Amicus Curiae Brief — Troxel v. Granville

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Supreme Court of the United States

JENIFER TROXEL, et vir.,

Petitioners,

TOMMIE GRANVILLE,

Respondent.

On Writ Of Certiorari To The

Supreme Court Of The State Of Washington

BRIEF AMICI CURIAE OF CHRISTIAN LEGAL

SOCIETY AND THE NATIONAL ASSOCIATION OF

EVANGELICALS IN SUPPORT OF RESPONDENT

KimMBERLEE Woop Co sy RicHarp W. GARNETT

Counsel of Record Norre Dame Law SCHOOL

a Notre Dame, Indiana‘46556

Cart H. Esseck (219) 631-6981

CHRISTIAN LEGAL SOCIETY MIcHAEL STOKES PAULSEN

Center for Law and UNIVERSITY OF MINNESOTA

Religious Freedom Law SCHOOL

4208 Evergreen Lane 229 19th Avenue S.

Suite 222 Minneapolis, Minnesota

Annandale, Virginia 22003 55455

(703) 642-1070 ext. 3500 (612) 625-0018

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

ee i

pe Pe iii

STATEMENT OF INTEREST OF AMICI CURIAE.... 1

STATEMENT OF THE CASE....................... 2

SUMMARY OF ARGUMENT....................... 6

IE 60064 os 065s evaw idee dadediibasde dnc. 9

I. PARENTS ENJOY THE FUNDAMENTAL RIGHT

TO DIRECT THEIR CHILDREN’S EDUCATION

AND UPBRINGING, AND TO DECIDE WHO

AND WHAT WILL INFLUENCE AND SHAPE

THEIR CHILDREN DURING THEIR FORMA-

TIVE YEARS, WITHOUT JUDICIAL APPROVAL

OR SECOND-GUESSING BY THE STATE ...... 9

A. Our Nation’s History and Tradition, Not the

Policy Preferences of Judges or Popular

Majorities and Not Novel Sociological Theo-

ries, Inform and Constrain This Court's

Interpretation and Exposition of the Due

PO IIE uc vhede cncobedevenbdeewinie 9

B. This Court has Held, and Should Reaffirm, That

Parents Enjoy the Fundamental, Constitu-

tionally Protected Right to Direct the Upbring-

ing and Education of Their Children......... 11

C. Washington’s Sweeping Third-Party Visita-

tion Statutes Infringe Parents’ Rights and

Must Therefore Be Put to Strict Scrutiny... 16

TABLE OF CONTENTS - Continued

Page

D. Washington’s Expansive Third-Party Visitation

Statutes Cannot Survive Strict Scrutiny. ......

E. The Washington Statutes are Unconstitu-

tional on Their Face, and This Court Should

Resist Petitioners’ Efforts to Distract Its

Attention from the Intrusiveness of the

Washington Statutes to the Standard of

TSE el ROR AS ry Ee epee

PARENTS’ RIGHT TO DECIDE WHO AND

WHAT ARE APPROPRIATE INFLUENCES ON

THEIR CHILDREN’S DEVELOPMENT, EDUCA-

TION, AND CHARACTER IS EXPRESSIVE

ACTIVITY PROTECTED BY THE FIRST

PTIITTIIIIIET ccc cccccccvcccccccccccccsccccces

A. The First Amendment Protects Expressive

Association from Co-option and Censorship

Roy thre Stmbe. 0. ccc cccccccccccccsecccceces

B. The First Amendment's Protection of Expres-

sive Association Extends to Family Autonomy

and to Parents’ Choices about the Education

and Upbringing of Their Children...........

ES ES a

en heabiisnuseianes: App. 1

ili

TABLE OF AUTHORITIES

Page

Cases

Brown v. Hot, Sexy, and Safer Prod., Inc., 68 F.3d 525

(1st Cir. 1995), cert. denied, 516 U.S. 1159 (1996).... 18

Clonlara, Inc. v. Runkel, 722 F. Supp. 1442 (E.D.

PE MER tubaseseedotesecconcsecudcccecesesenes 18

Collins v. Harker Heights, 503 U.S. 115 (1992) ..... 10, 11

Democratic Party of United States v. Wisconsin ex rel.

LaFollette, 450 U.S. 107 (1981)..................... 24

Dolan v. City of Tigard, 512 U.S. 374 (1994).......... 17

Farrington v. Tokushige, 273 U.S. 284 (1927) .......... 28

Hanson v. Cushman, 490 F. Supp. 109 (W.D. Mich.

Sa Sdnecadedestecdesdocessbiosdeuasccseccoscees 18

Henne v. Wright, 904 F.2d 1208 (8th Cir. 1990), cert.

denied, 498 U.S. 1032 (1991)...........0 0. cee ee ee, 19

Herndon v. Chapel Hill-Carrboro City Bd. of Educ., 89

F.3d 174 (4th Cir. 1996), cert. denied, 519 US.

Meth dasebGNGEbsWheseedecceceecenccecuces 18

Hurley v. Irish-American Gay, Lesbian & Bisexual

Group of Boston, Inc., 515 U.S. 557 (1995)....... 25, 29

Immediato v. Rye Neck Sch. Dist., 73 F.3d 454 (2d

Cir.), cert. denied, 519 U.S. 813 (1996).............. 18

In re Care and Protection of Charles, 399 Mass. 324,

Be SE BOE GUND occcccccceccccccesesdccceces 18

In re Visitation of Troxel, 87 Wash. App. 131, 940

P.2d 698 (Wash. Ct. App. 1997) ...............05. 3, 9

Jordan v. Jackson, 15 F.3d 333 (4th Cir. 1994)...... 13, 19

TABLE OF AUTHORITIES - Continued

Page

Meyer v. Nebraska, 262 U.S. 390 (1923)........ 19, 20, 27

Michael H. v. Gerald D., 491 U.S. 110 (1989) ....... 9, 10

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

UNTO se cbavcsdccoedestbisessnedatiecenebad 10, 13, 27

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449

GEOUEE 6 ccndctennnsdséucenctsaintenenecdbetieddaan 24

Ohio Ass'n of Indep. Sch. v. Goff, 92 F.3d 419 (6th

Cir. 1996), cert. denied, 520 U.S. 1104 (1997) ....... 18

Parham v. J.R., 442 U.S. 584 (1979) ............... 12, 15

Peterson v. Minidoka City Sch. Dist., 118 F.3d 1351

(9th Cir. 1997), amended, 132 F.3d 1258 (1997) ..... 18

Pierce v. Society of Sisters, 268 U.S. 510 (1925)... 18, 19, 27

Planned Parenthood v. Casey, 505 U.S. 833 (1992) ..... 22

Prince v. Massachusetts, 321 U.S. 158 (1944)....... 11, 15

Reno v. Flores, 507 U.S. 292 (1993)................ 16, 20

Roberts v. United States Jaycees, 468 U.S. 609

GED we nnccdncvengtbeewdbnancéeensinenekt 24, 25, 28

Santosky v. Kramer, 455 U.S. 745 (1982) ............. 20

Schleifer v. City of Charlottesville, 159 F.3d 843 (4th

Cir. 1998), cert. denied, 119 S.Ct. 1252 (1999)....... 19

Smith v. Org. of Foster Families for Equality and

Reform, 431 U.S. 816 (1977) ................ 13, 14, 28

Snyder v. Massachusetts, 291 U.S. 97 (1934)........... 10

Stanley v. Illinois, 405 U.S. 645 (1972)................ 15

State v. Whisner, 47 Ohio St. 2d 181, 351 N.E.2d 750

GREE 60 dovebocces én dikecdentiaéetsishiaaeaie 19

TABLE OF AUTHORITIES - Continued

United States v. Salerno, 481 U.S. 739 (1987).........- 22

; , 521 U.S. 702 (1997)

