new parental rights decision

On January 31, 2008, the First Circuit decided Parker v. Hurley. Here is a link to the opinion. The court rejected a variety of constitutional claims by parents who complained that their very young children (kindergarten-2d grade) were exposed to books that portrayed same-sex marriage in a favorable light. The parents asked for notice and an opportunity to opt-out. The opinion (which is lengthy) viewed this as basically a re-run of the Mozert case. The court's main reason for rejecting the claims was that the  plaintiffs hadn't pleaded a "constitutionally significant burden." Mere exposure to offensive ideas does not state a claim.

This ruling is nothing new but it still seems to me quite wrong. The idea that there is no burden seems hard to believe. The court seems to admit that the school's choice of books has deeply offended the plaintiffs' sincerely held religious beliefs. The court means that this isn't a cognizable "burden." But the court can only reach this conclusion by understating the impact that the plaintiffs assert (the case was decided on the pleadings and so the court had to accept the plaintiffs' allegations). That deficiency also seemed true in the Mozert case where the court had to redescribe the plainitffs' claim. The courts just don't seem to believe it when parents say that their religion prohibits exposing their children to certain books.

The problem here is that parents do not have sufficient control over the education of their children. It doesn't seem adequate to say that "exposure to the materials in dispute here will not automatically and irreversibly prevent the parents from raising" their children.

This ruling is another instance where the constitutional doctrine departs from Catholic social teaching. That teaching emphasizes parental control over education and also the need for parents to have sufficient resources (vouchers?) to choose the type of education they desire.

Richard M.