HR 738: Truth Prevails In Georgia Legislature

Rep. Scott Holcomb D-Atlanta

Representative Scott Holcomb from House District 82 shares a story from the Gold Dome

As a member of the Georgia House of Representatives, I have been receiving emails from Georgians concerned about government’s assault on their parental rights, asking me to support House Resolution (HR) 738, which calls for an amendment to the U.S. Constitution to cure this grave problem.

As a parent and legislator, I wanted to make sure that I was well-informed, so I read the resolution, which is available here.

The resolution makes two key points. The first is that the U.S. Supreme Court in Troxel v. Granville (2000) produced six different opinions on the nature and enforceability of parental rights under the U.S. Constitution. As a result, this decision “has created confusion and ambiguity about the fundamental nature of parental rights in the laws and society of the several states.” Oddly, this was the first I’d heard of this crisis.

The second problem is that the United Nations Convention on the Rights of the Child may soon be considered for ratification and it would,[hyperbole follows], end the world as we know it.

Conscientious legislator that I try to be, I read both the Troxel case and the Convention. This is what I found: the Troxel case does not undermine the rights of parents or create confusion and ambiguity. Instead, it is a slam-dunk decision in favor of parental rights. In fact, it held that a parent’s rights were so strong and fundamental that it permitted a mother to limit the visitation of her daughters’ grandparents. The grandparents sought visitation rights with their granddaughters after their son, who was the father of the two girls, committed suicide. In the plurality opinion, Justice O’Connor cites precedent after precedent concerning the fundamental rights of parents. For example, she wrote, “The fundamental interest at issue in this case – the interest of parents in the care, custody, and control of their children – is perhaps the oldest of the fundamental liberty interests recognized by this Court.”

I kept looking for the confusion and ambiguity in the case but never found it. I then turned to the Convention. As background, the entire world, except the U.S. and Somalia, has ratified the Convention. The U.S. played a role in its drafting and is a signatory. After reading the Convention, I again found myself wondering what was so problematic. Among other things, it requires that “State Parties shall respect the responsibilities, rights, and duties of parents.” That makes sense to me.

HR 783 was recently presented before the House Children and Youth Committee. I looked forward to asking about the Troxel case and the Convention because I wanted to learn what I had missed during my reading that is causing so much consternation.

Shortly after the presentation by those in favor of the resolution, two handouts were distributed to Committee members. The first was titled, “Why We Need the Parental Rights Amendment,” and the second was, “The Domestic Threat to Parental Rights.” Rather dire, don’t you think?

I found it difficult to believe what I was reading. The Domestic Threat document states that only Justice Thomas held that parental rights were a fundamental right. But he wrote the following in his decision: “Consequently, I agree with the plurality that this Court’s recognition of a fundamental right of parents to direct the upbringing of their children resolves this case.” Clearly, Justice Thomas was not the only Justice to find that parental rights are fundamental, and he says so himself.

After the presentation, I was able to ask questions. I asked if the supporters could point me to the section in the Troxel decision that creates confusion and ambiguity about the fundamental nature of parental rights. No one could point me to anything.

When I informed the resolution’s supporters that I had read the Troxel case and found it to be a strong affirmation of parental rights, there was no response. I was waiting for them to tell me I was wrong and to show me where to look, but that did not happen. Again, I was left scratching my head (figuratively, of course).

I then asked if they could point me to the problematic articles in the Convention. I had a copy of the Convention with me and stood ready to look at whatever article they directed me to read. Again, the supporters could not name a single problematic article.

Ultimately, the resolution was tabled. Nonetheless, some members of the committee voted against the motion to table and instead wanted to pass the resolution – even though not a single shred of testimony or evidence was presented to support the purported reasons for the resolution! It is worth repeating that the resolution calls for an amendment to the U.S. Constitution.

This is how low some folks will go in the current political environment. Without any basis, the supporters of the bill were eager to get people scared that the federal government and the UN were plotting to take away parental rights. A conservative group which I will not name because it does not deserve any attention pushed this measure.

