Jeffrey Shulman
- Published in print:
- 2014
- Published Online:
- January 2015
- ISBN:
- 9780300191899
- eISBN:
- 9780300206746
- Item type:
- chapter
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300191899.003.0003
- Subject:
- Law, Family Law
The right to parent as a matter of constitutional law is especially tenuous. The Supreme Court has on occasion echoed the popular assumption that the right of parents to make decisions concerning the ...
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The right to parent as a matter of constitutional law is especially tenuous. The Supreme Court has on occasion echoed the popular assumption that the right of parents to make decisions concerning the care, custody, and nurture of their children is a fundamental one, deeply rooted in legal tradition and honored by the work of the Court. But no Supreme Court holding—including those of the seminal parenting cases Meyer and Pierce, and modern variants like Yoder and Troxel—supports this claim. If the rigor of the Court with regard to the regulation of parental authority has varied, its scrutiny has never been strict. In fact, more than once the Court has declined the opportunity to adopt this position. As Justice Antonin Scalia has observed, there is little decisional support for the notion that the right to parent is a “substantive constitutional right” at all, let alone a fundamental one.Less
The right to parent as a matter of constitutional law is especially tenuous. The Supreme Court has on occasion echoed the popular assumption that the right of parents to make decisions concerning the care, custody, and nurture of their children is a fundamental one, deeply rooted in legal tradition and honored by the work of the Court. But no Supreme Court holding—including those of the seminal parenting cases Meyer and Pierce, and modern variants like Yoder and Troxel—supports this claim. If the rigor of the Court with regard to the regulation of parental authority has varied, its scrutiny has never been strict. In fact, more than once the Court has declined the opportunity to adopt this position. As Justice Antonin Scalia has observed, there is little decisional support for the notion that the right to parent is a “substantive constitutional right” at all, let alone a fundamental one.
