley v. Illinois, 405

U.S. 645 (1972). The Court has also acknowledged that

others can and do perform a parenting role in some families.

In Prince, it was an aunt; in Moore v. City of East Cleve-

land, 431 U.S. 494 (1977), it was a grandmother: and in

Smith v. Organization of Foster Families, 431 U.S. 816

(1977), it was foster parents.

Amici recognize, of course, that the rights of parents are

not absolute. We also recognize that the "best interest of

the child" standard utilized in the Washington state statutes

is a familiar one in family law. However, this is not a case

in which the state has been forced to act as a referee be-

tween separating parents. Under those circumstances, we

agree, the "best interest of the child" standard is an appro-

priate yardstick for resolving the competing parental claims.

Nor is this a case where parental rights have been termi-

nated and the state is attempting to develop an alternative

parenting plan. And this is not a case where the state has

invoked its police power or parens patriae power to protect

children from serious harm.

Here, by contrast, there is no disagreement among par-

ents nor any claim that respondent is unfit. The decisions

she has made about how to raise her children may be wise

or unwise. But, at least absent some showing of substantial

harm to her children, respondent has a constitutional right to

raise them on her own without state interference.

ARGUMENT

I. THE DUE PROCESS CLAUSE OF THE

FOURTEENTH AMENDMENT LIMITS THE

POWER OF STATES TO INTERFERE IN A

PARENT-CHILD RELATIONSHIP AND

INCLUDES A FUNDAMENTAL RIGHT TO

FAMILY AUTONOMY IN CHILD-REARING

DECISIONS

It is well established that the Due Process Clause pro-

tects family relationships from undue state interference.

Moreover, there is a fundamental right to autonomy in

parent-child relationships, which encompasses a parent's

right to make decisions about child-rearing. Only when the

state is pursuing a compelling interest may it replace the

parent and take on responsibility for how a child will be

raised. This Court has wisely recognized that the parent-

child relationship is determined by the realities of family life

and familial relationships, rather than by isolated factors

such as biology, and has invoked the protections of the Due

Process Clause with this principle in mind.

A. The Due Process Clause Of The Four-

teenth Amendment Protects The Parent-

Child Relationship

One need look no further than the constitutional refer-

ence point of extant tradition,° as articulated in this Court's

° There has been much recent debate about the role of history and tradi-

tion in determining whether an asserted right can be located within the

protections of the Due Process Clause. See, e.g., Washington v. Gluck-

berg, 521 U.S. 702 (1997). Because the right of family autonomy is so

plainly rooted in this nation’s history and tradition, there is no need to

revisit that debate here. Nevertheless, it is worth noting that a full

historical analysis must take into account "what history teaches are the

(continued...)

cases over the past seventy-five years, to determine that the

parent-child relationship is constitutionally protected and

that the state can interfere in that relationship only in the

service of a "powerful countervailing interest." Stanley vy.

Illinois, 405 U.S. at 651. In Stanley, this Court addressed

the most drastic form of state interference -- termination of

the parent-child relationship. Under Illinois law, custody of

children born to an unwed mother automatically reverted to

the state upon the mother’s death, thus terminating the rela-

tionship between father and children regardless of father’s

fitness as a parent. Characterizing the constitutional interest

in the parent-child relationship as "essential" and one of the

"basic civil rights of man," id. at 651, this Court held that

the Due Process Clause required that Stanley be proven un-

fit before his relationship with his children could be termi-

nated by the state.

This Court used the same analysis ten years later in

Santosky v. Kramer, 455 U.S. 745 (1982), a constitutional

challenge to a New York statute that allowed termination of

parental rights upon a showing, by a fair preponderance of

the evidence, that a child had been "permanently neglected."

The question in Santosky was whether a "preponderance of

the evidence" standard was sufficient in light of the weighty

° (...continued)

traditions from which [society] developed as well as the traditions from

which it broke." Moore v. City of East Cleveland, 431 U.S. at 502 (plu-

rality opinion), quoting Poe v. Ullman, 367 U.S. 497, 542-43 (1961)

(Harlan, J., dissenting). In that sense, as Justice Harlan pointed out, "tra-

dition is a living thing." /d. at 542. Moreover, because "tradition is a

living thing,” even historically recognized rights may take different

forms over time. Thus, in conducting an historical analysis under the

Due Process Clause, it is important to "characterize relevant traditions

protecting asserted rights at levels of generality that might not be ‘the

most specific level’ available." Michael H. v. Gerald D., 491 US. 110,

132 (1989(O’Connor & Kennedy, JJ., concurring).

