Alabama Supreme Court Justice Tom Parker: Courts Must Recognize God’s Law Limits What State Can Do
By John Lofton
“Six of the nine Justices of this Court have written seven opinions in this case. I find this remarkable, because neither the applicable child-custody laws nor the relevant legal precedents appear to be particularly unclear or inconsistent. This being so, we must look elsewhere for an explanation. After considerable reflection, I have concluded that the primary cause of the Court’s varied and often conflicting opinions in this case is disagreement over foundational issues that underlie the more visible custody issues. Thus I believe it is imperative to consider those foundational issues to properly resolve the case.
“Some of these underlying issues include: What are the distinct jurisdictional authorities of the state vis-à-vis the family, and, thus, to what extent may the state be involved in a custody dispute? What standard of review should apply when the lower court disregards higher court standards and precedents? What is this Court’s proper response to a standard that appears to result in injustice? And by whom are the best interests of a child to be determined?….
“I. Courts must recognize that the state is but one of several spheres of government, each with its distinct jurisdiction and limited authority granted by God (emphasis mine).
“Perhaps the first fundamental issue that should be considered in this case is the meaning of ‘government,’ and the nature of its multiple jurisdictions as recognized by our nation’s Founders. This is because our understanding of government in general will largely determine our views of particular governments and their interactions, such as the extent of permissible state government involvement in family government matters, including child-custody disputes.
“America’s Founding Fathers understood the word ‘government’ to possess a broader meaning than we usually acknowledge today, as seen clearly in Noah Webster’s original American Dictionary of the English Language, the definitive guide to English usage in the early American republic. Webster’s first definition of ‘government’ is ‘[d]irection; regulation,’ which he illustrates in terms of individual government: ‘These precepts will serve for the government of our conduct.’
“Webster also illustrates his second definition, ‘[c]ontrol; restraint,’ in terms of individual government: ‘Men are apt to neglect the government of their temper and passions.’ Webster’s third definition, ‘[t]he exercise of authority; direction and restraint exercised over the actions of men in communities, societies, or states,’ is the broadest definition of government and applies to every sphere.
“Webster introduces a second government sphere, the family (or the household), with his fourth definition of government, ‘[t]he exercise of authority by a parent or householder,’ which he illustrates with the following quote from Shepard Kollock: ‘Let family government be like that of our heavenly Father, mild, gentle, and affectionate.’ It is only with Webster’s fifth definition of government, ‘[t]he system of polity in a state,’ that he identifies the government sphere most recognized today — state (or civil) government. Lastly, Webster also recognizes the governing sphere of the church, which he defines in one entry as those ‘united under one form of ecclesiastical government.’
“Webster’s definitions demonstrate that our Founders thought in terms of a plurality of governments — including individual government and the covenantal governments of the family, the state, and the church — and not of state government alone (emphasis mine.) Each of these governments possesses its own exclusive jurisdiction of authority, constituting the original ‘separation of powers.’ Thus the separation of powers among the spheres of governments is of a higher order and greater significance than the separation of powers within a particular sphere of government, as in the state government’s division into executive, legislative, and judicial branches.
“Consequently, courts must recognize and uphold the separation of powers among the various government spheres even more diligently than they already recognize and uphold the separation of powers within the state sphere of government.
“Having acknowledged the historic meaning of government generally as well as having recognized the existence of the four particular government spheres, we should next consider how these governments relate to each other. Perhaps their most fundamental connection is that they all possess grants of specific and limited jurisdiction from the ultimate source of all legitimate authority, God (see Romans 13:1-2 (“there is no authority except from God, and those that exist have been instituted by God”)), who as the Supreme Judge of the World is the final authority over all disputes among men as well as among all governments of men (see Declaration of Independence.)
“Another way in which these governments relate is that, although each sphere possesses a distinct and exclusive jurisdiction, the governments are not independent of each other but are interdependent. One way in which these governments are interdependent is through a hierarchy that reflects the order of their creation. Thus, individual government historically preexists family government.
“Moreover, because individuals make up families and because individual self-government is necessary for family government to exist and to function properly, individual government supports family government while retaining its own exclusive sphere of authority. Likewise, family government preexists and supports state government, while retaining its own exclusive sphere of authority.
“If parents do not train their children to respect authority at home, for example, they are less likely to respect authority in government outside the home. Similarly, church government is also composed of individuals and families that preexist and retain their own distinct governing authorities while recognizing and supporting the separate authority of church government.
“Besides this mutually supportive role, the governments also provide a mutually corrective role. Thus, when individuals break covenant in one sphere of government, authorities in other spheres can take corrective action. If a parent exceeds the jurisdictional boundaries of family government — for example, by sexually abusing a child — state government may sanction the parent for child abuse in a temporal court of justice and, if the parent is a member of a local church, the government of that church may sanction the parent in a spiritual court. These mutually corrective jurisdictions may be understood as ‘checks and balances’ among the governments, which doctrine, like that of the ‘separation of powers,’ is of divine creation rather than human invention.
