2018] CONSTITUTIONAL PARENTHOOD 1485
disabled.”4 More specifically, by deputizing the individual states, the Court’s
decision led to a system in which those “[w]ho actually enjoy the benefit of
those protections varies by state, and the amount of proof defendants must
make to garner that protection is similarly varied.”5 Even more troubling was
the fact that some states applied the Court’s directive so restrictively that
individuals with questionable cognitive abilities were nonetheless being
sentenced to death.6 For that reason, the Court would soon have to issue
another opinion on this topic, clarifying that, in determining whether a
defendant qualifies as mentally handicapped, states could not simply rely on
a bright-line IQ test threshold requirement.7 Three years later, as states
continued to experiment with how to define the term, the Court weighed in
once again, this time holding that states must use legitimate medical
diagnostic tools when determining whether a defendant was mentally
handicapped.8 Thus, within a short period of time, the Supreme Court would
issue three separate opinions on how states must define “mental handicap”
for purposes of ascertaining a defendant’s constitutional rights.
A similar, yet unresolved issue stems from the way states may define
“parent.” Like the mentally handicapped, the Constitution provides
protections to parents—in this instance, under the Fourteenth Amendment.9
In fact, the Supreme Court has gone so far as to characterize the
constitutional rights of parents to the care and upbringing of their children
as being “perhaps the oldest of the fundamental liberty interests recognized
by this Court.”10 But who qualifies as a parent? Despite the fact that the Court
first recognized the constitutional rights of parents in the mid-1920s,11 the
Court, in sharp contrast to the Supreme Court’s guidance on the definition
of “mental handicap,” has not weighed in on the issue of parental identity in
over a quarter of a century.12 The Court’s reticence might be understandable
if it had already put forth a satisfactory or even a workable definition of that
4. Ethan A. Wilkinson, Article, Eighth Amendment Protections in Capital Proceedings Agai nst the
Intellectually Disabled: Assessing State Methods of Class Protection Through the Lens of Hall v. Florida, 40
L. & PSYCHOL. REV. 321, 342 (2016).
6. See Penny J. White, Treated Differently in Life but Not in Death: The Execution of th e Intellectually
Disabled After Atkins v. Virginia, 76 TENN. L. REV. 685, 692–710 (2009) (noting the varying state
policies regarding execution of the mentally handicapped).
8. See Moore v. Texas, 137 S. Ct. 1039, 1050–51 (2017).
9. See infra notes 49–53 and accompanying text.
11. Meyer v. Nebraska, 262 U.S. 390, 400 (1923), is credited as being the first case to
recognize the fundamental right of parents. There, when discussing th e Liberty Clause of the
Fourteenth Amendment, the Court stated that, “[w]ithout doubt, it denotes not merely freedom
from bodily restraint but also the right of the individual to [among other things,] establish a
home and bring up children.” Id. at 399.
12. See generally Michael H. v. Gerald D., 491 U.S. 110 (1989) (the last case to do so).
See infra notes 112–30 and accompanying text.