7

constitutional interests at stake. Noting "this Court’s histori-

cal recognition that freedom of personal choice in matters of

family life is a fundamental liberty interest protected by the

Fourteenth Amendment," id. at 753, the Court held that the

Due Process Clause requires that the state support its allega-

tions by at least clear and convincing evidence. /d. at 769.

Thus, the New York statutory scheme was ruled unconstitu-

tional.

B. The Constitutionally Protected Parent-

Child Relationship Encompasses Family

Autonomy In Child-Rearing Decisions

While the Due Process Clause places clear limits on the

state’s power to end a parent-child relationship, constitution-

al protections do not stop there. In addition, this Court has

recognized the central importance of family autonomy and

the strong constitutional interest of a parent in the “compan-

ionship, care, custody and management of his or her chil-

dren."” Stanley, 405 U.S. at 651. Several of this Court's

decisions specifically address family autonomy in child-

rearing decisions.

In Meyer v. Nebraska, 262 U.S. 390, this Court con-

sidered the constitutionality of a Nebraska statute that pro-

hibited the teaching of a foreign language to any student

who had not graduated from the eighth grade. Meyer recog-

nized the state’s general interest in improving "the quality of

its citizens" and the state’s specific interest in training stu-

dents in English. /d. at 401-02. Nonetheless, those state in-

’ This Court has not yet had the opportunity to address the child's con-

stitutional interest in maintaining the parent-child relationship. Michael

H. v. Gerald D., 491 US. at 130 ("We have never had occasion to de-

cide whether a child has a liberty interest, symmetrical with that of her

parent, in maintaining a filial relationship"). Nonetheless, amici believe

it is of equal constitutional magnitude to that of the parent.

terests were outweighed by the fundamental right of parents

"to control the education of their children." /d. Thus. the

Nebraska statute was held to violate the Due Process Clause.

This Court reached a similar conclusion two years later

in Pierce v. Society of Sisters, 268 U.S. 510 (1925), a case

involving a constitutional challenge to an Oregon statute re-

quiring parents to send their children to public schools.

This Court had no difficulty holding that the statute violated

the rights of Oregon parents under the Due Process Clause:

Under the doctrine of Meyer v. Nebraska, we

think it entirely plain that the Act of 1922 un-

reasonably interferes with the liberty of parents

and guardians to direct the upbringing and edu-

cation of children under their control .. .

The child is not the mere creature of the state:

those who nurture him and direct his destiny

have the right, coupled with the high duty, to

recognize and prepare him for additional obli-

gations.

Id. at 534-35 (citation omitted).

Almost a half century later, this Court reaffirmed the

constitutional protections provided to parental decisions

about child-rearing in Wisconsin v. Yoder, 406 U.S. 205

(1972). In Youer, parents who were Old Order Amish chal-

lenged the constitutionality of their criminal convictions

under a Wisconsin statute requiring children to attend high

school. The Yoders refused to send their children to high

school because it conflicted with the Amish religion and

way of life. This Court once again recognized that the "pri-

mary role of the parents in the upbringing of their children

is now established beyond debate as an enduring American

tradition." /d. at 232. This constitutional interest, together

with the free exercise interests of Amish parents, were held

sufficient to override the state’s strong interest in universal

education."

To be sure, a parent’s right to raise her child as she sees

fit is not absolute and may be overcome in some circum-

stances even when a parent is not unfit. For example, this

Court has recognized that thee are circumstances in which a

child’s own constitutional right to make important decisions

for herself must take precedence over parental control. See,

e.g.. Bellotti v. Baird, 443 U.S. 622 (1979)(state must pro-

vide opportunity for minor to seek court order allowing her

to obtain abortion without parental involvement).

Moreover, under some circumstances the state may

override a parent's child-rearing decision even in the ab-

sence of a countervailing constitutional interest. Prince v.

Massachusetts, 321 U.S. 158, provides one example. In

Prince, this Court was asked to determine whether the Due

Process Clause prohibited Massachusetts from enforcing its

child labor laws against Sarah Prince, a Jehovah's Witness

who wished her niece and ward to accompany her and help

her sell religious publications. While recognizing that there

is a “private realm of family life which the state cannot

enter,” id. at 166, this Court nonetheless held that Massachu-

setts did not violate Mrs. Prince’s constitutional rights by

prosecuting her for violating the state's child labor laws.

