|Parham v. J.R.
[ Burger ]
[ Stewart ]
[ Brennan ]
Parham v. J.R.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA
MR. JUSTICE STEWART, concurring in the judgment.
For centuries, it has been a canon of the common law that parents speak for their minor children. [n1] So deeply imbedded in our traditions is this principle of law that the Constitution itself may compel a State to respect it. Meyer v. Nebraska, 262 U.S. 390"]262 U.S. 390; 262 U.S. 390; Pierce v. Society of Sisters, 268 U.S. 510. [n2] In ironic contrast, the District Court in this case has said that the Constitution requires the State of Georgia to disregard this established principle. I cannot agree. [p622]
There can be no doubt that commitment to a mental institution results in a "massive curtailment of liberty," Humphrey v. Cady, 405 U.S. 504, 509. In addition to the physical confinement involved, O'Connor v. Donaldson, 422 U.S. 563, a person's liberty is also substantially affected by the stigma attached to treatment in a mental hospital. [n3] But not every loss of liberty is governmental deprivation of liberty, and it is only the latter that invokes the Due Process Clause of the Fourteenth Amendment.
The appellees were committed under the following section of the Georgia Code:
Authority to receive voluntary patients --
(a) The superintendent of any facility may receive for observation and diagnosis any individual 18 years of age, or older, making application therefor, any individual under 18 years of age for whom such application is made by his parent or guardian and any person legally adjudged to be incompetent for whom such application is made by his guardian. If found to show evidence of mental illness and to be suitable for treatment, such person may be given care and treatment at such facility and such person may be detained by such facility for such period and under such conditions as may be authorized by law.
Ga.Code § 88-503.1 (1975). Clearly, if the appellees in this case were adults who had voluntarily chosen to commit themselves to a state mental hospital, they could not claim that the State had thereby deprived them of liberty in violation of the Fourteenth Amendment. Just as clearly, I think, children on whose [p623] behalf their patients have invoked these voluntary procedures can make no such claim.
The Georgia statute recognizes the power of a party to act on behalf of another person under the voluntary commitment procedures in two situations: when the other person is a minor not over 17 years of age and the party is that person's parent or guardian, and when the other person has been "legally adjudged incompetent" and the party is that person's guardian. In both instances, two conditions are present. First, the person being committed is presumptively incapable of making the voluntary commitment decision for himself. And second, the parent or guardian is presumed to be acting in that person's best interests. [n4] In the case of guardians, these presumptions are grounded in statutes whose validity nobody has questioned in this case. Ga.Code § 49-201 (1978). [n5] In the case of parents, the presumptions are grounded in a statutory embodiment of long-established principles of the common law.
Thus, the basic question in this case is whether the Constitution requires Georgia to ignore basic principles so long accepted by our society. For only if the State in this setting is constitutionally compelled always to intervene between parent and child can there be any question as to the constitutionally required extent of that intervention. I believe this basic question must be answered in the negative. [n6] [p624]
Under our law, parents constantly make decisions for their minor children that deprive the children of liberty, and sometimes even of life itself. Yet surely the Fourteenth Amendment is not invoked when an informed parent decides upon major surgery for his child, even in a state hospital. I can perceive no basic constitutional differences between commitment to a mental hospital and other parental decisions that result in a child's loss of liberty.
I realize, of course, that a parent's decision to commit his child to a state mental institution results in a far greater loss of liberty than does his decision to have an appendectomy performed upon the child in a state hospital. But if, contrary to my belief, this factual difference rises to the level of a constitutional difference, then I believe that the objective checks upon the parents' commitment decision, embodied in Georgia law and thoroughly discussed, ante at 613-617, are more than constitutionally sufficient.
To be sure, the presumption that a parent is acting in the best interests of his child must be a rebuttable one, since certainly not all parents are actuated by the unselfish motive the law presumes. Some parents are simply unfit parents. But Georgia clearly provides that an unfit parent can be stripped of his parental authority under laws dealing with neglect and abuse of children. [n7]
This is not an easy case. Issues involving the family and issues concerning mental illness are among the most difficult that courts have to face, involving as they often do serious problems of policy disguised as questions of constitutional [p625] law. But when a state legislature makes a reasonable definition of the age of minority, and creates a rebuttable presumption that in invoking the statutory procedures for voluntary commitment a parent is acting in the best interests of his minor child, I cannot believe that the Fourteenth Amendment is violated. This is not to say that in this area the Constitution compels a State to respect the traditional authority of a parent, as in the Meyer and Pierce cases. I believe, as in Prince v. Massachusetts, 321 U.S. 158, that the Constitution would tolerate intervention by the State. [n8] But that is a far cry from holding that such intervention is constitutionally compelled.
For these reasons I concur in the judgment.
1. See 1 W. Blackstone, Commentaries *452-453; 2 J. Kent, Commentaries on American Law *203-206; J. Schouler, A Treatise on the Law of Domestic Relations 335-353 (3d ed. 1882); G. Field, The Legal Relations of Infants 63-80 (1888).
It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.
Prince v. Massachusetts, 321 U.S. 158, 166.
The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.
Wisconsin v. Yoder, 406 U.S. 205, 232.
Because he may not foresee the consequences of his decision, a minor may not make an enforceable bargain. He may not lawfully work or travel where he pleases, or even attend exhibitions of constitutionally protected adult motion pictures. Persons below a certain age may not marry without parental consent.
Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 102 (STEVENS, J., concurring in part and dissenting in part).
Cf. Stump v. Sparkman, 435 U.S. 349, 366 (dissenting opinion).
The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.
Pierce v. Society of Sisters, 268 U.S. at 535.
3. The fact that such a stigma may be unjustified does not mean it does not exist. Nor does the fact that public reaction to past commitment may be less than the reaction to aberrant behavior detract from this assessment. The aberrant behavior may disappear, while the fact of past institutionalization lasts forever.
4. This is also true of a child removed from the control of his parents. For the juvenile court then has a duty to "secure for him care as nearly as possible equivalent to that which [his parents] should have given him." Ga.Code § 24A-101 (1978) .
The power of the guardian over the person of his or her ward shall be the same as that of the parent over his or her child, the guardian standing in his or her place; and in like manner it shall be the duty of the guardian to protect and maintain, and, according to the circumstances of the ward, to educate him or her.
6. Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, was an entirely different case. The Court's opinion today discusses some of these differences, ante at 604, but I think there is a more fundamental one. The Danforth case involved an expectant mother's right to decide upon an abortion -- a personal substantive constitutional right. Roe v. Wade, 410 U.S. 113; Doe v. Bolton, 410 U.S. 179. By contrast, the appellees in this case had no substantive constitutional right not to be hospitalized for psychiatric treatment.
7. See MR. JUSTICE BRENNAN's opinion, post at 630-631, and n. 16.
8. The Prince case held that the State may constitutionally intervene in the parent-child relationship for the purpose of enforcing its child labor law.Fourteenth Amendment.