“Our legal traditions have long recognized these distinct government spheres, their interrelations, and their separate jurisdictions, although not always using such terms. Thus, what we call ‘individual rights’ may also be understood as the right of individuals to govern themselves. Likewise, what we call ‘parental rights’ are the rights of parents to govern their children, which from ancient times were symbolized by the authority of the rod of corporal punishment (see, e.g., Proverbs 13:24: ‘He who spares the rod hates his son, but he who loves him is diligent to discipline him.’)
“Similarly, the courts’ recognition of ‘religious rights’ includes deference to the decisions of ecclesiastical authorities. This sphere of church government has been symbolized by the keys of the kingdom. (see Matthew 16:19: ‘I will give you the keys of the kingdom of heaven, and whatever you bind on earth shall be bound in heaven, and whatever you loose on earth shall be loosed in heaven.’).) State government also has its distinct sphere of authority or governing rights and ancient symbol, the sword of justice (see Romans 13:4: ‘[The ruler] is God’s servant for your good. But if you do wrong, be afraid, for he does not bear the sword in vain….’)
“To be sure, at different times in human history and in different places today, each of these legitimate government spheres has improperly exceeded its own lawful authority or even usurped the authority of another government. For example, during the French revolution, individual government exceeded its jurisdiction by executing vigilante ‘justice’ on aristocrats who declined to placate the mob. Likewise, whenever parents abuse or kill their children, such as the infanticide sanctioned by pagan Rome or the abortion sanctioned by shifting majorities of the United States Supreme Court, family government exceeds its authority. Similarly, during periods in European history, church government exceeded its proper jurisdiction and intruded into areas reserved for state government.
“In modern times, however, the governing jurisdiction that most often exceeds its proper authority by usurpation is not the individual, the family, or the church, but the state. Because we live in an age in which such usurpation is so widespread that it has come to be commonly tolerated, this Court, as an organ of the state and, simultaneously, a minister of justice for all, must be especially vigilant to resist such usurpation in whatever guise it presents itself, even where it appears to favor the interests of a particular child.
“II. Because God, not the state, has granted parents the authority and responsibility to govern their children, parents should be able to do so unfettered by state interference (emphasis mine.)
“In view of the above, each time a court considers a child-custody dispute it should begin by taking judicial notice of the fact that parents possess the right and responsibility to govern and raise their children; that God, not the state, has given parents these rights and responsibilities, and, consequently, that courts should interfere as little as possible with parental decision-making, instead deferring to parental authority whenever it has not been fundamentally compromised by substantial neglect, wrongdoing, or criminal act.
“Explicit judicial acknowledgment of the source of parental rights is vital to preserve the vision and the reality of the state and society our Forefathers fought and died for, because many leaders in our society today reject the Founders’ view. They regard as anathema all calls to acknowledge God as the source of our rights and instead look to the state for ‘conferred’ rights. But this statist view cannot be correct, for it converts our ‘rights’ into mere privileges that endure only as long as supporters of these privileges maintain sufficient power in government. After all, if the state possesses the authority to grant our “rights” it has the authority to take them away.
“A recent ruling from the West Virginia Supreme Court of Appeals illustrates the consequences of converting God-given rights into state-granted privileges and thus underscores the importance of judicial acknowledgment of, and deference to, the true source of our rights. In Clifford K. v. Paul S., [Ms. 31855, March 8, 2005] ___ W.Va. ___, ___ S.E.2d ___ (2005), West Virginia’s highest Court held that custody of a child should be awarded to a lesbian ‘partner’ of a child’s deceased mother rather than to the child’s natural grandparents, because the lesbian was the child’s ‘psychological parent’ and the child’s ‘second mother, by design’ and ‘in actuality.’
“Several erroneous presuppositions underlie the West Virginia ruling. One is the presupposition that parental rights are mere licenses from the state, which may act through its judicial agent to alter or abolish them as it sees fit. Another erroneous presupposition is that the parental roles of father and mother are interchangeable, functional, and subjective rather than distinct, covenantal, and objective. Under this view, children need ‘caregivers’ rather than a father and a mother; consequently, whoever gives the care is the ‘real parent.’ Thus, one mother or two, one father or none, or a whole village — it matters not as long as the child receives ‘care.’ These views of parenthood and parental rights are fundamentally incompatible with our Founders’ belief that inalienable rights, including parental rights, are given by God, who as the Creator determines their nature and limits.
“Concerned that a trend of increasing state usurpation of family jurisdiction typified by the West Virginia ruling threatens Alabama parents as well, I welcome Justice Bolin’s ‘agree[ment]’ in his special concurrence ‘that parents have a God-given right and responsibility to rear their children … unfettered by state interference,’ and other Justices’ joining this judicial acknowledgment of the true source of parental authority and responsibility. Nevertheless, I remain troubled that more of my colleagues have not joined this explicit acknowledgment and that it is not matched in this case by action to repudiate the lower court’s extrajurisdictional order.
“To be sure, I recognize that even the most duly deferential court cannot completely avoid all state involvement in parental matters other than in the exceptions I stated above: cases of criminal behavior, substantial neglect, or other wrongdoing by parents. Yet where courts cannot avoid other involvement — such as custody disputes unwed natural parents have brought to them — courts should rule as narrowly as possible so as to intrude as little as possible. And where a custody dispute is between a natural or biological parent and one who is not a parent, courts should strongly favor the natural parent.”
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