Prince cannot be read as a charter, however, authorizing

wholesale state intervention in a parent’s judgments about

child-rearing. Instead, Prince is best understood as an ex-

ample of this Court’s deference to a state’s use of its police

* While the free exercise interests of the Amish parents were an impor-

tant element of the Yoder decision, this Court has since explained that it

would not have ruled as it did were it not for the Due Process Clause’s

protection of parental child-rearing decisions. See Employment Develop-

ment Division v. Smith, 494 U.S. 872, 881 (1990).

10

—

————

power to protect children as a class from the dangerous con-

ditions associated with child labor, a rampant social problem

in many parts of the country in the first part of this century.

Id. at 168. Indeed, this Court has limited Prince to a “nar-

row scope," recognizing that the decision was influenced by

"the Court’s severe characterization of the evils that it

thought the legislature could legitimately associate with

child labor .. ." Yoder, 406 U.S. at 229-30.

C. In Recognizing The Constitutional Pro-

tection Afforded To Parent-Child Re-

lationships, This Court Has Focused On

The Realities Of Family Life Rather

Than Narrow Definitions Of Who Is A

Parent

It is not fatal to an individual's quest for a court order

preserving a relationship with a child that the individual

seeking the court order may not, in fact, be a biological

parent. While this Court has consistently invoked the Due

Process Clause to protect parent-child relationships, it has

never defined those relationships by biology alone. "The in-

tangible fibers that connect parent and child have infinite

variety. They are woven throughout the fabric of our socie-

ty, providing it with strength, beauty, and flexibility." Lehr

v. Robertson, 463 U.S. at 256. An approach to family that

"disdains present realities in deference to past formalities, []

needlessly risks running roughshod over the important inter-

ests of both parent and child." Stanley, 405 U.S. at 657.

The constitutional protections accorded to the parent-

child relationship and the right to family autonomy in child-

rearing have been recognized whenever a parenting relation-

ship in fact exists, regardless of legal technicalities.’ In

* This does not change the position of the Troxels with regard to visita-

(continued...)

1]

Stanley, this relationship-based approach was applied on be-

half of a father, when the Court struck down an Illinois stat-

ute that clung to historical formalities by providing that an

unwed father was never a "parent" entitled to a fitness hear-

ing before termination of parental rights. In rejecting the ir-

rebuttable presumption that lilinois law embraced, this Court

emphasized that the father in Stanley had lived with and

raised his children for eighteen years, despite the fact that he

never married the children’s mother. Similarly, in Levy v.

Louisiana, 391 U.S. 68 (1968), the Court struck down a

Louisiana statute denying natural but "illegitimate" children

the right to initiate a wrongful death action because, as the

Court later explained in Stanley, 405 U.S. at 652, "familial

bonds in such cases were often as warm, enduring, and im-

portant as those arising within a more formally organized

family unit."

This Court also adopted a functional approach in Prince

v. Massachusetts, 321 U.S. 158, when it treated the relation-

ship of Sarah Prince and her niece as that of parent and

child. The Court allowed Mrs. Prince to invoke "the par-

ent’s claim to authority in her own household and in the

rearing of her children,” id. at 165, because she exhibited

"motherlike" behavior in rearing the child and was the

* (...continued)

tion, since they have never claimed that they maintained a parental rela-

tionship with respondent's children. However, because the Court's dis-

position of the Troxels’ claims will influence the subsequent develop-

ment of case law in the family arena, amici believe it is important to

emphasize this Court’s nuanced analysis of who may be afforded the

protections inherent in the parent-child relationship. Ultimately, these

matters will be settled largely by state courts. Palmore v. Sidoti, 466

U.S. 429, 431 (1984). This Court’s flexible approach, combined with

vigilant protection of the family as required by the Due Process Clause,

allows the states maximum latitude as they continue to experiment to

identify the best approaches to rights and responsibilities in modern

family life.

12

child’s custodian. /d. at 162. Likewise, in considering what

constitutional interest foster parents may have in maintaining

a relationship with children in their care, this Court stressed

that it is the actual relationship between adult and child that

determines the family unit:

Thus the importance of the familial relation-

ship, to the individuals involved and to the so-

ciety, stems from the emotional attachments

that derive from the intimacy of daily associa-

tion, and from the role it plays in "promotf{ing]

a way of life" through the instruction of chil-

dren as well as from the fact of blood relation-

ship. No one would seriously dispute that a

deeply loving and interdependent relationship

between an adult and a child may exist even in

the absence of blood relationship.

Smith v. Organization Of Foster Families, 431 U.S. at 844

(citation omitted).