Washington v. Glucksberg 7,9, 10, 11, 16, 19

Wisconsin v. Yoder, 406 U.S. 205 (1972)......-.. 12, 20, 26

CONSTITUTIONAL PROVISIONS

First Amendment, Const. Amend. |......------. passim

Fourteenth Amendment, Const. Amend. XIV .... passim

STATUTES

Revised Code of Washington § 26.10.160(3)...-....--. 3

Revised Code of Washington § 26.09.240...........-. 3

OTHER MATERIALS

Peter BERGER AND RicHarRD JOHN Neunaus, To

Empower Peopte: THE Rove of Mepiatinc Struc-

tures IN Pusuic Pouicy (1977) ......----- ee eee rece 25

Avexis De Tocquevitte, Democracy IN AMERICA ™

(1969 ED.) 2... cece cece cece eee eee eee eeeeeneeneeees

illes, Stephen G., On Educating Children: A Parental-

Not Manifesto, 63 Univ. Chi. L. Rev. 937 (1996)..... 14, 15

J. Kent, COMMENTARIES ON AMERICAN ie. . ceeseaecenee 12

osepH P. Viteritm, CHoosinc Equatity: SCHOOL

, Cuoice, THE CONsTITUTION, AND Civ Society

INTEREST OF THE AMICI CURIAE!

Amicus curiae Christian Legal Society is a nonprofit

interdenominational association of over 4,000 Christian

attorneys, law students, judges, and law professors.

Amicus curiae National Association of Evangelicals is a

nonprofit association of Christian denominations,

churches, organizations, institutions and individuals that

includes more than 50,000 churches from 74 denomina-

tions and serves a constituency of approximately 20 mil-

lion people.

Both amici have worked for over two decades to

protect citizens’ right to religious belief and practice. The

protection of the right of parents to direct the upbringing

of their children without State interference - the core

issue in this case — is a vital component of the protection

of individual liberty (including, but not limited to, reli-

gious liberty) for all citizens.

A more detailed statement of interest of the amici is

set forth in the Appendix to this brief. Letters from the

parties consenting to the filing of this brief have been

filed with the Clerk of the Court pursuant to Rule 37.3.

? Counsel for a party did not author this brief, in whole or

in part. No one, other than the amici curiae, their members, or

their counsel, made a monetary contribution to the preparation

or submission of the brief. See S. Ct. Rule 37.6. Amicus Christian

Legal Society received a grant from the Alliance Defense Fund

to cover its expenses in producing the brief. The Alliance

Defense Fund is a 501(c)(3) organization headquartered at 7819

East Greenway Road, Suite 8, Scottsdale, Arizona 85260. The

Alliance Defense Fund exercised no control over the content of

the brief.

STATEMENT OF THE CASE

The most important fact about this case is that it is

not about “grandparents’ rights”? or about the constitu-

tionality of grandparent-visitation statutes in general.

Instead, this case is about one State’s extraordinarily

broad third-party visitation laws, laws which, as inter-

preted -by that State’s highest court, seriously undermine

family autonomy and parents’ fundamental rights. Thus,

the policy and prudential arguments that the Petitioners

and their amici have advanced in favor of grandparent-

visitation statutes (see Pet. Br. 8-18), do nothing to call into

question the correctness of the decision below or to reha-

bilitate the unconstitutionally invasive nature of the spe-

cific statutes at issue.

Washington law purports to permit “any person” -

not just grandparents or other family members — to ask a

court “at any time” for the right to visit - and therefore to

influence — someone else’s child. Visitation rights may be

granted to “any person” — presumably over the child’s

parents’ objection — so long as the court believes visita-

tion is in the “best interests” of the child. No prior

finding of parental neglect, abuse, or incompetence, nor

any showing of harm to the child, is required. The person

seeking visitation need not establish any substantial rela-

tionship with the child. The court is not required to

consider the parents’ reasons for their decision to limit or

2 The Petitioners now concede as much. See, e.g., Brief for

Petitioners (hereinafter “Pet. Br.”), at 18 (“The petitioners are

not advancing an argument that grandparents have a

constitutional right to visit their grandchildren.”).

deny access to their children.? In short, any person simply

may ask a court to second-guess parents’ decisions - and

thereby impose on parents the cost of defending those

decisions — about what influences are in the “best inter-

ests” of their children. See Revised Code of Washington

§ 26.10.160(3), § 26.09.240 (amended 1996); see also Pet.

App. 5a-12a, 21a-22a (describing and analyzing the stat-

utes).

The reach and intrusiveness of these statutes is so

striking that the Washington Court of Appeals believed

the laws could not possibly mean what they say. See In re

Visitation of Troxel, 87 Wash. App. 131, 940 P.2d 698 (Wash.

Ct. App. 1997). After observing that the statutes purport

to confer on “any person” the right to petition for visita-

tion, the Court of Appeals insisted that:

A literal reading of this statute could lead to the

sort of absurd result that our canons of statutory

construction forbid. Does “any person” have

standing to petition “at any time” for visitation

with a child? For example, could a member of

the state Legislature who has displeased a con-

stituent find herself faced with the considerable

expenditure of time, money, and emotional

energy to oppose a wholly frivolous petition by

that constituent? Should this occur without any

showing that the parent was unfit or that the

family was unstable or that the child was other-

wise facing any threat to its well-being? Our

3 Washington law does provide courts with a list of factors

they “may” consider in determining whether third-party

visitation is in the child’s “best interests,” but these factors do

not, of course, preclude “any person” from seeking visitation

and imposing the burdens of litigation on parents. See Appendix

to the Petition for a Writ of Certiorari (hereinafter “Pet. App.”),

at 27a (reprinting RCW § 26.09.240 (as amended 1996)).

Legislature could not have intended such an

absurd and potentially pernicious result from so

broad a reading of the statute.

Pet. App. 58a. The Petitioners, in similar fashion, attempt

to assure this Court that the Washington statutes do not

really mean what they say* and wholly ignore their atypi-

cal overbreadth.

But these statutes - “absurd” or not — do mean what

they say, the Supreme Court of Washington held, after

reviewing their text and history in detail. Pet. App.

6a-13a. That court insisted that “[w]hile the statute as

written may have potentially troubling consequences for

stable families, this does not justify [the] Court of

Appeals rewriting of the statute” (Pet. App. 12a), and that

“we will not read qualifications into the statute which are

not there.” Pet. App. 11a.

This Court should likewise reject the Petitioners’

efforts to frame this case as a referendum on the “consti-

tutionality of grandparent visitation statutes” (see Petition

for a Writ of Certiorari (hereinafter “Pet.”), at 11) and to

distract this Court’s attention from the ambitious reach of

the laws actually at issue. As it happens, the Petitioners

in this case are grandparents.> We are aware of no reason

* See Pet. Br. 10 (“In some instances, . . . the states simply

provided that any person could make such a request.