From my vantage point, I want Georgia to focus on the real challenges before us. Let’s stop wasting time, let’s be truthful, and let’s get to work.

Comments

  1. Raymond L. Hickman says:

    I love when someone (especially Men and Women serving the community in a public office) will take the time to check the facts. Well done Rep. Scott Holcomb D-Atlanta We call this people “leaders” and “representatives” of the people. People don’t want to talk or have a conversation about these things, frankly because they don’t care, until it comes to their doorstep. And, then they have become so ignorant, that they couldn’t hold a healthy conversation if they wanted.

  2. Lynnette Young says:

    Thank you for taking the time to perform your “obligatory” due diligence. What a shame more don’t do the same.

  3. Rep. Holcomb speaks like a politician, including the parts he likes and conveniently omitting the parts he doesn’t. Take the bit about Justice Thomas: The “Domestic Threat” document says, “Only Justice Thomas held that parental rights were a fundamental rights and used the normal test (strict judicial scrutiny) associated with any fundamental right.” It was not asserted that he alone held them as fundamental, but that he alone held them as fundamental and applied the usual test. In Thomas’s own words (also conveniently redacted by Holcomb), “Consequently, I agree with the plurality that this Court’s recognition of a fundamental right of parents to direct the upbringing of their children resolves this case…. The opinions of the plurality, Justice Kennedy, and Justice Souder, recognize such a right, but curiously none of them articulates the appropriate standard of review. I would apply strict scrutiny to infringements of fundamental rights.”
    It is this “curious” omission that has caused confusion and ambiguity, not IN the Troxel case, where Holcomb looked, but “in the laws and society of the several states,” where he did not. Specifically, federal parental rights cases since 2000 have been all over the place in terms of whether or nor parental rights demand strict scrutiny. In the absence of clear guidance, judges apply whatever standard they choose to protect this “fundamental” right.
    Finally Holcomb redacted the text of the UN Convention to make it appear parent friendly. He quoted only part of Article 5 which reads, “States Parties shall respect the responsibilities, rights, and duties of parents [or guardians] to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.” This is not a recognition of parental rights; this is a deputizing of parents as agents to give “appropriate direction” in the practice of the Convention. This statement implies that the rights of parents derive from the Convention itself. And who defines “appropriate?” This article subjugates the role of parents to that of the State. But with the U.S. Supreme Court, I agree that “[t]he statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.” Te only thing worse than a politician who won’t do his homework is one who does his homework, then knowingly twists the very words in front of him to say what he wants the people to hear.

  4. Burroughston Broch says:

    Well done, Michael Ramey!

    Nothing speaks louder to an informed electorate than a politician exposed twisting the speech and writings of others to his political advantage. Let’s hope that his electorate is informed and retires him from office.

  5. Bob Morris says:

    What a surprise – Michael Ramey works for the conservative group pushing this baseless measure. You can go back into your hole now.

    • Burroughston Broch says:

      @ Bob Morris
      Wrong approach, sir.
      Negate his points, not his affiliation. Want to try again?

  6. Scott Holcomb says:

    Michael:
    Given the vituperation in your post, I think it best to simply share the language of the Supreme Court decision and the Convention and let the reader decide. Because, honestly, it takes a great deal of effort to read these documents rationally and conclude that a Constitutional Amendment is called for.

    If either Justice O’Connor or Justice Thomas found that parents did not have a fundamental right to raise their children, I’d be on board with what you are trying to accomplish. But, that’s not what happened. Both found that there is a fundamental right (as I stated).

