An Essay by Professor William Wagner
Long before “Western Culture” existed, the ancient Holy Scriptures instituted marriage between a man and a woman and instructed them to be fruitful and multiply.1 The divine law likewise articulated the authority and responsibility of parents to direct the upbringing of their children.2 Thus, naturally, and as a matter of religious conscience, parents marry, procreate and raise their children. In this role parents make medical, educational, and other decisions in the best interest of their children. Indeed, many parents view such decisions as a natural and sacred parental responsibility of the highest order.3 And, since ancient times, parents exercised this responsibility as a matter of religious conscience. Much of the natural law writing influencing Western Culture reflected those unalienable marital standards and parental rights revealed first in divine law.4 Blackstone’s writing likewise convincingly shows our nation’s common law traditions also reflected the natural and divine law principles.5 These unalienable liberties, and the idea that government is to preserve them, became part of Western Culture, and especially the American experience.
Considering the Unalienable Worldview of the American Constitution’s Framers, (as reflected in these deeply rooted cultural and legal traditions), it is not surprising the American Supreme Court traditionally held a man and woman had a right to enter together into a marriage, procreate, and raise their children. It is likewise logical that the Court consistently held parents to have a fundamental constitutional right to direct decisions concerning the upbringing of their children—both as a fundamental liberty interest6 and as a right to the free exercise of religious conscience under the First Amendment. A contemporary shift to a secular worldview poses serious threats to this fundamental liberty.
- See Genesis 2:24 (NIV) and Matthew 19:5 (NIV), ‘For this reason a man will leave his father and mother and be united to his wife, and they will become one flesh’. See also Genesis 9:7 (NIV), ‘As for you, be fruitful and increase in number; multiply on the earth and increase upon it’.
- See e.g., Deuteronomy 5:16; Ephesians 6:1–3; Proverbs 22:6; Proverbs 13:24; Ephesians 6:4.
- Since ancient times, parents exercised this responsibility as a matter of religious conscience.
- The writings of Pufendorf, Grotius, and Locke, for example, all expressly recognized the moral role of marriage the right of parents to direct decisions concerning the upbringing of their children. See, e.g., Pufendorf, The Two Books on the duty of man and citizen according to the natural law Chapter 3, 1, 2, available at http://www.constitution.org/puf/puf-dut_203.txt; H Grotius, The Rights of War and Peace, Book 1, The Preliminary Discourse XV; J Locke, The Second Treaties of Government, 96, Prentice Hall, 1952 (Originally published in 1690).
- See e.g., Blackstone, The RIGHTS of PERSONS, Book I, Ch 16, pp 435–36, 439–42.
- i.e., an implied right within the liberty protected under the 14th amendment.