Legislation framed in this manner was not intended to

authorize visitation suits by total strangers; so far as we have

been able to ascertain, total strangers have not been awarded, or

even requested, visitation under these laws.”)

5 Jenifer and Gary Troxel’s son Brad was Natalie and

Isabelle’s father. He committed suicide in 1993. The children’s

mother — respondent Tommie Granville - decided to limit the

Troxels’ access to the children soon after Brad’s death. Ms.

to question Jenifer and Gary Troxel’s love for their grand-

children, Natalie and Isabelle, nor does the decision

below contain any facts suggesting that contact with the

Troxels would or would not be detrimental to their

grandchildren. But that is not the point. The children’s

mother decided not to permit such conduct and “as

between [parents and judges], the parents should be the

ones to choose whether to expose their children to certain

people or ideas.” Pet. App. 22a.

The Supreme Court of Washington’s decision that

these statutes are unconstitutional “as written” (Pet. App.

la) rests on three basic points - all of which are conso-

nant with, and indeed are compelled by, this Court’s

precedents. First, parents have a fundamental right under

the Fourteenth Amendment to “autonomy in child rear-

ing decisions.” Pet. App. 12a. Second, state interference

with parents’ rights is forbidden unless the “state can

show that it has a compelling interest [in interfering] and

such interference is narrowly drawn to meet only the

compelling state interest involved.” Pet. App. 15a. Third,

“[s]hort of preventing harm to the child, the standard of

‘best interest of the child’ is insufficient to serve as a

compelling state interest overruling a parent’s fundamen-

tal rights.” Pet. App. 21a-22a.

Alleging conflicts with decisions interpreting other

States’ far more narrow and carefully drafted “grand-

parents’ rights” statutes (Pet. 6-11), the Petitioners

invited this Court to engage in social engineering, asking

it to recognize that “it may be time to pay more attention

to our children’s state of mind than a parent's rights” and

Granville later married Mr. Kelly Wynn, who adopted the

children in February 1996. Pet. App. 2a-3a.

stating that the “issue before this Court is whether there

is also an equal penumbra of responsibilities by parents

to sustain loving and nurturing relationships between

their children and third parties.” Id. at 15. The Petitioners

claim that the court below - a “conservative judiciary” —

mistakenly “idealized the ‘basic family unit’ ” which,

they opine, is a “recent phenomenon of modern civiliza-

tion.” Id. at 11-12. They state, “there has been a dramatic

erosion of [this] ‘stable basic family unit,’” and ask,

“[a]re the courts and our society equipped to deal with

modern life using the traditional view of the family?” Id.

at 12-13. This Court granted certiorari. Troxel v. Granville,

__ US. __, 120 S.Ct. 11 (Sept. 28, 1999) (No. 99-138).

SUMMARY OF THE ARGUMENT

Our argument that the decision below should be

affirmed rests on a few basic points, none of which neces-

sarily prejudices the case for a grandparent-visitation

statute that is narrowly tailored to serve a compelling state

interest.” First, the statutes at issue are not grandparent-

fact that family structure has changed (although the “basic

stable family unit” that the Petitioners deride has proved to be

an inspiringly durable center-point around which these changes

occur) with the entirely different point that, however organized,

the family in general and parents in particular have been

protected against unjustified state intrusion by the Constitution.

The fact that families take many forms tells us nothing about

whether the family should be subject to increased government

oversight or third-party second-guessing.

7 See, e.g., Brief of the Amicus Curiae American Academy of

Matrimonial Lawyers, at 7-9 (“[W]e urge this Court to declare

visitation statutes. Even if they were, the Petitioners and

their amici have not pointed to any other visitation stat-

utes that share the objectionable and unconstitutional

features of Washington’s particular statutes.®

Second, the Fourteenth Amendment’s Due Process

Clause — narrowly construed in light of history and tradi-

tion — protects the integrity and autonomy of the family

from intrusive intervention by the State at third parties’

request. Any State’s law that, on its face, requires parents,

at “any person’s” request, to submit their decisions about

who should have contact with and influence upon their

children for judicial approval tramples on the “liberty”

protected by the Fourteenth Amendment and is therefore,

on its face, unconstitutional.

Third, because the Washington statutes infringe “fun-

damental rights” protected by the Due Process Clause,

they must survive strict scrutiny. We urge this Court to

once again? reject the “sliding scale” mode of substantive-

due-process analysis proposed by the Petitioners (see Pet.

Br. 22-24) and also to repudiate the suggestion that par-

ents’ rights to control and direct the upbringing of their

children are somehow “second class” rights, rights less

the Washington third-party access statute unconstitutionally

overbroad but preserve the question for a future case whether a

carefully drawn third-party access statute would be

constitutional.”).

8 It is, therefore, not true that “affirmance of the decision

below would invalidate virtually all grandparent visitation

statutes nationwide.” Brief Amicus Curiae of AARP and

Generations United In Support of Petitioners, at 17.

9 See, e.g., Washington v. Glucksberg, 521 U.S. 702, 720-722

(1997) (reaffirming traditional mode of due-process analysis

and rejecting sliding-scale approach).

worthy of enthusiastic protection by the federal courts

than other - perhaps more fashionable - freedoms, or

rights that must ride piggy-back on some other constitu-

tional claim in order to be vindicated. See generally, Pet.

Br. 22-35.

Finally, we suggest an additional, complementary

constitutional basis for affirming the decision below. In

our view, not only do the broad statutes at issue uncon-

stitutionally intrude on parents’ rights and family auton-

omy, they unconstitutionally limit, censor, and co-opt the

values that families communicate through their expres-

sive association. Of course, the family is different in kind,

and not merely in degree, from other voluntary associa-

tions. Still, parents communicate their values, to their

children and to the world, through their child-rearing

decisions —- indeed, for many parents, this message is

their most lasting and important statement - and this

“speech,” this “expressive association,” is protected by

the First Amendment.

+ * *

This is no time to disregard or downgrade well estab-

lished constitutional rights, nor is it the time to wade into

the various controversies about the changing structure of

the family. We respectfully urge the Court to affirm the

decision below, to endorse its reasoning, and to reject the

Petitioners’ invitation to bring “up to date” fundamental

constitutional rights through the statist imposition of new

and sweeping “penumbra[l]” responsibilities. See Pet.

15-18.

ARGUMENT

Parents Enjoy the Fundamental Right to Direct Their

Children’s Education and Upbringing, and to Decide

Who and What Will Influence and Shape Their Chil-

dren During Their Formative Years, Without Judicial

Approval or Second-Guessing By the State.

It is a fundamental principle of constitutional law that,

as the court below concluded, “[i]t is not within the

province of the state to make significant decisions con-

cerning the custody of children merely because it could

make a ‘better’ decision.” Pet. App. 22a. The statist impli-

cations of the contrary view are staggeringly dangerous

to the autonomy of the family and to democratic values.

Accord, In re Visitation of Troxel, supra (Pet. App. 58a). The

Petitioners argue that after centuries at a central place in

Anglo-American legal tradition, the right of non-abusive

parents to raise their own children as they see fit should

yield to ad hoc judicial intervention at third parties’

request. We disagree.

A. Our Nation’s History and Tradition, Not the Policy

Preferences of Judges or Popular Majorities and

Not Novel Sociological Theories, Inform and Con-

strain This Court’s Interpretation and Exposition of

the Due Process Clause.

