Is Support for Parental Rights Basically Just Another Form of "White Supremacy"?

No. The liberal defense for defending and protecting constitutional parental rights.

Recently, in response to a New York Magazine article claiming that the fight for parental rights was “white supremacy”, conservative California State Assemblyman Joe Patterson (R-Rocklin) tweeted “Disgusting. They’re trying to shame people who believe parents are essential to the lives of their children. This is a red line for me. No one, and I mean NO ONE, has domain over my children other than me and my wife.”¹

As Homer Simpson might say, “if Joe Patterson wants his ten year old son working in a burlesque house, then Joe Patterson’s ten year old son is going to work in a burlesque house!”

Is this conservative Republican California Assemblyman, who describes himself as “crazy”, wrong on this issue? No. He’s actually not.

And are parental rights something that is rooted in “white supremacy” and pushed by white nationalists as alleged by New York Magazine? Again, no.

Constitutionally protected parental rights are a longstanding part of American jurisprudence.² As the California Supreme Court has held, “the interest of a parent in the companionship, care, custody, and management of his children is a compelling one, ranked among the most basic of civil rights”.³

“The federal and state Constitutions guarantee that no state shall deprive any person of life, liberty or property without due process of law. A parent's interest in the companionship, care, custody and management of his children is a compelling one, ranked among the most basic of civil rights.”⁴

“Parents possess a profound interest in the custody of their children.”⁵ The “essence of custody is the companionship of the child and the right to make decisions regarding his [or her] care and control, education, health, and religion”.⁶ “Custody embraces the sum of parental rights with respect to the rearing of a child, including [his or her] care. It includes . . . the right to direct his [or her] activities and make decisions regarding his [or her] care and control, education, health, and religion.”⁷ “Parenting is a fundamental right, and accordingly, is disturbed only in extreme cases of persons acting in a fashion incompatible with parenthood.”⁸

So no, it’s not white supremacy. It’s a constitutional doctrine. And to summarize that doctrine in plain English, we don’t do co-parenting in this country, just like Republican Virginia Lieutenant Governor Winsome Sears is fond of saying.⁹

Parental rights are not expressly protected in the federal constitution. However, that does not mean they do not exist.¹⁰ There are many individual rights that are implied from existing constitutional provisions protecting individual liberty even if not textually specified.¹¹ Parental rights are one of these unenumerated constitutional rights.¹²

It’s true that implied unenumerated constitutional rights are under assault and threatened in the wake of the horrifying Dobbs decision, which took away a woman’s right to choose. But thus far, the suggestion of overturning other decisions protecting individual rights remains a lone Clarence Thomas concurrence that no other Justice joined. Justice Thomas does not always get his way when it comes to proposing radical abandonments of longstanding law protecting individual rights.¹³

Some might argue that liberals and progressives should oppose parental rights because if the unenumerated right of a woman to have an abortion has been ended by the Supreme Court, we ought to focus on ending all other unenumerated rights. This is specious reasoning at best. Dobbs is a travesty. But if we believe it’s wrong, we should dedicate ourselves to its ultimate reversal. We shouldn’t embrace it and attempt to extend its horribly flawed reasoning to end other unenumerated rights.

Some might begrudgingly acknowledge the existence of constitutional parental rights, and not dismiss them as simply the angry rantings of white supremacists. But some may question whether this is actually a good doctrine of constitutional law. Some history proves their worth and value.

The first two cases to formally recognize parental rights were Meyer v. Nebraska,¹⁴ and Pierce v. Society of Sisters.¹⁵ Meyer protected the constitutional right of parents to have their children taught a foreign language.¹⁶ Pierce protected the constitutional right of parents to educate their children in private schools instead of public ones.¹⁷

Both Meyer and Pierce laid the foundations for decisions that protected the constitutional right to procreation,¹⁸, the constitutional right to contraception,¹⁹ the constitutional right to marriage,²⁰ the constitutional right to divorce,²¹ and the constitutional right of the terminally ill to refuse medical treatment.²² Meyer and Pierce both grounded the United States Supreme Court’s decision guaranteeing marriage equality for gays and lesbians.²³

If we did not have constitutional parental rights, it is unlikely that we would have these other protected fundamental constitutional rights.²⁴

