Fathers Rights?
In defense of family and other fundamental rights


July 25, 2003

In "Hounding Baskerville," Tom Sylvester demonstrates the deepest divisions between activist social conservatism and core American political values. Activist social conservatives ignore boundaries between private and public issues as easily as they ignore the boundary between state and federal power. Like their far left counterparts, they abandon individual rights when embracing social causes. Nowhere are the divisions sharper or more critical than on issues that involve the basic social unit; family.

Mr. Sylvester's article is a response to "Government as Family Therapist," by Stephen Baskerville. Dr. Baskerville is a political science professor and well-known fathers' rights advocate who called into question the efforts of activist social conservatives to strengthen fatherhood and preserve the family. Mr. Sylvester answered by relegating Dr. Baskerville to an unworthy social class and calling upon the spirits of bureaucrats, special interest confidants, and New York Times reporters to defend his own.

The importance of the debate should not be underestimated. Both major political parties, bolstered by extreme elements, have moved well outside traditional American political boundaries in pursuit of a much more intrusive relationship between government and the people. Voices of discontent like Stephen Baskerville's represent tens of millions of people who have experienced the effects.

A real-world effect of political intrusion into fatherhood and family is the subject of a case that is heading toward the United States Supreme Court. This case will determine whether the battle for family rights has been won or lost. Under question is whether family rights are constitutionally protected or merely political constructions to be modified at the whim of legislators. Moreover, the case deals with whether legislatures have the authority to rescind established constitutional rights simply by reclassifying private interest disputes as social or economic policy.

In late 1989, states were pushed by a new federal funding scheme into dramatically changing the way all child support award amounts are set. Through the use of presumptively correct formulae, states arbitrarily increased award amounts in order to increase the amount of federal funds they receive. One of the specific objectives of fathers' rights advocacy is recognition of constitutional limits to state power that would constrain courts to ordering reasonable and appropriate child support amounts. The argument would be easily won on the basis of facts and logic. The battle however, must be fought against approximately $4 billion a year in federal funding that holds child support in a realm of public policy where individual rights do not exist.

A noncustodial mother in Georgia objected to an award set by that state's child support formula on constitutional grounds. She won the case in the trial court based on findings of fact that demonstrated violations of due process, equal protection, the right of privacy, and an unconstitutional taking of property under the Georgia constitution. The Georgia Department of Human Resources won a reversal on appeal. Daryl LeCroy, lawyer for the mother, has stated that this decision will be appealed to the United States Supreme Court.

There are two broad questions that stand out in the decisions. The first is whether family rights are fundamental. That is, are family rights protected under the Constitution? The trial court said that they are, and was particularly explicit on that point when recognizing the plaintiff's right to privacy.

While the source of the right to privacy has been held to originate in varying constitutional provisions, it has been long recognized to apply to "family" concerns whether the family exists within the confines of marriage or not. Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029 (8) (1972), Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705 at 726-28 (1973).

It is particularly important for social conservatives to note that as supported by established precedents cited by the trial court, no distinction is drawn for family concerns within marriage. The distinction between "them" (divorced and never-married parents) and "us" (married parents) may serve vanity when applied in a social context, but not the cause of political conservatism. Different choices on the boundaries between public and private issues will cause us all to sink or swim together.

The state supreme applied the lowest standard of constitutional review, which is typically reserved for public policy issues. It did not recognize family rights at all, nor did it regard the taking of income and property as worthy of constitutional concern. It reasoned in perfectly circular fashion that child support is not a "purely private" issue because statutes authorize courts to make child support determinations. Courts are even authorized, by statute, to reject and alter private agreements. Therefore, constitutional rights intended to protect individuals do not apply. Scissors cut paper. Paper covers rock. Statute nullifies Constitution. Is that the way it goes? Do individual rights disappear whenever a legislature chooses to pass laws that intrude in private life?

While both major political parties are pressing for a more intrusive role, our formally established relationship between government and the people is crumbling. Laws are passed in such quantity that many that deserve to be struck down will not reach the Supreme Court. State courts are far too sensitive to political pressure to be counted upon to withstand a legislative tsunami; a great rush of radical reforms supported by both major political parties; particularly when accompanied by large amounts of federal funds. The argument given by the Georgia supreme court, sympathetic to a bipartisan agenda, is that wherever government intrusion advances, constitutional rights retreat. If this is the accepted norm, then constitutional rights are an illusion manipulated by political whim.

Since Republicans have embraced the spending scheme, activist social conservatives praise what they call "bipartisan support for promoting healthy marriages and responsible fatherhood" and downplay the significance of bipartisan support for further government intrusion. Tom Sylvester rejects Stephen Baskerville's arguments as "conspiracy-theory nonsense." But anyone can create real conspiracies, even elaborate ones, if they have enough money to pay for them. Intrusive Big Government programs are always accompanied by massive funding schemes. The budget for the child support program, around $4 billion a year, buys a pretty big conspiracy.

If Tom Sylvester does not know that federal family law reform has created "a very dangerous and destructive machine," then he has not been paying attention. Aside from manipulating the amount of child support awarded, federal reforms created a mammoth and expensive enforcement system. Analysts at the Cato Institute, known for its objective analysis, characterize the federal child support enforcement program as "big brother" government intrusion that threatens privacy rights. [articles - 1 - 2 - 3 - 4 -] The program funded the creation of a multi-billion dollar computer system that accumulates personal information on every resident of the United States. The problem is not just the existence of a computer system, but policy reforms that allow mass arbitrary and unmitigated government snooping into everyone's personal life. In combination with the removal of constitutional boundaries against arbitrary government manipulation, family rights along with all other fundamental rights are disappearing.

The point of eliminating rights is to gain control. The motive is money. Out in the real world, the effects are apparent. States engage in accounting fraud to keep more money flowing. Fathers are cheated out of money they need to support their children. Collection agencies take inappropriate amounts and illegally keep payments. [articles - 1 - 2 -] Men are forced to pay child support for children that are not theirs. Police literally break down doors and arrest fathers at gun point for minor disruptions in payment. When the judiciary abandons its function to set things right, gun battles erupt in the streets.

People who claim to be "strengthening fatherhood" have been waging war against fathers. Their class war escalated from low class mud-slinging to violence, corruption, and chaos. Instead of acknowledging the problems they have created, and working to correct them, they are all too anxious to expand their territory. I vote no, and believe I can count the people who passed the Bill of Rights into law on my side.

Roger F. Gay