The Bill of Rights enumerates what are thought of as constitutional rights. While the Bill of Rights originally applied only to the federal government, courts have used the 14th Amendment’s due process clause to apply the Bill of Rights to the states. There is an argument that the 9th Amendment confers unenumerated rights, but modern constitutional law jurisprudence has established unenumerated “fundamental” rights under this “substantive due process” analysis.

Fundamental Rights
To be fundamental, a right must be “deeply rooted” in our nation’s “history and tradition.” In the 2000 case Troxel v. Granville the United States Supreme Court recognized parents’ rights to the “care, custody, and control” of their children as fundamental. But Troxel did not establish the standard of review for parental rights.

There are generally two standards of review that U.S. courts apply to determine whether a substantive due process right has been infringed.

Strict Scrutiny
The most restrictive standard of review is strict scrutiny. For a government action to be upheld, the government must first show that it has a “compelling” interest. For example, courts say states have a compelling interest in protecting children from serious abuse. Second, the government must show that its action is “narrowly tailored” to uphold the compelling interest. This means the action was necessary and that the interest could not be upheld in a less restrictive manner. For example, the state must show that the only effective way to protect a child from serious abuse would be by separating the child and parent.

Rational Basis
By contrast, the rational basis test is the lowest standard of review. It requires the challenger to show that the government’s action is not “rationally related” to any “legitimate” government interest. Government actions are seldom struck down under rational basis review. In the context of substantive due process, strict scrutiny applies to fundamental rights while the rational basis test applies to everything else.

Application to Parental Rights
Parental rights advocates want strict scrutiny to apply to parent’s decisions. Practically, this requires the courts to give parents significantly more deference, especially for education, grandparent visitation, healthcare, and discipline. While it recognized parental rights as fundamental, the Court in Troxel strangely did not apply strict scrutiny.

However, states may provide more protection than required by Supreme Court precedent. Many states have thus passed laws recognizing parental rights as fundamental and requiring strict scrutiny. Numerous state supreme courts have separately applied strict scrutiny to parental rights. Most often, these cases involve state grandparent visitation or termination of parental rights statutes.

But other states have more closely followed Troxel, leaving an unclear standard of review even where the court says parental rights are fundamental.

A handful of states have specifically declined to apply strict scrutiny and may balance parents’ constitutional rights against children’s statutory rights.

Some federal circuit courts have applied strict scrutiny to protect parents’ medical decisions while using the rational basis test for parents’ attempts to opt out of public school curriculum.

At Heritage Defense, we believe that parental rights are not only fundamental and deeply rooted in our nation’s history, but more importantly that parental rights and duties come from the Lord. That is why we are here to protect our member families from false or overblown allegations of abuse or neglect.