The following is an excerpt from R.L. Stollar’s “Children as Divine Rental Property: An Exposition on HSLDA’s Philosophy of Parental Rights.” You can read the paper in full here.
HSLDA’s concept of children as divine rental property forms the basis for HSLDA’s understanding of parental rights as expressed through common law. HSLDA attempts to ground many of its arguments for religious liberty and homeschooling on a Western concept of common law, especially as expressed by English jurist William Blackstone in his work, Commentaries on the Laws of England. In The Right Choice: Home Schooling, the late Chris Klicka wrote, “One of the most influential common law sources on which the founders of our country relied was Sir William Blackstone’s Commentaries. Blackstone recognized that the most important duty of parents to their children is that of giving them an education.”[i]
Blackstone’s advocacy of parental rights, Klicka argued, became the cornerstone of an Oklahoma Supreme Court Case that Klicka considered key: “Building on this traditional liberty of parents as enunciated by Blackstone, the Oklahoma Supreme Court in School Board Dist. No. 18 v. Thompson secured the right of parents to control the education of their children.”[ii] This was key to Klicka because he and HSLDA desired to return to a previous era where “parental liberty historically was held to be virtually absolute,”[iii] and the Thompson case argued that, “In this empire [the United States], parents rule supreme during the minority of their children”[iv] [emphasis added by Klicka].
Because Klicka considered this court case to be of such significance, it is worth reviewing what aspects of the case Klicka neglected to mention. It is true that in 1909 the Oklahoma Supreme Court ruled in School Board Dist. No. 18 v. Thompson that, “In this empire parents rule supreme during the minority of their children.” However, the Thompson case also situates this parental supremacy in only one figure: the family patriarch. The case declared that, “The father was vested with supreme control over the child.” In terms of legal rights, “A mother, as such, is entitled to no power.”[v]
What the Thompson case declared — that the family patriarch has supreme power over his children (and the mother or wife has no legal power whatsoever) — is exactly what one should expect to find in traditional Western common law. Traditional Western common law is specifically grounded in the property-rights paradigm descended from classical Roman patriarchy. It goes back to the Roman legal concept of patria potestas (Latin for “power of the father”). Patria potestas meant that the male head of a household, otherwise known as the pater familias (father of the family), “not only…had control over the persons of his children, amounting even to a right to inflict capital punishment, but that he alone had any rights in private law.”[vi] The pater familias’s power went beyond his children: “The pater familias could do as he pleased with his family members: from dictating the conditions of marriage and divorce to disposing of his wife, children, and slaves through adoption, sale, or death.”[vii]
Under such a paradigm, rights are distributed according to property. Since adult Roman men (the family patriarchs) were the only ones allowed to have property, they were also the only ones allowed to have legal rights. Children, women, and slaves had no legal rights. They were all considered property under traditional Western common law — even to the point that they could be bought and sold: “In early law the paterfamilias could sell children into slavery… [The paterfamilias] had available to him the standard proprietary remedies of an owner. Thus, if a child was kidnapped, it was regard as ‘stolen’ which enabled the paterfamilias to recover it through a vindicatio and to sue for damages under the action for theft.”[viii] Similarly, “in controlling his wife, a man was simply exercising control over his own person or property.”[ix]
This is the tradition to which Klicka appealed and to which HSLDA continues to appeal.[x]
A primary reason for such appeals is that the United States Constitution does not explicitly mention the rights of parents. Thus HSLDA appeals to the tradition of common law to deduce the rights of parents from “the laws of nature” found in Western Civilization, in other words, property rights. Chris Klicka and fellow former HSLDA attorney Doug Phillips made this very argument in a 1997 article for Educational Leadership. In their section “Roots in Common Law,” Klicka and Phillips say, “The United States Constitution does not explicitly mention parental rights. Like other legal principles at the time of the nation’s founding, the right of parents to direct the education and upbringing of their children was an implicit and necessary assumption of society. That parents had a God-given duty as well as right to make all decisions with respect to the future of their unemancipated children was part of the higher law that the Declaration of Independence termed ‘the laws of nature and of nature’s God.’” They say these “laws of nature and of nature’s God” were enshrined in Western common law: “For more than a thousand years, the doctrine of parental rights had been a bedrock principle of the Western legal tradition, expressed throughout the ‘common law.’”[xi]
