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Although generally viewed as a reaffirmation of parents’ fundamental right to care for their children, the U.S. Supreme Court’s ruling on grandparent visitation has left many wondering just how fundamental that right is. Is it fundamental enough to overcome a state’s increasing regulation of home schooling? Can it be a bar to government’s desire to terminate parental rights to speed the movement of children out of long-term foster care? Can it fuel the school voucher movement? Glaringly missing from the justices’ various opinions in Troxel v. Granville, No. 99-138, were two little words: strict scrutiny. The court decided by a 6-3 vote that commanded no majority rationale that the “breathtaking sweep” of a Washington state statute allowing any third party to petition for visitation rights violated a parent’s due process right to make child-rearing decisions. The court’s key precedents on the subject — the ones referred to in the June 5 decision — are more than 70 years old and came down before the court developed different standards of review for different rights: strict scrutiny, intermediate scrutiny and rational basis. In two of the cases — Meyer v. Nebraska, 262 U.S. 390 (1923) and Pierce v. Society of Sisters, 268 U.S. 510 (1925) — the court indicated that state interference with parents’ rights would be judged on a “reasonableness” basis, said Scott Bullock, of the Institute for Justice, which filed an amicus brief supporting the mother, Tommie Granville, and urging strict scrutiny. “Some courts have latched on to that to say the right is not fundamental and the standard of review is rational basis,” he said. “But that’s obviously not what the court had in mind in Troxel.” He predicted “some confusion among the courts.” “In my judgment, this is not a great victory, but a very sad erosion of parental rights, which have existed in limbo since Pierce and Meyer,” said constitutional law scholar Douglas Kmiec, of Pepperdine University. “Before this opinion, the status of parental rights was a question mark. People could make their arguments — they were fundamental rights or not — and sometimes the courts said they were fundamental. Now I think it will be much harder for advocates of parental decision-making to make that case because they have at best 4 1/2 justices on their side — that’s not overwhelming.” Michael Adams, of the American Civil Liberties Union, which also supported Granville, said that the justices dodged the question of which standard to apply, “to allow flexibility in future decisions for these changes in families and how they live.” The ACLU believed that the Washington law did not give sufficient deference to parents, he said. At the same time, he said, “We were very concerned that in supporting the mother, the court would rely on traditional notions of families.” Had the court applied strict scrutiny, “it would almost preclude third-party access” to a child, said family law practitioner Barbara Ellen Handschu, vice president of the American Academy of Matrimonial Lawyers. “I don’t think it’s a ringing reaffirmation of parental rights. There’s a wide-open door here.” She predicted that the court will get another chance when a better-drafted visitation statute reaches it. “We’ve had several cases in New York where same-sex parents live in the same household,” she said. “They split up and the biological parent objects to visits by the nonbiological parent. The child loses all future contact with someone who had been a significant person in their life.” Termination of parental rights in foster care situations, she said, is also prompting suits that could make the court revisit the standard-of-review issue. Kmiec suggests that “more than met the eye” was going on in the Troxel decision. “The court is culturally divided on nontraditional families, which are also in play in terms of the legal landscape,” he said. “Same-sex marriage is going to be litigated before the Supreme Court in some form. And insofar as there are same-sex adoption statutes in some states, that raises parental rights as well.” On school voucher litigation, he said, “It’s not at all uncommon for advocates of educational choice to make, in addition to a religious freedom argument, an argument based upon parental rights. To some degree, the court may have been worried about that.”

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