Finally, in Moore v. City of East Cleveland, 431 U.S.

494, a plurality of this Court invoked the Due Process

Clause to protect the relationship between a grandmother

and the two grandsons she was raising in her home. East

Cleveland’s housing ordinance limited occupancy to single

family dwellings and defined "family" in such a way that

Mrs. Moore’s was excluded. The fact that Mrs. Moore had

taken on “major responsibility for the rearing of the

children" and that the family occupied the same household

was crucial to the Court’s determination that the housing

ordinance violated the Moore family’s rights under the Due

Process Clause."

© By contrast, this Court has rejected the claim that a biological connec-

tion, without anything more, is sufficient to establish a constitutionally

(continued...)

13

This Court’s relationship-based approach is supported

by a strong state law tradition of focusing on the realities of

family life when sorting through the rights and responsibili-

ties of parents and children. State courts have repeatedly

recognized the right of an individual who has maintained a

parental relationship with a child to seek custody and/or

visitation, regardless of legal relationship or biological con-

nection to the child. Some of these cases have relied on an

"equitable parent doctrine," under which a biological parent

is estopped from denying the parenthood of a nonbiological

parent if they have both acted as the child’s parents.’’

Other state cases have granted visitation, absent a biological

° (continued)

protected parent-child relationship. For example, Lehr v. Robertson, 463

U.S. 248, held that an unwed biological father who never took any part

in the rearing of his child and who failed to register as the child’s puta-

tive father was not constitutionally entitled to notice and hearing prior to

the child’s adoption by the mother’s husband. And, in Michael H. v.

Gerald D., 491 U.S. 110, this Court denied parental status to a man who

impregnated a woman married to another man, upholding the constitu-

tionality of a California statute that presumed the child to be of the mar-

riage. Justice Scalia contrasted the unmarried father in Stanley, who

lived with and supported his children for eighteen years, with Michael

H., whose principal claim to parenthood was biological. /d. at 124.

'' See, e.g, In re Adoption of Young, 364 A.2d 1307 (Pa.1976)(mother

estopped from terminating former husband’s parental rights, based on

fact he was not biological father, because husband had acted as father

and been treated as father by mother); /n re Gallagher, 539 N.W.2d 479

(lowa 1995)(under equitable parent doctrine, former husband allowed to

bring claim for custody of two-year-old child with whom he had devel-

oped parent-child relationship during marriage); Koelle v. Zwiren, 672

N.E.2d 868 (IIl_App.1996)(man who was the only father child had ever

known awarded visitation rights, even though he was not biological par-

ent and visitation was not specifically authorized by statute); Quinn v.

Mouw-Quinn, 552 N.W.2d 843 (S.D.1996)(court may order visitation for

mother’s ex-husband, even though he was not biological parent, because

he was only father child knew during her seven years of life).

14

tie and over the objections of the biological parent, where a

parent-child relationship developed, based on the in loco

parentis doctrine." These custody and visitation cases

were presaged by an older body of state case law recog-

nizing parent-child relationships, and assigning rights and

responsibilities accordingly, in a broad range of circum-

stances."

° See, e.g, Spells v. Spells, 378 A.2d 879 (Pa Super.Ct.1977) visitation

granted to stepparent who functioned as parent to child); Carter v. Brod-

rick, 644 P.2d 850 (Alaska 1982)(same); /n re Custody of H.S.H.-K, 533

N.W.2d 419 (Wisc.), cert. denied, 516 U.S. 975 (1995)biological

mother’s former lesbian partner could obtain visitation by proving she

had parental relationship with child and visitation in child’s best inter-

est); JAL. v. EP.H., 682 A.2d 1314 (PaSuper.Ct.1996)(same). See

also In the Matter of the Custody of C.C_RS., 892 P.2d 246 (Colo.),

cert. denied, 516 U.S. 837 (1995)(custody will be awarded to "psycho-

logical parent" over natural parent if in the child’s best interest).

As far back as the mid-nineteenth century, the Tennessee Supreme

Court held that a stepfather had standing to sue for damages for an in-

jury to his stepdaughter, despite the absence of any legally defined

parent-child relationship. Maguinay v. Saudek, 37 Tenn. 146 (Tenn.

1857)(because stepfather who assumed all! the responsibilities of a parent

was considered in loco parentis to the child and could be held liable for

child support, corresponding right to service and control of child should

be same). Similarly, in Eaves v. Fears, 64 S.E. 269 (Ga.1909), the

Georgia Supreme Court held that grandparents who stood in loco pa-

rentis to a child were entitled to the proceeds from the child’s labor and

concomitantly responsible for the child’s care, maintenance and support.