It is now settled that “[t]he Due Process Clause guar-

antees more than fair process, and the ‘liberty’ it protects

includes more than the absence of physical restraint. . . .

The Clause also provides heightened protection against

government interference with certain fundamental rights

and liberty interests[.]” Washington v. Glucksberg, 521 U.S.

702, 719-720 (1997); see also Michael H. v. Gerald D., 491

U.S. 110, 121 (1989) (“It is an established part of our

constitutional jurisprudence that the term ‘liberty’ in the

Due Process Clause extends beyond freedom from physi-

cal restraint.”). These “fundamental” rights are limited to

those that are deeply rooted and firmly anchored in our

Nation’s history, tradition, and practice. Glucksberg, 521

U.S. at 710; see also Snyder v. Massachusetts, 291 U.S. 97,

105 (1934) (The Due Process Clause protects only those

rights that are “so rooted in the traditions and conscience

of our people as to be ranked as fundamental.”); Moore v.

City of East Cleveland, Ohio, 431 U.S. 494, 503 (1977) (plu-

rality op.) (The fundamental rights protected by the Four-

teenth Amendment are those that are “deeply rooted in

this Nation’s history and tradition.”).

This Court has often warned, however, of the danger

that protecting fundamental rights not specifically men-

tioned in the Constitution might tempt judges to substi-

tute their own subjective commitments or the prevailing

preferences of vocal interest groups for clearly estab-

lished traditions. See, e.g., Collins v. Harker Heights, 503

U.S. 115, 125 (1992) (The Court “has always been reluc-

tant to expand the concept of substantive due process

because guideposts for responsible decisionmaking in

this unchartered area are scarce and open-ended.”).

Given this danger, “[o]ur Nation’s history, legal tradi-

tions, and practices . . . provide the crucial ‘guideposts

for responsible decisionmaking,’ [Collins, 503 U.S. at 125],

that direct and restrain [the Court’s] exposition of the

Due Process Clause.” Glucksberg, 521 U.S. at 721.

The Supreme Court of Washington’s decision was

consistent with, and is an instructive example of, the

careful analysis that this Court requires in “substantive

due process” cases. See Pet. App. 12a-15a. It did not

create any novel or previously unappreciated fundamen-

tal constitutional rights, nor did it purport to “update”

our society’s morality or family policies. Similarly, we do

not ask this Court to expand the boundaries of Four-

teenth Amendment “liberty” or to evaluate, endorse, or

reject societal and demographic trends. We are mindful of

this Court’s warning that “(t]he doctrine of judicial self-

restraint requires [this Court] to exercise the utmost care

whenever [it is] asked to break new ground in this field.”

Collins, 503 U.S. at 125. We believe both that this Court

should continue to adhere to the restrained mode of

analysis outlined in Glucksberg, supra, and that this Court

should affirm the decision and reasoning of the decision

below, specifically, the controlling principle that the Four-

teenth Amendment protects parents’ fundamental right

to control and direct the upbringing of their children.

B. This Court Has Held, and Should Reaffirm, That

Parents Enjoy the Fundamental, Constitutionally

Protected Right to Direct the Upbringing and Edu-

cation of Their Children.

The family is the building block of civil society and

the seed-bed of good citizenship. Our constitutional tra-

dition has therefore respected its autonomy and integrity.

See Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (“It is

cardinal with [this Court] that the custody, care and nur-

ture of the child reside first in the parents, whose primary

function and freedom include preparation for obligations

the state can neither supply nor hinder. . . . And it is in

recognition of this that . . . decisions have respected the

private realm of family life which the state cannot

enter.”). A long line of this Court’s decisions confirm that

parents’ rights sit at the very heart of the “liberty” pro-

tected by the Fourteenth Amendment.’® As this Court

observed in Parham v. ].R., 442 U.S. 584, 602 (1979) (cita-

tions omitted):

Our jurisprudence historically has reflected

Western civilization concepts of the family as a

unit with broad parental authority over minor

children. Our cases have consistently followed

that course; our constitutional system long ago

rejected any notion that a child is “the mere

creature of the State” and, on the contrary,

asserted that parents generally “have the right,

coupled with the high duty, to recognize and

prepare [their children] for additional obliga-

tions”. . . . The law’s concept of the family rests

on a presumption that parents possess what a

child lacks in maturity, experience, and capacity

for judgment required for making life’s difficult

decisions. More important, historically it has

recognized that natural bonds of affection lead

parents to act in the best interests of their chil-

dren. 1 W. Biacxstone, Commentaries 447; 2 J.

Kent, COMMENTARIES ON AMERICAN Law 190.

These rights are not recent innovations, but instead

reflect protections deeply rooted in our history and tradi-

tion. As the Court stated in Wisconsin v. Yoder, 406 U.S.

205, 232 (1972):

The history and culture of Western civilization

reflect a strong tradition of parental concern for

the nurture and upbringing of children. This

10 The Petitioners’ observation that the Supreme Court of

Washington erred because “[t}here is no well established legal

tradition of refusing such visitation” (Pet. Br. 7) reverses the

burden. There is a well established tradition of leaving the

decisions about visitation and other child-rearing matters to

parents.

ee _ ee

primary role of the parents in the upbringing of

their children is now established beyond debate

as an enduring American tradition.

Parents’ rights and family autonomy do not depend on or

derive from positive law, but rather are “intrinsic human

rights, as they have been understood in this Nation's

history and tradition,” Smith v. Org. of Foster Families for

Equality and Reform, 431 U.S. 816, 845 (1977). This Court

has protected the “sanctity of the family precisely because

the institution of the family is deeply rooted in this

Nation’s history and tradition.” Moore, 431 U.S. at 503

(emphasis added). As one Court of Appeals stated

recently:

To say that the institution of the family is deeply

rooted in this Nation’s history and tradi-

tion . . . as the Supreme Court often has said

. . » borders on understatement. The unitary

family is the foundation of society. Through the

intimate relationships of the family, our children

are nurtured, tutored in the values and beliefs of

society, and prepared for life. . . . Through these

relationships, our children — indeed, we, as par-

ents — are strengthened, fulfilled and sustained.

The bonds between parent and child are, in a

word, sacrosanct, and the relationship between

parent and child inviolable except for the most

compelling reasons.

Jordan v. Jackson, 15 F.3d 333, 342 (4th Cir. 1994) (Virginia’s

emergency-removal statute did not violate parents’ due-

process rights) (citations and quotation marks omitted).

