A Curious Parental Right

Abstract

The United States Supreme Court has not articulated the appropriate level of scrutiny for judicial review of interferences with the parents' care, custody, and control of their children, despite determining it to be constitu- tionally fundamental. While some observers have called for the selection of a level of scrutiny to prevent inconsistencies among the lower courts, the complexity of the parental right has made it difficult for courts to use one level of scrutiny in such cases. To accommodate this complexity, this Arti- cle begins to build a new framework for conceptualizing the parental right in a way that explains and justifies using more than one level of scrutiny in a consistent and predictable way, depending on the specific parental issue at stake.