See also Sparks v. Hinkley, 5 P.2d 570 (Utah 1931)(because aunt stood

in loco parentis to nephew, relationship was akin to that of parent and

child and nephew was not entitled to recoup the contributions he made

to aunt’s support upon her death); London Guarantee & Accident Co. v.

Smith, 64 N.W.2d 781 (Minn.1954)(granting parental immunity in negli-

gence actions by children against stepparents because of duties and re-

sponsibilities they assume with respect to their children); Hush v. Devil-

biss Co., 259 N.W.2d 170 (Mich.App.1977)(applying London Guarantee

to extend parental immunity to grandmother functioning as parent); Vol-

(continued...)

15

In sum, under a long line of state cases, the lack of a

biological or legal tie eviscerates neither the rights nor the

responsibilities that adhere in a parent-child relationship.

Consistent with that understanding, this Court’s emphasis on

protection for parent-child relationships has not operated to

deny the realities of family life, but instead has encom-

passed them.

Il. WASHINGTON’S NONPARENT VISITATION

STATUTES ARE AN UNCONSTITUTIONAL

INTERFERENCE BY THE STATE IN

PARENT-CHILD RELATIONSHIPS IN VIO-

LATION OF THE DUE PROCESS CLAUSE

The Troxels sought and obtained visitation with

Tommie Granville’s children, over her objection, pursuant to

RCW 26.10.160(3) and former RCW 26.09.240, both of

which address the visitation rights of nonparents. Both

statutes allow any person to seek and obtain a court order

for visitation af any time upon a showing that visitation

"may serve" the child’s best interest.

(continued)

unteer State Life Ins. Co. v. Pioneer Bank, 327 S.W.2d 59 (Tenn.App.

1959)\(potential adoptive parents who raised child since shortly after

birth stood in loco parentis to child and were therefore entitled to bene-

fit from rule that parent has insurable interest in child’s life).

' See, e.g., Jensen v. Jensen, 80 A.2d 244 (N.J.Super.1951)(man could

not escape child support payments by proving he was not biological

father where he held out children as his own); People v. Sorenson, 437

P.2d 495 (Cal.1968)(upholding defendant's conviction for failure to pro-

vide support for child to former wife, even though he was not biological

parent, because he represented himself as father). See also Wener v.

Wener, 35 A.D.2d 50 (N.Y.App.1970); Tyler v. Tyler, 671 S.W.2d 492

(Tenn.App.1984); K.B. v. N.B., 811 S.W.2d 634 (Tex.App.1991), cert.

denied, 504 U.S. 918 (1992).

16

A. The Challenged Statutes Constitute A

Substantial Interference In The Parent-

Child Relationship

At the outset, it is worth noting that when a court inter-

venes in a parent-child relationship and orders that a child

have visitation with a third party, over the parent’s objec-

tion, a substantial burden has been placed on family autono-

my in child-rearing. The right to family autonomy in child-

rearing necessarily encompasses a parent’s judgments about

such everyday but nonetheless critical questions as: with

whom the child will maintain an ongoing and intimate fam-

ily relationship; with whom the child will spend substantial

amounts of time; and to whom the child will look for

healthy adult role models. It is precisely these types of

decisions, central to the upbringing of children, that are

generally reserved to parents in the absence of an overriding

state interest. See Pierce, 268 U.S. 510; Yoder, 406 U.S.

205. To transfer such decisions to a state court, whenever

any third party files a visitation petition, cannot persuasively

be characterized as a minor or inconsequential burden on the

parent-child relationship.

One need look no further than the visitation order en-

tered on behalf of the Troxels to aptly illustrate the point.

The trial court entered a decree ordering visitation with the

Troxels one weekend per month, one week during the sum-

mer, and four hours on each of the Troxels’ birthdays. Jn

Custody of Smith v. Stillwell, 969 P.2d 21, 23 (Wash. 1998).

In addition, the trial court prohibited Ms. Granville, the

mother, from talking to her children about the suicide-death

of their father until she and the Troxels were able to arrive

at a joint explanation. Brief of Pet. at 5. Finally, the trial

court ordered Ms. Granville to notify the Troxels of the

children’s school and extracurricular activities. Brief In

Opp. To Cert. at 2.