Contrary to the Petitioners’ suggestion, parents’

rights are not anachronistic relics, nor is the protection of

family autonomy somehow “conservative”™ or back-

ward-looking. That the parents play the primary role in

childrearing and educating is true not just as a matter of

Anglo-American tradition and constitutional law. There is

universal recognition of the fact that “parents seem natu-

rally inclined to love and care for their children.” Stephen

G. Gilles, On Educating Children: A Parentalist Manifesto,

63 Univ. Chi. L. Rev. 937, 953 (1996);!2 see also Parham, 442

U.S. at 602 (The concept of the “family as a unit with

broad parental authority over minor children” is rooted

in the recognition that the “natural bonds of affection

lead parents to act in the best interests of their children”);

Smith, 431 U.S. at 844 (right to family integrity reflects

“the emotional attachments that derive from the intimacy

of daily association”). Moreover, it simply cannot be dis-

puted that, as a general matter, “parents are more likely

to pursue the[ir] child’s best interests as they define it

than is the state to pursue the child’s best interest as the

1! See Pet. 11-12, 13 (“A conservative judiciary has defined

the traditional concept of a family. . . . The conservative judicial

view of the ‘basic stable family unit’ . . . may even be

unintentionally racial or socioeconomically based.”). Relatedly,

it is worth noting that the Petitioners appear to have abandoned

their earlier suggestion that the place of the “basic stable family

unit” in our legal and social traditions is somehow racist. See

Petition for Certiorari, at 13. Although the charge is untenable,

it should be said that, in fact, poor families and ethnic minorities

would seem particularly vulnerable to the intrusive meddling

and governmental second-guessing, the unarticulated biases of

upper-middle-class decisionmakers, and the burdensome costs

of litigation that are authorized and invited by the statutes at

issue.

2 Prof. Gilles cites John Locke and “countless other

observers” for this unremarkable yet fundamental premise. See

Gilles, 63 U. Chi. L. Rev. at 953 n.59.

state defines it.” Gilles, supra, at 940. Here, then, there is a

happy consonance between universally observed facts

and constitutional law.

Of course, no constitutional right - not even a “fun-

damental” liberty right — is absolute. See, e.g., Prince, 321

U.S. at 166 (“[T]he family itself is not beyond regulation

in the public interest. . . . [The] rights of parenthood are

[not] beyond limitation.”). The Petitioners make much of

this point, but they are tilting windmills. There are, obvi-

ously, situations where the States may and should inter-

vene in family life to protect children and promote the

common good. Parents, like everyone else, are subject to

the host of general laws that States may enact pursuant to

their police powers. See Stanley v. Illinois, 405 U.S. 645,

649 (1972) (“The State’s right - indeed, duty — to protect

minor children through a judicial determination of their

interests in a neglect proceeding is not challenged here.”).

Vindication of the right at issue here need not invite -

notwithstanding the Petitioners’ “parade of horribles”

(Pet. Br. 28-30) — an avalanche of nullification of reason-

able health and welfare legislation.

While parents’ rights are not absolute, it does not

follow that they are meaningless, just as the fact that

some parents’ misuse their authority and neglect their

responsibilities does not negate the existence and impor-

tance of rights or justify their abrogation. As this Court

emphasized in Parham:

That some parents may at times be acting

against the interests of their children . . . creates

a basis for caution, but is hardly a reason to

discard wholesale those pages of human experi-

ence that teach that parents generally do act in

the child’s best interests. . . . The statist notion

that governmental power should supersede par-

ental authority in all cases because some parents

abuse and neglect children is repugnant to

American tradition.

442 U.S. at 602-603 (citations and quotation marks omit-

ted).

In short, the Washington statutes at issue are uncon-

stitutional on their face not merely because they regulate

parents’ decisionmaking, but because they are a blunder-

buss assault on family integrity and are not crafted with

the precision required of laws that interfere with or

infringe upon fundamental “liberty” rights.

C. Washington’s Sweeping Third-Party Visitation Stat-

utes Infringe Parents’ Rights and Must Therefore

Be Put to Strict Scrutiny.

Laws that infringe or intrude upon’? fundamental

liberties must survive strict scrutiny. Glucksberg, 521 U.S.

at 721 (“[T]he Fourteenth Amendment ‘forbids the gov-

ernment to infringe . . . “fundamental” liberty interests at

all, no matter what process is provided, unless the

infringement is narrowly tailored to serve a compelling

state interest.’ ” (quoting Reno v. Flores, 507 U.S. 292, 302

13 The Petitioners’ discussion of cases where this Court did

not apply strict scrutiny because the law in question did not

“ ‘directly and substantially’ ” interfere with or “ ‘heavily

burden’ the fundamental rights of the family involved” (Pet. Br.

23-24) is inapposite because, as we discuss in more detail below,

the Washington statutes authorize “any person” “at any time”

to require a parent to litigate and justify his or her decisions

limiting or denying visitation. The intrusive impact of the

Washington laws is more than sufficient to trigger the strict

scrutiny generally required in fundamental-rights cases.

(1993)). The court below was correct in proceeding from

this premise. See Pet. App. 15a.

Still, the Petitioners and some of their amici’ insist

that strict and searching review of these intrusive stat-

utes’ effect on parents’ rights is not required.'5 They in

effect ask this Court to “downgrade” parents’ rights -

rights which have, again, been repeatedly recognized by

this Court as “fundamental” — to a lesser breed of right, a

“poor relation”’® which must ride piggy-back on some

other right in order to enjoy meaningful constitutional

protection. See, e.g., Brief of the National Conference of

State Legislatures, et al., as Amici Curiae in Support of

Petitioners, at 8-12 (“Although the Court has recognized a

parental liberty interest in bringing up children, the scope

14 Incredibly, some of the amici claim, as did the Petitioners

below (see Pet. App. 17a), that the Washington third-party-

visitation laws actually pass strict scrutiny.

15 It is not clear whether the Petitioners and their amici

believe this Court should employ a kind of balancing test or

“undue burden” test in this case (see Pet. Br. 22-23); a hybrid-

rights analysis, which would require parents’ rights to be

asserted in conjunction with other, supposedly more important,

rights (see Pet. Br. 24-27); or the mere rational-basis review that

is appropriate for social and economic legislation. See Pet. Br.

30-32; see also Brief of the National Conference of State

Legislatures, et al., as Amici Curiae in Support cf Petitioners, at

16-18; Brief Amici Curiae of AARP and Generations United in

Support of Petitioners, at 28-29 (urging reversal because “the

protection of the welfare of children through grandparent

visitation statutes is a rational means of addressing societal

problems”).

16 Dolan v. City of Tigard, 512 U.S. 374, 392 (1994) (“We see

no reason why the Takings Clause of the Fifth Amendment, as

much a part of the Bill of Rights as the First Amendment or

Fourth Amendment, should be relegated to the status of a poor

relation in these comparable circumstances.” ).

of protection granted that interest depends upon the

degree to which the State is impinging on some other

constitutional right.”). On this view, Washington’s lews

need only have a “reasonable relation to some purpose

within the competency of the State.” Id., at 12 (citations

and internal quotation marks omitted).

Alarmingly, many courts have in recent years

embraced the “poor relation” theory of parents’ rights

and have de-commissioned them as “fundamental”

rights.'7 In denigrating the constitutional pedigree of the

17 See, e.g., Immediato v. Rye Neck Sch. Dist., 73 F.3d 454, 462

(2d Cir.), cert. denied, 519 U.S. 813 (1996) (“[W]here, as here,

parents seek for secular reasons to exempt their child from an

educational requirement and the basis is a claimed right to

direct the ‘upbringing’ of their child, rational basis review

applies.”); Ohio Ass’n of Indep. Sch. v. Goff, 92 F.3d 419, 423 (6th

Cir. 1996), cert. denied, 520 U.S. 1104 (1997) (stating that “rational

basis review, not strict scrutiny,” governs “wholly secular

limitations on private school education”); Herndon v. Chapel

Hill-Carrboro City Bd. Of Educ., 89 F.3d 174, 179 (4th Cir. 1996),

cert. denied, 519 U.S. 1111 (1997) (concluding that because

parents’ “interest is not religious, . . . we must reject their

position if the [challenged regulation] bear[s] some rational

relationship to legitimate state purposes”); Brown v. Hot, Sexy

and Safer Prod., Inc., 68 F.3d 525, 533 (1st Cir. 1995), cert. denied,

516 U.S. 1159 (1996) (“We need not decide here whether the

right to rear one’s children is fundamental[.]”); Clonlara, Inc. v.