There may be some inclination, due to current media coverage, to dismiss the concept of parental rights as a “right wing” policy preference. However, many left wing judges have acknowledged the constitutional protection of the valuable and unique relationship that parents have with their children.²⁵

The political debate, particularly in areas involving hot button issues, may be confusing the public and even journalists reporting on the topic. Like most constitutional rights, parental rights are not unlimited or absolute. There are a few examples in which parental rights don’t over-ride the individual rights of the child or competing governmental interests in protecting society.²⁶

• Parents cannot involuntarily place their minor children in mental health treatment without due process for the child.²⁷

• Parents cannot consent to warrantless law enforcement searches of their minor children’s personal property.²⁸

• Parents cannot waive their minor children’s right to legal counsel in criminal cases for them.²⁹

• Parents cannot act so neglectfully of their minor children that results in death or severe injury and claim their constitutional parental rights as a defense.³⁰

• Parents can lose custody of their minor children when they beat the other parent to death in front of their minor children.³¹

• Parents do not have a right to decide whether their minor children can obtain contraception or seek abortions in California.³²

These exceptions apply because children possess their own individual constitutional rights.³³ Adolescents have constitutional rights to control their bodily autonomy when the decisions will carry lifelong impact.³⁴ Further, a parent may not be able to consent for a child, where a child may may be too young to exercise the right of a competent adult.³⁵ There, the state must protect the child’s future rights and interests as an adult that a child cannot knowingly waive.³⁶

However, these exceptions are far and few between. The general rule is that parents retain the authority to control their children’s upbringing. This rule is not unwieldy or impractical. It also does not support individual veto power of school curriculums. Constitutional parental rights are the right to control the upbringing of one’s own children, not the upbringing of other people’s children.³⁷ The very point of constitutionally protected parental rights is that we don’t allow other people to use the government to raise other people’s children in a way they would prefer.

This protection protects left wing parents and even politically centrist/apolitical parents as much as it does right wing parents. Without constitutional parental rights, laws could be enacted to force parents to raise children as right wingers believe is best for the children. Just as much as most right wingers do not want California State Senator Scott Wiener (D-San Francisco) making parenting decisions for them, most left wingers do not want Ron DeSantis making parenting decisions for them either.

If vegan parents wish to raise their children as vegetarians, the government cannot tell them to serve their kids meat. If parents want their children reading literature and watching television shows and movies featuring LGBTQIA characters, the government cannot tell those parents what their children must read and watch. If parents want to let their kids wear gender non-conforming clothing to school, it’s not up to the government to intervene and dress the child in a manner it finds more socially acceptable.

If a mother lets her 13 year old son play with her makeup and pursue his interest in makeup artistry, the government cannot countermand, and make him pursue more “manly” activities. If parents let their teenage daughter spend her weekend free time pursuing computer programming and learning advanced science, the government cannot force the girl to focus on fitting into prom dresses. Parents who may want to push their children in academic, artistic, or athletic pursuits they think are the best use of their talents are not restricted by government instructing otherwise.

These are but a few examples of parental decision making where others in society may object or feel differently but where individual parents will raise their children as they see fit.³⁸ In so many decisions that a parent could make regarding the care, custody, and control of their child, it’s not Ron DeSantis’s decision to make for them (or Scott Wiener’s).³⁹ It’s the decision of the parents.⁴⁰

Some might argue that parental rights need to be restricted because parents make bad decisions for their children. The truth is, though, there is no such thing as a perfect parent. Parents can be wrong. Children can be right. Children may even know better than parents in some instances. But that’s not a reason to take away parental rights and insist on governmental co-parenting.⁴¹

Ultimately, parental rights are an important constitutional right of Americans, not some expression of white supremacy, a white nationalist fantasy, or the perpetuation of systemic racism. Their protection and defense is fundamentally important.

1. https://twitter.com/Patterdude/status/1646058193871855618

2. The author of this article is an attorney licensed to practice in the State of California and the District of Columbia. This article and all of the works on this Substack page are statements of the opinions of the author, only, and do not constitute legal advice; they are not intended to be relied upon by any individual or entity in any transaction or other legal matter, past, pending, or future. A paid subscription to this Substack page supports the author's scholarship and provides access to research that the author has compiled, but does not establish an attorney-client relationship. The author does not accept unsolicited requests for legal advice or representation, and this Substack page is not intended as legal advertising. The opinions expressed on this Substack page reflect the personal views of the author only.