17

Thus, the trial court in this case vetoed a mother’s deci-

sion about what type of relationship her children should

have with third parties, substituted itself for the mother in

deciding who would be included as the children’s adult role

models and, at the behest of third parties, ordered the

mother not to help her children understand the suicide-death

of their father. Clearly, the trial court, acting pursuant to

the challenged statutes, substantially interfered with the

parent-child relationship enjoyed by Ms. Granville and her

children. Indeed, this Court has found a violation of the

Due Process Clause based on a far less significant burden on

parental decisionmaking. Meyer, 262 U.S. at 403 (statute

that prohibited teaching foreign languages to students who

had not completed eighth grade violates parents’ constitu-

tional right to control the education of their children)."°

B. The "Best Interest Of The Child"

Standard Is Too Low A Threshold To

Permit Interference With A _ Parent-

Child Relationship On Behalf Of A

Third Party

The "best interest of the child" standard utilized in the

challenged statutes is, by its nature, imprecise and broadly

defined. Under Washington law, the breadth of factors to

'S It is true that government can influence a child’s role models, most

notably through the provision of public education. But the state's espe-

cially strong interest in the education of childven for citizenship is well-

established. Meyer, 262 U.S. at 399; Yoder, 406 U.S. at 214. The state

has no comparable interest in interfering with a fit parent’s decisions

about what adults will have a familial relationship with her child, and

what forms those relationships will take. Stanley, 405 U.S. at 657-58

("The State’s interest in caring for Stanley's children is de minimus if

Stanley is shown to be a fit parent"). Indeed, even in the context of ed-

ucation, a parent can choose alternative role models by exercising her

constitutional right to remove her child from public education in favor

of a private school. Pierce, 268 U.S. 510.

18

be considered in applying the test are indeterminate and "not

capable of specification, each case being largely dependent

upon its own facts and circumstances." In re Welfare of

Aschauer, 611 P.2d 1245 (Wash.1980). The broad discre-

tion which such a test invests in the court unavoidably

places the state, rather than the parent, in the position of de-

ciding how the child is best reared. Granting such powers

to a court, at the expense of a fit parent, conflicts with the

constitutional protections afforded to parental decision-

making:

For the state to delegate to the parents the au-

thority to raise the child as the parents see fit,

except when the state thinks another choice

would be better, is to give the parents no au-

thority at all. "You may do whatever you

choose, so long as it is what I would choose

also" does not constitute a delegation of au-

thority.

Kathleen Bean, "Grandparent Visitation: Can The Parent

Refuse?", 24 U. Louisville J.Fam.L. 393, 441 (1985-86).

There is no precedent in this Court’s decisions for al-

lowing a state to interfere, on behalf of a third party, in a fit

parent's decisionmaking about child-rearing on a "best inter-

est of the child" showing. Indeed, when a fit parent is

raising a child, the state’s interest in that child’s care is gen-

erally "de minimus." Stanley, 405 U.S. at 657-58. Here.

the contrast with decisions of this Court that have allowed

state interference with parental child-rearing is instructive.

For example, the state generally may require school attend-

ance Over a parent’s objection. Meyer, 262 U.S. at 399:

Yoder, 406 U.S. at 214. Likewise, the state may require

both children as well as adults to be vaccinated for protec-

tion from communicable diseases. Prince, 321 U.S. at 166-

67; Jacobson v. Massachusetts, 197 U.S. 11 (1905). And,

as discussed above, this Court held in Prince that state child

19

labor laws could be enforced against a parent who arranged

for her child to sell publications in the street. Thus, state

interference in the parent-child relationship has been per-

mitted to protect children from illiteracy, disease, and the

severe effects of working outside the home at an early age.

The state simply has no interest of comparable weight in

acting on behalf of a third party to veto a fit parent's judg-

ment concerning with whom her children should spend time.

Stanley, 405 U.S. at 657-58.

The “best interest of the child" standard has historically

been reserved for cases involving conflict between two par-

- ents who are dissolving their relationship, or cases in which

there is not a fit parent caring for the child. Thus, in Wash-

ington when two fit parents are ending their relationship and

are unable to agree on child-rearing choices, the court is

given broad discretion to develop and order a parenting

plan. Jn re Marriage of Littlefield, 940 P.2d 1362, 1368

(Wash.1997). In that context, a court’s exercise of such un-

fettered discretion cannot be constitutionally suspect because

the conflict between the parents leaves no parental decision-

maker to whom the court can defer. Indeed, the court

“compares the merit of the prospective custodians and

awards custody to the better of the two." Jn re Marriage of

Croley, 588 P.2d 738 (Wash.1978). A court could not con-

stitutionally engage in such an inquiry as between a fit par-

ent and a nonparental third party. Stanley, 405 U.S. 645.