    The Supreme Court’s decision in Troxel, which was the case cited in the resolution, is, in my opinion, a slam-dunk for parents’ rights, as articulated above. In fact, I don’t know how you could argue otherwise when the decision said that a parent could prevent grandparents from visiting their grandchildren if the parent decides. And that’s what the case held. For those who are interested, the case can be found here: http://www.law.cornell.edu/supct/html/99-138.ZS.html

    To illustrate further, it might be worth copying some of Justice O’Connor’s discussion of parental rights to better develop the point:
    The liberty interest at issue in this case— the interest of
    parents in the care, custody, and control of their children—
    is perhaps the oldest of the fundamental liberty
    interests recognized by this Court. More than 75 years
    ago, in Meyer v. Nebraska, 262 U. S. 390, 399, 401 (1923),
    we held that the “liberty” protected by the Due Process
    Clause includes the right of parents to “establish a home
    and bring up children” and “to control the education of
    their own.” Two years later, in Pierce v. Society of Sisters, 268 U. S. 510, 534–535 (1925), we again held that the
    “liberty of parents and guardians” includes the right “to
    direct the upbringing and education of children under
    their control.” We explained in Pierce that “[t]he 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
    obligations.” Id., at 535. We returned to the subject in
    Prince v. Massachusetts, 321 U. S. 158 (1944), and again
    confirmed that there is a constitutional dimension to the
    right of parents to direct the upbringing of their children.
    “It is cardinal with us that the custody, care and nurture
    of the child reside first in the parents, whose primary
    function and freedom include preparation for obligations
    the state can neither supply nor hinder.” Id., at 166.
    In subsequent cases also, we have recognized the fundamental
    right of parents to make decisions concerning
    the care, custody, and control of their children. See, e.g.,
    Stanley v. Illinois, 405 U. S. 645, 651 (1972) (“It is plain
    that the interest of a parent in the companionship, care,
    custody, and management of his or her children ‘come[s] to
    this Court with a momentum for respect lacking when
    appeal is made to liberties which derive merely from
    shifting economic arrangements’ ” (citation omitted));
    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
    their children. This primary role of the parents in the
    upbringing of their children is now established beyond
    debate as an enduring American tradition”); Quilloin v.
    Walcott, 434 U. S. 246, 255 (1978) (“We have recognized on
    numerous occasions that the relationship between parent
    and child is constitutionally protected”); Parham v. J. R.,
    442 U. S. 584, 602 (1979) (“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”); Santosky v. Kramer, 455 U. S. 745, 753 (1982) (discussing “[t]he
    fundamental liberty interest of natural parents in the
    care, custody, and management of their child”); Glucksberg,
    supra, 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 righ[t] . . . to direct the education
    and upbringing of one’s children” (citing Meyer and
    Pierce)). In light of this extensive precedent, it cannot now
    be doubted that the Due Process Clause of the Fourteenth
    Amendment protects the fundamental right of parents to
    make decisions concerning the care, custody, and control
    of their children.

    Does this, in any way, present ambiguity or confusion? The answer, of course, is no.

    With respect to Justice Thomas, the entire first sentence of the second para. of his concurrence is copied exactly as it is written. The next sentence reads: “Our decision in Pierce v. Society of Sisters, 268 U.S. 510 (1925), holds that parents have a fundamental constitutional right to rear their children, including the right to determine who shall educate and socialize them.” Again, this sounds like a ringing endorsement of the fundamental constitutional rights that parents have to rear their children.

    It appears that your only quibble is that I focused on the recognition of the fundamental right but didn’t explore the reference to strict scrutiny by Justice Thomas. I think you would agree that recognition of the fundamental right is more important than the standard of review. While the standard of review is important, your quibble and the Justice’s doesn’t change my point. By Justice Thomas’ own words, he would have found that Washington lacked even a legitimate government interest in denying the wishes of a parent. That is, for those of you following along, the fact that the court found this right fundamental actually decides the question altogether.

    So, while I hear you about the standard of review, the case is clear that regardless of the standard of review the case would have been decided the same way and recognized the fundamental rights of parents. That’s why I focused on it. If the Court was shaky, or wavered, or gave any indication that parental rights were in jeopardy, I’d be right there with you, but I simply don’t see it.

    Now with respect to the Convention, the link to the text can be found here: http://www2.ohchr.org/english/law/crc.htm
    I respectfully disagree with your characterization that the Convention does not recognize parental rights. It does. Nor does an honest reading of the convention subjugate those rights to the rights of the State in the fashion that you allege. The link to the entire text is provided, but here are a few points to consider:
    From the Preamble:
    Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,
    Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding,
    Article 18
    1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.

