Washington
U.S. Supreme Court Justice Antonin Scalia told a law school audience on Monday that there is no U.S. constitutional right of parents to direct the education and upbringing of their children.
The nation鈥檚 charter document is 鈥渘ot a perfect Constitution,鈥� and many 鈥渋mportant rights are not contained there,鈥� Scalia told an auditorium of first-year law students at Georgetown University Law Center here.
鈥淔or example, my right to raise my children the way I want,鈥� he said. 鈥淭o teach them what I want them taught, not what Big Brother says. That is not there.鈥�
To a large degree, Scalia was repeating views he has long held and expressed in dissents to the high court鈥檚 decades-old precedents that say that parents do have such a fundamental right to direct the upbringing of their children. In , a 2000 case about grandparents鈥� child-visitation rights, the court reaffirmed that view.
Scalia dissented from the outcome in that case, which went against two Washington state grandparents seeking visitation rights to their grandchildren against the wishes of the children鈥檚 mother. He said the right of parents to direct the upbringing of their children was among the 鈥渦nalienable rights鈥� mentioned in the Declaration of Independence, but that he did not believe the Constitution gave him the power as a judge to rule on state laws that may interfere with such a parental right.
Scalia鈥檚 dissent cast some doubt on the constitutional underpinnings of the court鈥檚 two key precedents on parental rights in education鈥�, a 1923 decision in which the court struck down a Nebraska law that barred instruction in foreign languages because it interfered with the right of parents to obtain such instruction for their children, and , a 1925 ruling that struck down an Oregon law that required public school attendance, thus precluding enrollment in parochial schools.
In his wide-ranging conversation at Georgetown on Monday, Scalia was a bit more direct in expressing doubt about a constitutional right of parents to direct their children鈥檚 education, and he drew a comparison to a more recent hot issue鈥攕ame-sex marriage.
Because such a parental right is 鈥渟imply not in the Constitution,鈥� he said, 鈥淚 will not enforce it from the bench.鈥�
鈥淭he notion that everything you care a lot about has to be in the Constitution is a very dangerous notion,鈥� Scalia continued. 鈥淏ecause it begins with stuff we all agree upon. 鈥極h, sure, we ought to be able to educate our children the way we want.鈥� That was one of the early substantive due process [cases]鈥攄on鈥檛 get me going on substantive due process.鈥�
That is the notion that the 14th Amendment due-process clause protects certain fundamental rights as well as procedural rights.
Scalia said Monday that 鈥渁t the bottom of that slide鈥� down the slippery slope of substantive due process 鈥渋s same-sex marriage.鈥�
Scalia鈥檚 dissent in last June鈥檚 decision in was critical of the majority鈥檚 recognition of a 14th Amendment substantive-due process right to same-sex marriage. Substantive due process 鈥渟tands for nothing whatever, except those freedoms and entitlements that this court really likes,鈥� Scalia wrote.
鈥淭hat鈥檚 what happened,鈥� Scalia added at Georgetown. 鈥淚t began with, 鈥極h, who could possibly disagree with Pierce v. Society of Sisters.鈥� Nobody could disagree with that. But then, once the court is making these decisions, it is going to make decisions a lot of people disagree with.鈥�
In his majority opinion in Obergefell, Justice Anthony M. Kennedy wrote that one 鈥渂asis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.鈥�
He cited Pierce and Meyer. 鈥淭he court has recognized these connections by describing the varied rights as a unified whole: The right to marry, establish a home, and bring up children is a central part of the liberty protected by the Due Process Clause,鈥� Justice Kennedy said in his opinion.