Similarly, when the state is confronted with unfit par-

ents in a dependency hearing, it cannot be constitutionally

questioned that the rights of those parents are secondary,

and the child’s best interest is paramount. In such cases, a

parent cannot or will not care for the child, and the state

therefore has a compelling interest in providing care. In re

Sego, 513 P.2d 831, 832 (Wash. 1973)("when the rights of

parents and the welfare of their children are in conflict, the

welfare of the minor children must prevail").

20

The best interest test may also play a role in some cir-

cumstances when a minor asserts a constitutional right to act

independent of parental authority. For example, in the abor-

tion context, the state may either permit minors who so

choose to make the abortion decision without parental in-

volvement, or may instead require parental involvement or a

court order before a minor has an abortion. Bellotti v.

Baird, 443 U.S. 622. If a minor goes to court for a waiver

of a parental involvement requirement, and the court finds

that she is not mature enough to make the abortion decision

on her own, the court must then determine whether an abor-

tion (without parental involvement) would be in her “best

interest." Jd. at 644; Lambert v. Wicklund, 502 U.S. 292.

—. 117 S.Ct. 1169, 1172 (1997). In such a case, applica-

tion of the best interest standard may be critical to the vin-

dication of the minor's own constitutional rights.

The Washington statutes challenged here do not, how-

ever, provide a mechanism by which the minor can engage

in constitutionally protected conduct independent of the par-

ent. Nor is the state acting in loco parentis in the absence

of a fit parent. Nor is one fit parent pitted against another.

Instead, here the state is acting on behalf of a third party to

override the judgment of a fit parent about what is best for

her child. Under such circumstances, application of the best

interest test is an unconstitutional intrusion into the parent-

child relationship. '°

'* As noted by the state supreme court, the intrusiveness of the best in-

terests standard is magnified in this case by the fact that the challenged

Statutes permit any person to file a visitation petition, regardless of that

person's past relationship with the child. Petitioners do not quarrel with

this authoritative construction of state law. Citing United States v.

Salerno, 481 U.S. 739 (1987), however, petitioners argue that the state

supreme court erred in declaring the statutes facially invalid on the basis

of this expansive standing rule since, they point out, virtually all the re-

(continued...)

21

C. This Court’s Precedents Suggest That A

Nonparent Visitation Statute Might Pass

Constitutional Muster If It Required A

Showing That Denial Of Visitation

Would Substantially Harm A Child

While Washington’s nonparent visitation statutes are in

our view clearly unconstitutional, we believe that a carefully

crafted law which permitted third party visitation upon a

showing of harm might well be constitutional. Wisconsin v.

Yoder, 406 U.S. at 206.

'® (continued)

ported cases involve grandparents or other close relatives. Even accept-

ing the accuracy of this assertion, arguendo, petitioners’ reliance on

Salerno is misplaced for several reasons. First, the proposition for

which Salerno is cited -- that a law can be declared facially unconstitu-

tional only if "no set of circumstances exists under which [it] would be

valid,” id. at 745 -- "has never been the decisive factor in any decision

of this Court, including Salerno itself." City of Chicago v. Morales, 527

U.S. _, _, 119 S.Ct. 1849, 1858 (1999)(plurality opinion). In part,

that may be because Salerno proposes a second test in the very next sen-

tence that more closely resembles the traditional standard of substantial

overbreadth. Salerno, 481 U.S. at 745 (statute should not be struck

down if it is only unconstitutional in "some conceivable set" of marginal

circumstances). Second, whatever its application in other contexts, the

more rigid Salerno rule has never been the test for facial invalidity in

First Amendment cases. E.g., Houston v. Hill, 482 U.S. 451 (1987).

And, while the constitutional right of family autonomy is most frequent-

ly discussed in substantive due process terms, it plainly also has roots in

the First Amendment right of intimate association. See Roberts v.

United States Jaycees, 468 U.S. 609 (1984). Third, the challenged stat-

utes in this case are unconstitutional even under Salerno’s most exacting

formulation. The “best interest of the child" standard will never give

proper deference to the sanctity of the parent-child relationship and will

always hold those seeking visitation to a lower threshold than is consti-

tutionally permissible. Thus, the statutes can never be constitutionally

applied because they a/ways apply a constitutionally deficient test. See

Morales, 119 S.Ct. at 1866 (Breyer, J. concurring){a statute that always

applies an unconstitutional standard is always unconstitutional).