HSLDA founder Michael Farris explicitly ties this concept of Western common law to HSLDA’s advocacy of conservative Christianity and his organization’s understanding of what conservative Christianity teaches about parental rights. Farris says, “Our nation was founded upon the traditions of Western Civilization. This civilization was founded on the principles of the Word of God. God gives children to parents—not to the state, and not to doctors.”[xii]
To Farris and HSLDA, therefore, any threat to traditional Western common law or Western civilization could be perceived as a threat to homeschooling. One sees this fear directly in the rationale HSLDA has given for making opposition to same-sex marriage part of its homeschool advocacy. On their (now-removed) web page entitled “Why HSLDA is Fighting Against Same-Sex Marriage,” HSLDA states that, “Parental rights are a recognized constitutional right despite the fact that they are not explicitly stated in the Constitution. It is a fair question to ask: if they are implied rights rather than explicit rights, what is the source of parental rights?…Parental rights are based on ‘western civilization concepts of the family.’ When those concepts are no longer the legal definition of the family in this nation, then the foundation upon which parental rights are based is completely removed…Therefore, HSLDA will continue to fight against same-sex marriage. Same-sex marriage attacks the traditions of the family in western civilization. This is an attack on parental rights.”[xiii] HSLDA takes this “attack on parental rights” so seriously that it has supported a constitutional amendment to ban not only same-sex marriage, but also civil unions for same-sex partners by means of “the Institution of Marriage Amendment” [xiv] (web page also now removed).
The problem with grounding parental rights in common law (on the one hand) and then denying children should be treated as parental property (on the other hand) is that, as we just saw, common law is a property-based system. These “traditional rights” of parents come from a tradition wherein the male patriarch of a household rules supreme. The patriarch is the sole recipient of legal rights. This tradition continued even through 1909 in the Oklahoma Supreme Court case Thompson that Chris Klicka eagerly cited. In that case we see the vestiges of the tradition: the father alone has supremacy over everyone; the mother has no legal supremacy; the children have no rights until maturity; slaves have no rights whatsoever. Thus HSLDA is holding a logically tenuous position by trying to claim that, because of the Western common law tradition, parents should have sole legal authority over their children and yet children should not be considered those parents’ property.
This not only creates a legal Twilight Zone. It also means that granting anyone other than the father of a household any rights would (as it has) upset the entire tradition.
Click here to read the rest of “Children as Divine Rental Property: An Exposition on HSLDA’s Philosophy of Parental Rights.”
[i] Chris Klicka, The Right Choice: Home Schooling, Noble Publishing Associations, 4th printing and revised edition, 1995, p. 339.
[iii] Ibid, p. 338.
[iv] SCHOOL BD. DIST. NO 18 GARVIN COUNTY v. THOMPSON, 1909.
[vii] A. Javier Treviño, The Sociology of Law: Classical and Contemporary Perspectives, Transaction Publishers, 2001, p. 21.
[viii] Paul du Plessis, Borkowski’s Textbook on Roman Law, Oxford University Press, 2010, p. 112-113.
[ix] James G. Dwyer, Religious Schools V. Children’s Rights, Cornell University Press, 1998, p. 72.
[x] See, for example, Michael Farris, “Parental Rights: Why Now is the Time to Act,” Court Report, Marcy/April 2006, link, accessed on December 3, 2015: “The legal principle used in Pierce was first announced in Meyer v. Nebraska. The Court announced that ‘those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men’ were protected under the Due Process Clause…If implicit rights are tied to history, then there is a solid basis for determining what was a recognized right at a particular point in time.”