Congress Must Ensure Parental Rights Receive the Highest Level of Protection 

“The duty of parents to provide for the maintenance of their children is a principle of natural law; an obligation … laid on them not only by nature herself, but by their own proper act, in bringing them into the world.”

These are the words of Sir William Blackstone in his Commentaries on the Laws of England, which went on to shape the foundation of American law.

As Blackstone recognized, parental rights are natural, pre-political rights stemming from God’s design at creation. As such, they deserve the highest level of protection.

The U.S. Supreme Court has consistently recognized the primary role of parents in raising and caring for their children. But some other federal courts have failed to protect parental rights to the same degree as other fundamental rights, allowing government officials to infringe on them.

The Families’ Rights and Responsibilities Act will ensure that parental rights receive the same level of federal protection as other fundamental rights, protecting every parent’s right to direct the upbringing, education, and health care of their children.

What are parental rights, and why are they important?

At a basic level, parental rights encompass parents’ right to make decisions regarding the upbringing, education, and health care of their children without undue government interference. These rights have existed since creation, and they stem from God’s design for marriage and family.

As the people who brought their children into the world, parents are the ones who know and love them best. And they are the ones who are typically the most equipped to make important decisions about their children’s lives and well-being.

Parental rights are also inextricably linked to parental responsibilities. Parents, not the government, are ultimately responsible for raising their children. When the government infringes on parents’ rights to make decisions about their children, it interferes with parents’ ability to fulfill these responsibilities.

Government officials have no right to raise parents’ children for them. And when government officials infringe on parental rights, parents should be able to hold them accountable.

The Families’ Rights and Responsibilities Act

In January 2024, U.S. Senators Tim Scott and James Lankford and Congresswoman Virginia Foxx introduced the Families’ Rights and Responsibilities Act in Congress. The bill protects parental rights by ensuring that any action by the federal government that infringes on them is subject to “strict scrutiny.”

What is strict scrutiny?

Strict scrutiny is the highest standard of judicial review in the U.S. legal system. It requires a court to carefully scrutinize the government's action to ensure the government isn’t abusing its authority and trampling fundamental rights.

Under strict scrutiny, the government must show that its action is “narrowly tailored to serve a compelling government interest.” A “compelling” interest describes only interests that are necessary for the government to carry out its essential functions—like national security or public safety—and “narrowly tailored” means that the government can only interfere with the fundamental right to the least extent necessary to achieve its goal or interest. By design, it is difficult for a government action to withstand strict scrutiny.

Currently, federal courts often apply the strict-scrutiny analysis to government actions that burden constitutional rights like free speech and free exercise of religion. But these same courts often do not apply this same standard to parents’ fundamental rights. This is may in part be due to some lack of clarity in the United States Supreme Court’s rulings on the topic.

Troxel v. Granville

In 2000, the Supreme Court issued an important decision involving parental rights in Troxel v. Granville.

In this case, the Court reviewed a state law that allowed any person, at any time, to request visitation rights for any child. Under the law, if a court decided that, in its judgment, “visitation may serve the best interest of the child,” it could grant visitation rights—even against a parent’s wishes.

In a 6–3 ruling that had no majority opinion, the Supreme Court held the law unconstitutional. The four justices who joined the plurality opinion correctly concluded that it is the responsibility of loving parents, not courts or other government officials, to decide what is best for their children’s custody and care—including who can visit the child.

On the other hand, even though this ruling protected parental rights, the Supreme Court did not articulate a clear standard for evaluating parental-rights violations. Instead, the justices splintered into different groups, with some agreeing that parental rights are “fundamental” but failing to specify a level of scrutiny, others arguing that parental rights are “generally protected” but offering no test for future cases, and still others saying that parental rights should only be protected on a case-by-case basis.

These unclear standards have trickled down to lower federal courts, which have since varied greatly in their rulings about parental rights. Some have applied strict scrutiny, while others have applied a lower standard of review, effectively treating parental rights as a “second-tier” right.

Parental rights are fundamental rights. And they deserve the same level of protection as other core constitutional rights, like the freedom of speech or to exercise one’s religion. But until the Supreme Court clarifies the standard, the federal courts will continue to apply inconsistent levels of protection. That’s why the Families’ Rights and Responsibilities Act ensures that if federal officials take any action burdening these rights, that action is subject to strict scrutiny.

What does the Families’ Rights and Responsibilities Act mean for parents?

This act will provide parents with a much-needed means to hold federal officials accountable if they violate parental rights.

For example, the Biden administration’s proposed Title IX regulations could allow the federal government to require schools to treat boys as girls, and vice versa, without informing parents. This would be a blatant violation of parental rights, and the Families’ Rights and Responsibilities Act would provide legal recourse to parents so they could challenge the violation.

Importantly, however, this bill would not give parents a right to demand their child receive something that the child does not independently have a right to receive. For example, just because a parent “consents” to their 12-year-old child voting doesn’t mean that they have legal recourse to demand that their child be able to vote. The child does not have an independent right to vote until the age of 18.

For the same reason, when the government regulates the medical profession by setting limits on abortion or establishing standards of care that exclude puberty blockers, cross-sex hormones, and likely sterilizing surgeries for children, the Families’ Rights and Responsibilities Act does not provide a means for parents to challenge these regulations. Children do not have an independent right to receive medical treatment deemed harmful by the state, and parents cannot demand that doctors perform unlawful, dangerous medical procedures on a child.

Conclusion

Parents have a unique relationship with their children. They know and love their children best. And they have a fundamental right to direct the upbringing, education, and health care of their children.

If government officials threaten these rights, parents must have a legal recourse to defend them. The Families’ Rights and Responsibilities Act provides them with a means to do so. By applying the strict scrutiny test, this bill will ensure parental rights are protected just as much as other fundamental rights.