22

This case does not require the Court to delineate more

precisely the constitutional tests that should be used to de-

cide if a state law or state court decision which requires

some showing of harm is sufficient. State courts, which are

charged with sorting out family disputes, have been devoting

considerable attention to just what those standards ought to

be. For example, the issue has received significant attention

in state cases addressing the circumstances under which the

courts may interfere when separating parents cannot agree

about the religious upbringing of a child. Because of the

free exercise interests involved in those cases, state courts

have eschewed the “best interests of the child" test normally

applied to resolve child-rearing conflicts between separating

parents, and instead have applied a substantial harm stand-

ard. Thus, most state courts have held that each parent can

choose what, if any, religious training to provide for the

child, without state interference, absent a showing of a "sub-

stantial threat of present or future, physical or emotional

harm to the child." Zummo v. Zummo, 574 A.2d 1130 (Pa.

Super.1990).'"_ Under these cases, harm to a child cannot

be simply assumed or surmised. Felton v. Felton, 418

N.E.2d 606, 607 (Mass.1981); Hanson v. Hanson, 404

N.W.2d 460, 464 (N.D.1987). Instead, a factual showing is

required, and the harm must be demonstrated in detail.

” See. e.g., Munoz v. Munoz, 489 P.2d 1122 (Wash.1971); Robertson v

Robertson, 575 P.2d 1092 (Wash.App.1978); Ledoux v. Ledoux, 452

N.W.2d | (Neb.1990); Khalsa v. Khalsa, 751 P.2d 715 (N.M.App.1988);

Petition of Deierling, 421 N.W2d 168 (lowa App. 1988); Matter of

Marriage of Knighton, 723 S.W2d 274 (Tex.App.1987); Hanson y

Hanson, 404 N.W.2d 460 (N.D.1987); Kelly v. Kelly, 524 A2d 1330

(N.J.Super.1987), In re Marriage of Mentry, 190 Cal.Rptr. 843 (Cal.

App.1983), Sanborn v. Sanborn, 465 A.2d 888 (N.H.1983); Fisher v

Fisher, 324 N.W.2d 582 (Mich.App.1982); Felton v. Felton, 418 N.E.2d

606 (Mass.1981); Osier v. Osier, 410 A.2d 1027 (Me.1980); Compton v

Gilmore, 560 P.2d 861 (Idaho 1977); Harris v. Harris, 343 So.2d 762

(Miss. 1977)

23

Robertson v. Robertson, 575 P.2d 1092, 1093 (Wash.App.

1978); Felton, 418 N.E. 2d at 607. And, while the harm in-

volved may be present or future injury, it typically must en-

danger the child's physical, mental or emotional health.

Robertson, 575 P.2d at 1093. Some state cases also suggest

that they will not entertain a request to order visitation over

a parent's objection unless the third party involved has a sig-

nificant relationship with the child in question. See, e.g.,

Sightes v. Barker, 684 N.E.2d 224, 230 (Ind.App.1997).

Since Washington's statutes required no showing of

harm at all, they are plainly unconstitutional. The question

of whether other standards for determining harm may be

constitutionally adequate should be left for a case which

presents the issue squarely. It may well be that this Court

will never need to say more than it already has. This Court

has already made it plain that a clear showing of harm is es-

sential. Meyer v. Nebraska, 262 U.S. at 403. And this

Court has also recognized that “emotional attachments that

derive from the intimacy of daily association" and the

"deeply loving and interdependent relationship|s]" that can

develop when an adult cares for a child over time do not re-

quire a biological or a marital relationship. Smith, 431 U.S.

at 844; Stanley, 405 U.S. 645." It is quite possible that

the state courts that deal with the reality of family life day

in and day out may need no more guidance than that.

'* See also Roberts v. United States Jaycees, 468 U.S. at 618-20 ("Fami-

ly relationships, by their nature, involve deep attachments and commit-

ments to the necessarily few other individuals with whom one shares not

only a special community of thoughts, experiences, and beliefs but also

distinctively personal aspects of one’s life”).

24

CONCLUSION

For the reasons stated above, the judgment of the

Supreme Court of Washington should be affirmed.

Respectfully submitted,

Matthew A. Coles

(Counsel of Record)

Michael P. Adams

Steven R. Shapiro

Catherine Weiss

American Civil Liberties Union

Foundation

125 Broad Street

New York, New York 10004

(212) 549-2500

Dated: December 13, 1999

25