Runkel, 722 F. Supp. 1442, 1456 (E.D. Mich. 1989) (rights

recognized in Pierce and Meyer are not fundamental and do not

require strict scrutiny); Hanson v. Cushman, 490 F. Supp. 109,

113-114 (W.D. Mich. 1980) (same); but see Peterson v. Minidoka

City Sch. Dist., 118 F.3d 1351, 1357-58 (9th Cir. 1997) (opinion of

Noonan, J.) (applying heightened scrutiny to Pierce claim),

amended, 132 F.3d 1258 (1997); In re Care and Protection of Charles,

399 Mass. 324, 334, 504 N.E.2d 592, 598 (1987) (Pierce makes it

“clear that the liberty interests protected by the Fourteenth

Amendment extend to activities involving child rearing and

oo =< os

“liberty” rights vindicated below, however, the Peti-

tioners and their amici fly in the face of this Court’s recent

decision in Glucksberg, as well as the line of cases on

which Glucksberg rests. See Glucksberg, 521 U.S. at 720 (“In

a long line of cases, we have held that, in addition to the

specific freedoms protected by the Bill of Rights, the

‘liberty’ specially protected by the Due Process Clause

includes the right[] . . . to direct the education and

upbringing of one’s children, Meyer v. Nebraska, 262 U.S.

390 (1923); Pierce v. Society of Sisters, 268 U.S. 510

(1925)[.]”).

This Court has rejected the notion of family integrity

as a second-class right. Instead, the right to “raise one’s

children [has] been deemed ‘essential,’ . . . [one of the]

‘basic civil rights of man,’ . . . and [a right] ‘far more

precious than property rights|[,].’” Stanley v. Illinois, 405

education” and that parents “possess a basic right in directing

the education of their children”); State v. Whisner, 47 Ohio St. 2d

181, 351 N.E.2d 750, 769 (1976) (“[T]he right of a parent to direct

the education, religious or secular, of his or her children [is a]

fundamental right guaranteed by the due process clause of the

Fourteenth Amendment.”); Henne v. Wright, 904 F.2d 1208, 1213

(8th Cir. 1990), cert. denied, 498 U.S. 1032 (1991) (Pierce and Meyer

rights are “fundamental,” but not implicated in case involving

state statute that restricted surnames); Schleifer v. City of

Charlottesville, 159 F.3d 843, 852 (4th Cir. 1998), cert. denied, 119

S.Ct. 1252 (1999) (“We are mindful that the Supreme Court has

suggested in other contexts that parents may possess a

fundamental right against undue, adverse interference by the

state.”); Jordan v. Jackson, 15 F.3d 333, 342-343 (4th Cir. 1994)

(observing that “to say that the institution of the family is rooted

in this Nation’s history and tradition . . . borders on

understatement[,]” that “the relationship between parent and

child [is] inviolable except for the most compelling reasons,”

and that Pierce and Meyer rights are “essential” and

“fundamental”).

U.S. at 651 (internal citations omitted), and has been

recognized as a “fundamental liberty interest protected

by the Fourteenth Amendment.” Santosky v. Kramer, 455

U.S. 745, 753 (1982); see also Meyer, 262 U.S. at 401 (“That

the state may do much, go very far, indeed, in order to

improve the quality of its citizens, physically, mentally,

and morally, is clear; but the individual has certain funda-

mental rights which must be respected.”) (emphasis added).

This is not the language of mere rational-basis review

D. Washington’s Expansive Third-Party Visitation

Statutes Cannot Survive Strict Scrutiny.

Whatever important public interests might theo-

retically be served by other States’ grandparent-visitation

laws, the particular laws at issue here cannot fairly be

described as “narrowly tailored to serve [a] compelling

state interest,” Reno, 507 U.S. at 302, and therefore cannot

survive strict scrutiny. The court below was correct to

reject the breathtakingly intrusive argument that “a judi-

cially determined finding that visitation is in the best

interests of the child is a sufficiently compelling justifica-

tion to override a parent’s opposition, regardless of the

fact that the parent’s fitness is not challenged or that

there has been no showing of harm or threatened harm to

the child.” Pet. App. 17a. Instead, “the state may interfere

only ‘if it appears that parental decisions will jeopardize

the health or safety of the child, or have a potential for

significant social burdens.’ ” Pet. App. 17a (quoting Yoder,

406 U.S. at 234). As the court below emphasized, “(t]he

statutes at issue do not contemplate any . . . harm or

potential harm to the child which must be prevented by

third party visitation rights” (Pet. 20a); they “lack other

safeguards to prevent stable families from defending in

court against frivolous petitions for visitation” (Pet. App.

22a); they “do not require the petitioner to establish that

he or she has a substantial relationship with the child”

(ibid.); and they “do not require the court to take into

consideration such factors as the parents’ reasons for

restricting visitation[.]” Ibid.

We emphasize that the Washington statutes fail strict

scrutiny not simply because they employ a “best inter-

ests” standard and not simply because they authorize

third-party visitation to which the parents object. The

problem here is that no threshold finding is required before

competent, fit, non-abusive parents are required to take

on the burdens, costs, and insult of litigating and defend-

ing in court their child-rearing and visitation decisions at

“any time” and at the behest of “any person” who dis-

agrees with them.

E. The Washington Statutes Are Unconstitutional on

Their Face, and This Court Should Resist Peti-

tioners’ Efforts to Distract Its Attention from the

Intrusiveness of the Washington Statutes to the

Standard of Review.

In their Petition for Certiorari, the Petitioners insis-

ted that this Court’s review was necessary to “address| |

the welfare of our children and preserv(e] the family in

the future” (Pet. 11); to reject the “conservative” view of

the “stable family unit” (id. at 13); to recognize a new set

of “penumbra[l]” constitutional “responsibilities” of par-

ents to “sustain loving and nurturing relationships

between their children and third parties” (notwithstand-

ing the parents’ different view about the “nurturing”

character of those relationships) (id. at 15); and to

“replace[ ]” “parental authority” with “parental respon-

sibility in recognition that children’s views and wishes

should be taken into account.” Id. at 17.

The Petitioners now purport to advocate a more nar-

row and measured course. They take pains to assure the

Court that they are not asking for the creation of any new

or novel rights (Pet. Br. 7, 18) (“We do not contend that

grandparents have a constitutional right to visitation

orders.”) and they concede that granting third-party visi-

tation over parents’ objections could violate parents’

rights (id. at 33, 39). The Petitioners’ new, “far less cate-

gorical” approach (id. at 20) is to observe that the court

below “did not rely on, and respondent did not there

advance, any circumstance-specific constitutional objec-

tion to the application of the [statute] to this particular

case” and that “[t]he court below properly dealt with this

case as presenting only a facial challenge to the constitu-

tionality of the Washington statute.” (Id. at 19). However,

the Petitioners assert, “[a]bsent a showing of the general

invalidity required by [United States v. Salerno, 481 U.S.