    To conclude, I understand your position but I do not agree with you. I believe that you are manufacturing a crisis that does not exist. I won’t speculate on what political advantage you and your allies in this fight hope to gain by pushing this position. However, the main point of my original post is that there are an awful lot of issues touching on the economy, jobs, education and a thousand other things that the Georgia Legislature should be spending its limited time on. I suspect most Georgians would feel the same way I do.

  7. Rep. Holcomb,
    Thank you for considered reply. I regret the tenor of my original post; your response makes it clear that you are taking the entire matter more seriously than your original post communicated. The title itself raised my hackles, since we are looking at opposite sides of the same issue and both claiming “truth.” The political deceit I suspected you of I do see a lot, but I am grateful I am not seeing it in you – and I apologize for charging otherwise.

    The problem our organization sees with the Troxel case is that so many lower courts disagree with you in terms of its ambiguity.The First US Circuit Court of Appeals in Parker v. Hurley (2007, I believe), claimed that “Troxel is not so broad…” and that “[t]he Troxel plurality did not…specifically address which standard of review to apply when this due process right is implicated.” Likewise, California’s “In Re: Rachel L. (2008)”, upon rehearing, relied on California law to protect a parent’s right to homeschool because they could not find a sufficiently protected parental right under the Troxel decision. These are just 2 examples of state and federal courts taking license to set whatever standard of review they choose because the Court in Troxel did not call for the strict scrutiny test. And I have to disagree with you about the importance of a standard. It is NOT enough to call it a fundamental right; if it does not receive strict scrutiny protection, you can call it anything you like and it won’t protect parents in a court of law.

    As far as the CRC, I like all of those quotes you cited. But the Committee in charge disagrees as well. They have completely ignored the preamble, as well they may – the question of whether a preamble is legally binding is at best unsettled. And although Article 18 recognizes a parent’s “primary responsibility,” it says nothing of the rights that go with that responsibility, nor does it get around the fact that the entire Convention is an international treaty attempting to dictate domestic policy that would be binding on American families. (Under Article VI of the Constitution, a ratified treaty is “the supreme law of the land, and the judges in every state shall be bound thereby….”) We would prefer that Georgia’s judges be bound to uphold laws passed by the State of Georgia, not guidelines and interpretations issued by the U.N.’s Committee on the Rights of the Child. And on that, I am confident most Georgians would feel as I do.

    I regret how we have begun, as there is room here for great discussion. I don’t think either of us will persuade the other, but we can both walk away better informed from the exchange. I thank you for hosting it on your blog.

    One final note: I omitted the name of my organization to respect your desire not to name us, not to hide my identity. When I posted, I provided my email address and URL when prompted, so neither of these was hidden from the blog host. My apologies to any readers who thought otherwise.

  8. Michael Farris says:

    Representative Holcomb,

    Your conclusions are in error because you have only skimmed the surface of either subject. As you should know, the best way to understand the impact of a Supreme Court decision is to look at the lower court decisions which interpret and follow such a decision.

    And the best way to understand the meaning of the UN Convention on the Rights of the Child is to read the decisions of the official UN tribunal authorized to interpret and apply that instrument. You have done neither.

    Representative Holcomb, I challenge you to a public debate on these issues. I think a very formal debate, Lincoln Douglas style would be appropriate. We can agree on the details of the rules. Nothing less than 90 minutes. We could ask public television in Georgia to televise it.

    Do you accept?

    Michael Farris, J.D. LLM

    PS My LLM is in Public International Law from the University of London. One of my professors in the LLM program helped to write the UN Convention on the Rights of the Child.

Trackbacks

  1. […] Read: HR 738: Truth Prevails In Georgia Legislature This is how low some folks will go in the current political environment. Without any basis, the supporters of the bill were eager to get people scared that the federal government and the UN were plotting to take away parental rights. A conservative group, which I will not name because it does not deserve any attention, pushed this measure. From my vantage point, I want Georgia to focus on the real challenges before us. Let’s stop wasting time, let’s be truthful, and let’s get to work. […]