Mother Too Religious To Be Homeschooling, Says Ex-Husband

Regardless of whether you take the mom's or the dad's side, this is absolutely about the safeguards of the US Constitution against goverment interference with parenting. In particular, before state action may interfere with either parent's fundamental rights it must pass strict scrutiny (i.e., Compelling State Interest, Nexus, and No Less Intrusive Means). However, three things really bother me about this case.

First, neither party briefed state action that well, which is required for strict scrutiny. In particular, neither party cited Shelley v. Kraemer, 334 U.S. 1, 18, which states that state action is found in a judge making a judicial decision. This is very different than the Respondent's argument that there is no state action and that the action is between the parties. I really hope the Supreme Court doesn't miss this one…

Second, neither party discussed the techniques used in determining choice of law, which are analogous to, or at least helpful in understanding a Least Intrusive Means test. It seems that Appellant is arguing that the court was required to balance the competing policies in her favor, and the Respondent is arguing a sort of "penalties decline" point where all the Substantive Due Process protections dispensed with, since both parties share equal rights. Neither is correct. As parents are similar to equal sovereigns, it would be instructive for the Supreme Court to look at the well developed "choice of law" cases, where we have two (or more) states having equal rights and intrests in a matter. Those cases are conceptually like "least intrusive means" cases, where the decisionmaker with look at competing requests in light of which state policies will be vindicated. Here, the court might have looked at which concerns each parent had (e.g., religion, socializing, education, etc.) and determine which outcome would vindicate the all or the majority of the both parents' concerns. Regardless of the outcome (i.e., home school or gov't school), this would be far more appropriate and coherent than creating a Substantive Due Process "carve out" based on the parties being parents of the same child. This is just lazy thinking that shouldn't pass muster.

Third, there is entirely too much credit given to the overused talismanic phrase "child's best interest", and neither party sought to challenge it's breadth or application. To illustrate it's breadth, it is in a child's best interest to have clean clother, and it is in a child's best interest to not be molested or abused. Although "best interest" is broad and vague enough to encompass both, no reasonable jurist could justify interfereing with either parent's right to parent based on the first illustration. If "best interest" is to be used as a bright line rule that carries the weight of "compelling state interest", it should be narrowed to mean "to do otherwise would be detrimental to the child". Otherwise, such a wide interpretation would necessarily open the door and authorize unfettered discretion in interfering with fundamental rights. Hopefully, the Supreme Court will address this as well.

Finally, outside of this particular case, I pose the question: If the Supreme Court upholds the lower courts' "carve out" of Substantive Due Process for matters where the parties are parents, wouldn't this open the door for any future litigant (i.e., give standing) to go into district court against the Supreme Court Justice and basically argue that (1) the Constitutional safeguards still exist for parents, and (2) there is no state remedy as the Supreme Court has weighed in on the issue and closed their door?