739 (1987)] or [Planned Parenthood v. Casey, 505 U.S. 833

(1992)], . . . there would be no occasion to consider the

constitutionality of [the statute] in circumstances other

than those of the instant case.” Pet. Br. 21.

Although we welcome the Petitioners’ newfound

commitment to judicial restraint, we reject their argument

and the purported modesty of their positions. The Wash-

ington statutes at issue are unconstitutional on their face — or,

as the court below put it, “as written” (Pet. App. la) -

and not simply “as applied” to this or any other particu-

lar case. The Respondent can establish, and did establish

to the satisfaction of the court below, that almost all

applications of the Washington law are unconstitutional.

meme ee ———E _

The particular visitation order at issue in this case, as

well as every application of the Washington third-party

visitation laws, is unconstitutional because the statutes

permit, in every case, “any person” to drag a parent into

court “at any time” and for any reason to justify their

decisions about third-party visitation to a court. That is,

the Washington statute — in every case — fails to provide

the constitutionally required respect and protection for

competent, non-abusive parents’ decisions about third-

party visitation. It does not matter that some of the visita-

tion orders issued under the Washington laws might also —

have issued under a constitutional standard or statute. It

is the fact that, on its face and in every case, the Washington

laws subject competent, fit, non-abusive parents’ deci-

sions to judicial second-guessing (outside the context of

custody or like proceedings) on the whim of “any per-

son,” that dooms these particular, extraordinarily broad,

visitation statutes.

» * *

This Court has held - and we believe it should re-

affirm — that parents’ rights and family autonomy are

“fundamental” aspects of the “liberty” protected by the

Due Process Clause and therefore that “strict scrutiny”

must be directed toward any State’s law that infringes on

those rights. These basic principles are perfectly consis-

tent with the responsible, measured use of the States’

police and parens patriae powers to protect children from

harm, abuse, and neglect, but they preclude the kind of

unjustified and intrusive second-guessing of parents’

decisions about third-parties’ contact with and influence

upon their children that the Washington visitation stat-

utes encourage.

Il.

Parents’ Right to Decide Who and What Are Appropri-

ate Influences on Their Children’s Development, Educa-

tion, and Character Is Expressive Activity Protected by

the First Amendment.

An alternate, but closely related, constitutional basis

for affirming the judgment below is that the Washington

statutes curtail parents’ expressive-association rights pro-

tected by the First Amendment.

A. The First Amendment Protects Expressive Associa-

tion from Co-option and Censorship by the State.

In affirming the decision below, this Court should be

guided not only by its substantive-due-process line of

parental-rights cases, but also by its expressive-associa-

tion precedents. It is “beyond debate” that “freedom to

engage in association for the advancement of beliefs and

ideas” is not only part of the “liberty” protected by the

Fourteenth Amendment but is also inextricably linked

with the freedoms of speech and expression guaranteed

by the First Amendment. See, e.g., NAACP v. Alabama ex

rel. Patterson, 357 U.S. 449, 460 (1958).

Just as governmental attempts to control, shape, or

co-opt the content of our expression are subject to strict-

est judicial scrutiny, so too are any state efforts to insinu-

ate itself, its priorities, and its ideas into private

associations and the messages they communicate, both

internally and to the world. See, e.g., Roberts v. United

States Jaycees, 468 U.S. 609, 623 (1984) (“There can be no

clearer example of an intrusion into the internal structure

or affairs of an association than a regulation that forces

the group to accept members it does not desire.”); Demo-

cratic Party of United States v. Wisconsin ex rel. LaFollette,

450 U.S. 107, 122 (1981) (First Amendment rights “neces-

sarily presuppose| | the freedom to identify the people

who constitute the association, and to limit the associa-

tion to those people only.”); Hurley v. Irish-American Gay,

Lesbian & Bisexual Group of Boston, Inc., 515 U.S. 557, 573

(1995) (Upholding “fundamental rule of protection under

the First Amendment, that a speaker has the autonomy to

choose the content of his own message,” which includes

the right to decide “what not to say”).

It is often observed that one of the theoretical bases

for our First Amendment freedoms is their crucial role in

nurturing and creating citizens who are well prepared to

exercise the responsibilities that necessarily attend partic-

ipation in a democratic republic. The same is true of the

various “mediating institutions,” “intermediate associa-

tions,” and “little platoons” of democracy that make up

what political scientists and philosophers call “civil soci-

ety” — the public realm between the person and the state!®

- which is one reason why this Court has taken care to

protect expressive association as well as individual

speech-acts. See Roberts, 468 U.S. at 622 (“According pro-

tection to collective effort on behalf of shared goals is

especially important in preserving political and cultural

diversity and in shieiding dissident expression from sup-

pression by the majority.”); id. at 618-619 (“[CJertain

kinds of personal bonds have played a critical role in the

culture and traditions of the Nation by cultivating and

transmitting shared ideals and beliefs; they thereby foster

18 See generally, e.g., Avexis De Tocquevitte, Democracy IN

America 513-524 (1969 ed.); Perer L. Bercer & RicHarp JOHN

Neunaus, To Empower Peorte: THe Rove of MepiaTING STRUCTURES

iN Pusuic Pouicy (1977).

diversity and act as critical buffers between the individ-

ual and the power of the State.”).

B. The First Amendment's Protection of Expressive

Association Extends to Family Autonomy and to

Parents’ Choices about the Education and Upbring-

ing of Their Children.

What this Court has said about the membership and

message of parade organizations and benevolent organi-

zations, and about the importance of mediating institu-

tions, translates easily to the first among all expressive

associations - the family. Of all the mediating, values-

inculcating institutions - which deserve protection both

for their own sake and for the sake of the democratic

values that require them —- surely the family is primary,

both in time and in importance. Just as groups must be

able to control their message to the world, free from

unjustified government intrusion into their membership,

rituals, and commitments, so must the decisions of par-

ents to control and shape their family’s character forma-

tion by determining who and what shall have access to

their child be unfettered by intrusive and unwarranted

judicial “proof-reading.”

As some of this Court's decisions illustrate, the fun-

damental “liberty” rights of parents to direct and control

their children’s upbringing will in many cases comple-

ment religious-freedom rights protected by the Free Exer-

cise Clause. See, e.g., Wisconsin v. Yoder, supra.’? Indeed,

courts and commentators sometimes fail to remember

19 As we discussed above, however, it does not follow from

this complementarity that family integrity must ride in tandem

with First Amendment rights in order to be deemed and

protected as “fundamental.”

that, given the historical context out of which cases like

Meyer and Pierce arose — a context of nativist hostility to

the culture, language, and religion of many immigrants?° -

those cases are reminders of the need to safeguard the

rights of religious and ethnic minorities as well as clear

statements of parents’ rights to build a family culture, to

communicate values to their children and shape their

character, and thereby to express their commitments and

priorities to society.

In a similar way, the Fourteenth Amendment's prom-

ise of “liberty” to parents and autonomy to families mir-

rors the First Amendment's safeguards for expressive

association. This notion that decisions about childrearing,

third-party access, and education - decisions that under

the Fourteenth Amendment, are, except in unusual cases,

entrusted to the realm of family integrity and parental

direction -— are expressive and communicative decisions is

not a novel or expansive idea. See, e.g., Moore, 431 U.S. at

503-504 (“It is through the family that we inculcate and

pass down many of our most cherished values, moral and

cultural.”). Indeed, the Washington Supreme Court itself

observed, in striking down Washington’s laws, that “par-

ents should be the ones to choose whether to expose their

children to certain people or ideas.” Pet. App. 22a.

