Fathers Rights? In defense of family and other fundamental rights
July 22, 2003
By Roger F. Gay
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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 in.
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.
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
_________________________________________________________________
Roger F. Gay is a professional analyst and director of Project for the
Improvement of Child Support Litigation Technology. Other articles by Roger F.
Gay can be found at Fathering Magazine and the MND archive.
