Parental Rights: Rhetoric Versus Doctrine
Professor Josh Gupta-Kagan observes that the Restatement of Children and the Law does not transform the law of child abuse and neglect. As he contends, this is neither a feature nor a bug. It is simply the reality of a restatement, which can only nudge, not reform, the law. I agree with Gupta-Kagan that only political will, not the American Law Institute (ALI), can fix the significant problems with the family regulation system. For advocates and scholars—including both of us—who seek structural and doctrinal change, the ALI has principles projects, and there is a broader ecosystem for law reform. But the nature of a restatement is to restate.
Notwithstanding this inherent constraint, I want to underscore one aspect of Gupta-Kagan’s argument and suggest that the Restatement does more than may first meet the eye. Gupta-Kagan applauds the Restatement’s embrace of parental rights for families facing coercive state intervention through the family regulation system. He demonstrates that at several doctrinal forks, the Restatement relies on parental rights to choose the rule that is more protective of family integrity. As Gupta-Kagan shows, by emphasizing these rights, the Restatement reinforces the doctrinal shield that helps protect marginalized families from state intervention. I second the value of this shield, but in my view, the Restatement does something else as well.
By restating the doctrine of parental rights—as it applies in the family regulation system and more broadly—the Restatement offers an institutional counterbalance to the heated partisan rhetoric around parental rights. Across the country, political leaders and advocates are claiming that these rights mean parents can control school curricula, minors cannot access reproductive health care without parental involvement, and parents must know about a child’s exploration of gender identity outside the home. This invocation of parental rights is not an attempt to recalibrate doctrine. It is a political strategy for advancing a world view. And it is highly effective, leading to considerable legislative success, at least for the moment.
Legal scholars appropriately identify the dangers in this political strategy, but, as I argue in this brief response Essay, even as we recognize the problems with the rhetorical invocation of parental rights, we cannot lose sight of the doctrinal importance of parental rights. As I elaborate below, in both its process and substance, the Restatement quietly and steadily affirms existing legal doctrine. The Restatement identifies the core interest at stake in parental rights: the relationship of a parent and child and the ability for one to be with the other. Protecting the parent-child relationship is important for all families, but it is especially critical for marginalized families, who are at heightened risk of family separation. And by underscoring these interests and their deep doctrinal roots, the Restatement may (optimistically), provide a counterbalance to the ongoing culture wars.