The law does not tell parents — at least not yet - who

are deciding what school would be best for their child, or

which friends’ influences are likely to be beneficial, or

whether their child is ready for contact football, or for a

PG-13 movie, or for a date with the class president, “do

20 See generally, e.g., JoserpH P. Vrrerrrn, CHoosinc Equatity.

ScuHoot CHorce, THe CONsTITUTION, AND Crivi. Socrety 151-156

(1999).

whatever you choose, so long as it is what I would choose

also,” Pet. App. 21a (citation and internal quotation

marks omitted). This is because, when making these and

other decisions, parents are not merely setting rules, they

are expressing and communicating their values to their

child and also to the community. See, e.g., Smith v. Org. of

Foster Families for Equality and Reform, 431 U.S. 816, 844

(1977) (noting important role of the family in “pro-

mot[ing] a way of life through the instruction of chil-

dren”). By keeping a watchful eye on the forces and

influences that shape a child —- for whose character and

conduct society will rightly hold them accountable - par-

ents are, in a very real sense, speaking to their children

and to the community about what is important. Under

our Constitution, the State may not, in the usual course of

things, co-opt these messages. See, e.g., Farrington v.

Tokushige, 273 U.S. 284, 298 (1927) (noting that the law at

issue would “deprive parents of a fair opportunity to

procure for their children instruction which they think

important and we cannot say is harmful”); compare

Roberts, 468 U.S. at 633 (O’Connor, J., concurring) (“Pro-

tection of the association's right to define its membership

derives from the recognition that the formation of an

expressive association is the creation of a voice, and the

selection of members is the definition of that voice.”).

Washington's third-party visitation laws — which, at the

request of “any person,” subject every parental decision

about third-party access to a judicial determination about

a child’s “best interests” could preclude many low-

income parents — who lack the resources to defend their

decisions in court - from enjoying the fulfillment and

satisfaction such expression brings.

That the content of parents’ message is sometimes

diffuse does not lessen its claim to constitutional protec-

tion. See Hurley, 515 U.S. at 569 (“a narrow, succinctly

articulable message is not a condition of constitutional

protection.”). Nor should it matter that, in the opinion of

outsiders - of the “any person” whom the Washington

statutes empowered to seek a judicial veto of parents’

decisions - the content of the family’s message, of par-

ents’ communication to their children, of parents’ deci-

sions about who and what messages should be permitted

access to their child, could be improved. Hurley, 515 U.S.

at 581 (“Disapproval of a private speaker’s statement

does not legitimize use of the [government’s] power to

compel the speaker to alter the message by including one

more acceptable to others.”). In the words of the court

below, “It is not within the province of the state to make

significant decisions concerning the custody of children

merely because it could make a ‘better’ decision” (Pet.

App. 21la-22a) anymore than the State has the power to

revise the content of a political candidate’s message or a

minister’s sermon because it thinks it could communicate

a “better” message.

CONCLUSION

For all the foregoing reasons, we urge the Court to

affirm the decision and judgment of the court below.

Kimpertee Woop Co sy

Counsel of Record

Grecory S. BayLor

Cart H. Esseck

CHRISTIAN LeGcat Society

Center for Law and

Religious Freedom

4208 Evergreen Lane

Suite 222

Annandale, Virginia 22003

(703) 642-1070 ext. 3500

December 13, 1999

Respectfully submitted,

RicHarp W. GARNETT

Norre Dame Law SCHOOL

Notre Dame, Indiana 46556

(219) 631-6981

MICHAEL Stokes PAULSEN

UNIVERSITY OF MINNESOTA

Law SCHOOL

229 19th Avenue S.

Minneapolis, Minnesota

55455

(612) 625-0018

App. 1

APPENDIX

STATEMENT OF INTEREST OF AMICI

The Christian Legal Society, founded in 1961, is a

nonprofit interdenominational association of over 4,000

Christian attorneys, law students, judges, and law pro-

fessors with chapters in nearly every state and at over 140

accredited law schools. Since 1975, the Society’s legal

advocacy and information division, the Center for Law

and Religious Freedom, has worked for the protection of

religious belief and practice, as well as for the autonomy

from the government of religion and religious organiza-

tions, in the Supreme Court of the United States and in

state and federal courts throughout this nation.

The Center labors to preserve religious liberty in

order that men and women might be free to do God’s

will. Using a network of volunteer attorneys and law

professors, the Center provides accurate information to

the public and political branches concerning the interac-

tion of law and religion. Since 1980, the Center has filed

briefs amicus curiae in defense of many individuals, Chris-

tian and non-Christian, and on behalf of many religious

organizations in virtually every case before the Supreme

Court involving church/state relations.

This nation’s Declaration of Independence “instituted

anew government” by announcing that it was “laying its

foundations on [immutable] principles.” One of these

“self-evident truths” was that all persons are divinely

endowed with rights that no government may abridge

nor any citizen divest. Among such inalienable rights are

those enumerated in - but not conferred by - the First

Amendment, the foremost of which is religious freedom.

App. 2

The right to freely exercise religious conscience inheres in

all persons by virtue of its endowment by the Creator. It

is also a “constitutional right,” but in the sense that it is

recognized in rather than created by the United States

Constitution. Because the source of religious liberty, as

acknowledged in the Declaration, is the Creator, not a

constitutional amendment, statute, or executive order, it

is not merely one of many policy interests to be weighed

against others by any of the several branches of federal,

state, or local government. This nation has no higher duty

than to protect inviolate its full and free enjoyment.

Hence, the unequivocal and non-negotiable prohibition

attached to this our First Freedom is “Congress shall

make no law... . ”

The protection of the right of parents to direct the

upbringing of their children without State interference

absent a compelling state interest — the core issue in this

case — is a vital component of the protection of individual

liberty (including, but not limited to, religious liberty) for

all citizens. The fundamental “liberty” rights of parents to

direct and control their children’s upbringing will in

many cases complement religious-freedom rights pro-

tected by the Free Exercise Clause. See, e.g., Wisconsin v.

Yoder, 406 U.S. 205 (1972). Given the historical context out

of which they arose - a context of nativist hostility to the

culture, language, and religion of many immigrants - the

leading parental rights cases, Meyer and Pierce, are

reminders of the need to safeguard the rights of religious

and ethnic minorities as well as clear statements of par-

ents’ rights to build a family culture, to communicate

values to their children and shape their character, and

thereby to express their commitments and priorities to

ay ew

———

App. 3

society. See Meyer v. Nebraska, 22 U.S. 390 (1923), and

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

The Christian Legal Society’s national membership,

25 years of experience, and professional resources enable

it to speak with authority upon religious liberty matters

before this Court.

The National Association of Evangelicals (NAE) is a

non-profit association of evangelical Christian denomina-

tions, churches, organizations, institutions and individ-

uals that includes more than 50,000 churches from 74

denominations and serves a constituency of approxi-

mately 20 million people. NAE is committed to defending

religious freedom as a precious gift of God and a vital

component of the American heritage.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.