The 14th Amendment:  Equal Protection

The Fourteenth Amendment, which was ratified in 1868, declares no state shall deny to any person with its jurisdiction the equal protection of the laws.  Please pay special attention to sections 1 & 3 of the 14th Amendment.  We the people have the power to enforce this Amendment!

Equal protection clause:

A clause in the Fourteenth Amendment that forbids any state to deny equal protection of the laws to any individual within its jurisdiction.

Equality of Result:

This intended to eliminate de facto discrimination from occurring in society.  De facto discrimination means discrimination based upon race, sex, religion, ethnicity, and from social economic conditions

What is “compelling state interest?” How does it apply to my personal case?

A “compelling state interest” is used to measure any fundamental right affected by governmental interference.  The argument of “where is the compelling state interest,” allows federal courts in reviewing state statutes, to justify their “opinions” as to the constitutionality of a law. 

Guess what? Parenting is a fundamental right protected by the 5th and 14th amendments. This has been established in Troxel v. Granville, 530 U.S. 99-138 (2000), Santosky v. Kramer, 102 S Ct 1388; 455 U.S. 745 (1982) and Quilloin v. Walcott, 98 S Ct 549; 434 U.S. 246, 255 Q56 (1978), among other cases. Treating parental rights as fundamental rights requires a presumption of joint legal and joint physical care upon divorce and through litigation.

Individuals arguing “where is the compelling state interest” in state court, forces the judge to list under what constitutional basis he/she has the authority to rule on child custody matters.

Meyer v. Nebraska, 262 US 390; 43 S Ct 625, (1923):

Parent’s rights have been recognized as being essential to the orderly pursuit of happiness by free man.

Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925):

The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.

Griswold v. Connecticut, 381 US 479 (1965):

A man has the right to enjoy the mutual care, company, love and affection of his children, and this cannot be taken away from him without due process of law. There is a family right to privacy which the state cannot invade or it becomes actionable for civil rights damages.

Stanley v. Illinois, 405 U.S. 645, 651 (1972):

The parent-child relationship is an important interest that undeniably warrants deference and, absent a powerful countervailing interest, protection.

Wisconsin v. Yoder, 406 U. S. 205, 232-233 (1972):

The Court took up a challenge to Wisconsin’s compulsory education laws and found that even when claiming a purpose of benefiting the child, the state must demonstrate convincing evidence that its intended policy will actually bring about its professed goal.

Quilloin v. Walcott, 98 S Ct 549; 434 US 246, 255 Q56 (1978):

A father who is separated or divorced from a mother and is no longer living with his child could not constitutionally be treated differently from a currently married father living with his child.

Santosky v. Kramer, 102 S Ct 1388; 455 US 745 (1982):

Even when blood relationships are strained, parents retain vital interest in preventing irretrievable destruction of their family life; if anything, persons faced with forced dissolution of their parental rights have more critical need for procedural protections than do those resisting state intervention into ongoing family affairs.
[W]hile there is still reason to believe that positive, nurturing parent-child relationships exist, the [state’s] parens patriae interest favors preservation, not severance, of natural familial bonds.  The State registers no gain towards its declared goals when it separates children from the custody of fit parents (quote at 766,767).

Troxel v. Granville, 530 U.S. 99-138 (2000):

The liberty interest at issue…the interest of parents in the care, custody, and control of their children--is perhaps the oldest of the fundamental liberty interests recognized by this Court… [I]t cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children

The Courts cannot take children from fit parents. You have to use the clear and convincing evidence standard when terminating parental rights! Santosky v. Kramer (No. 80-5889) 455 U.S. 745
The constitutionality of Ohio domestic relations court to deprive a biological parent, in a divorce situation, of equal custodial parent status without a finding by clear and convincing evidence that the parent so deprived is an unfit parent. Merz, Michael R., United States Magistrate Judge (Sept, 2002) U.S. District Court for the Southern District of Ohio Western Division at Dayton.  Order Joining the State of Ohio as a Party Defendant.

“[T]he State registers no gain towards its declared goals when it separates children from the custody of fit parents.” Stanley v. Illinois, 405 U.S., at 652

The Fourteenth Amendment’s due process clause has a substantitive component that “provides heightened protection against government interference with certain fundamental rights and liberty interests, “Washington v. Glucksberg, 521 U.S. 702, 720, including parents’ fundamental right to make decisions concerning the care, custody, and control of their children, see e.g., Stanley v Illinois, 405 U.S. 645, 651, Pp. 5-8. Troxel v Granville. U.S. Supreme Court, June 5, 2000.

There is a presumption that fit parents act in their children’s best interests, Parham v. J.R., 442 U.S. 584, 602; there is normally no reason for the State to inject itself into the private realm of the family to further question fit parents’ ability to make the best decisions regarding their children, see e.g., Reno v. Flores, 507 U.S. 292, 304. Troxel v Granville. U.S. Supreme Court, June 5, 2000.

The routine and cavalier deprivation of parental rights takes place in the context of divorce where, during the pendency of litigation, one parent is routinely deprived of significant parental rights without any demonstration that a state interest exists-much less that there is a compelling state interest that cannot be achieved in any less restrictive way. In marked contrast to our current practice, treating parental rights as fundamental rights requires a presumption of joint legal and physical custody upon divorce and during the pendency of divorce litigation. The presumption may be overcome, but only by clear and convincing evidence that such an arrangement is harmful to the children. Doe v. Irwin, 441 F. Supp. 1247 1249 (D. Mich. 1977).  From: Hubin, D.C., 1999, Parental Rights and Due Process. The Journal of Law and Family Studies, V 1, N 2, pp. 123-150.

“Although the dispute is symbolized by a ‘versus’ which signifies two adverse parties at opposite poles of a line, there is in fact a third party whose interests and rights make of the line a triangle. That person, the child who is not an official party to the lawsuit but whose well-being is in the eye of the controversy, has a right to shared parenting when both are equally suited to provide it.  Inherent in the express public policy is a recognition of the child’s right to equal access and opportunity with both parents, the right to be guided and nurtured by both parents, the right to have major decisions made by the application of both parents’ wisdom, judgment and experience.  The child does not forfeit these rights when the parents divorce.” Presiding Judge Dorothy T. Beasley, of the Georgia Court of Appeals, “In the Interest of A.R.B, a Child, July 2, 1993.

“a (once) married father who is separated or divorced from a mother and is no longer living with his child” could not constitutionally be treated differently from a currently married father living with his child.  Quilloin v. Walcott, 98 S.Ct.549; 434 U.S. 246, 255-56, (1978)

The U.S. Supreme Court regards parental rights as fundamental and protected by the First, Fifth, Ninth and Fourteenth Amendments. Doe v. Irwin, 441 F. Supp. 1247 1251 (D. Mich. 1977).

A parent’s right to “the companionship, care, custody and management of his or her children” is an interest “far more precious” than any property right.  May v Anderson, 345 U.S. 528, 533; 73 S.Ct. 840, 843, (1953).