Arguing to preserve the laws, advocates for the grandparents say that they should be given a chance to seek visitations.
"This is not a guarantee or a blank check. It gives grandparents a right to have their day in court, a chance to prove why the children would be better off seeing them regularly," says Rochelle Bobroff, a lawyer for AARP, formerly the American Assn. of Retired Persons.
The Troxels' lawyer, Mark D. Olson of Seattle, also stresses the flexibility of the current laws. "You need to look to the specific situation. In this case, the father is deceased. Is it better to have the memory of their father preserved for the girls or to have it cut off entirely?"
Critics of grandparents' rights say that the lawsuits split families and burden parents with costly litigation.
Kelly Wynn, the girls' adoptive father, certainly agrees. "We have spent in excess of $50,000 defending ourselves, and the final bill is not in yet," he says. "This has affected our lives every day since they [the Troxels] disagreed on what we thought was best for the girls."
The U.S. Constitution says nothing about parents or families. The closest it comes is in the 14th Amendment's command that states may not "deprive any person of liberty without due process of law."
The reach of this phrase has been fiercely debated for decades, most famously in the Roe vs. Wade case of 1973. In that case, the liberal majority pointed to this provision and said that it implies a "right to privacy." And on that basis, state laws barring abortion were struck down.
Led by Chief Justice William H. Rehnquist, the current court has been notably stingy about using the 14th Amendment to rein in state laws.
Picking up on that theme, lawyers for the grandparents are urging the court to take a hands-off approach in this area as well. Just as families are evolving, so is the law, they say.
Unlike abortion, parents' right to raise their children is widely accepted. It is not well grounded in constitutional law, however.
In its decision siding with the parents, the Washington Supreme Court relied on snippets from high court rulings from the 1920s that interpreted the 14th Amendment. For example, the court in 1926 struck down an anti-Catholic law in Oregon that forbade parents from sending their children to parochial schools.
Today, the lawyers supporting the parents rely on those words and say they stand for the principle that the "micromanagement of family life" is unconstitutional.
"The right to raise one's children without state interference is the most sacred and enduring of our personal liberties," says Catherine W. Smith, the Seattle lawyer who represents Tommie and Kelly Wynn.
After Wednesday's argument, the justices will vote privately and begin work on an opinion to be handed down by June.
