Inspired by poet and playwright Federico García Lorca’s unfinished work of the same name, Spain’s recent selection for the Oscars, the critically acclaimed La bola negra, has generated discussions that go well beyond cinema. Questions of belonging and exclusion are embedded in the very symbol that gives the work its name.1The black ball at the center of Lorca’s unfinished work – a vote of exclusion from a social club cast against a young man because of his homosexuality – symbolizes not only rejection but also the power to decide who belongs and who does not. The power to cast it matters as much as the rejection it signifies.
Parental-rights controversies center on a similarly contested authority: who has the power to cast the black ball and determine which groups merit recognition, accommodation, and protection. Recently, battles over abortion-related assistance, gender-affirming care, school disclosure policies involving LGBTQ+ students, curricular disputes concerning sexual orientation and gender identity and expression, and the treatment of LGBTQ+ youth in foster care have been framed as conflicts about parental rights. Yet an increasing body of scholarship pierces the parental-rights veil to reveal that these disputes are fundamentally contests over equality, democratic belonging, and the authority to decide whose identities receive recognition. Two recent articles, Mary Ziegler, Maxine Eichner, and Naomi Cahn’s Retrenchment by Diversion, and Susan Etta Keller’s The Double-Edged Rhetoric of Parental Rights, offer powerful frameworks for understanding and evaluating these increasingly consequential conflicts.
The current controversies discussed in both articles are only the latest chapter in a much older story. United States law has long relied on disputes involving children to negotiate broader questions of citizenship, equality, and belonging. Cases such as Meyer v. Nebraska, Pierce v. Society of Sisters, and Wisconsin v. Yoder employed the language of parental rights, but that was not the principal issue in any of them. At their core, these cases concerned national identity and the limits of state efforts to assimilate minority communities; anti-Catholic sentiment and efforts to suppress religious and cultural diversity; and competing visions of citizenship and social membership (a future Amish community member or a future participant in the broader polity). Children supplied the terrain upon which those larger struggles were fought; parental rights were the doctrinal vehicle through which those struggles were litigated and operationalized.
Other landmark decisions, most notably Brown v. Board of Education, drew upon the rights and interests of children to reshape constitutional understandings of equality itself. Whether through parental rights or children’s rights, legal conflicts involving children frequently serve as vehicles for courts and political actors to pursue broader social equality or anti-discrimination projects.
The urgency of the questions these articles pose about the weaponization of parental rights against sex, sexual orientation, gender identity and expression (SSOGIE) equality becomes more apparent by the day. Florida’s creation of an Office of Parental Rights within the Florida Attorney General’s Office demonstrates how parental rights can become institutionalized as a mechanism of state enforcement, while proposals such as Noah Torres’s call for a legislatively created Texas Office of Parental Rights illustrate the ongoing political and intellectual mobilization to further entrench parental rights within state governance. Against this backdrop, both articles ask: how should courts and scholars distinguish parental-rights claims that warrant legal solicitude from those that do not?
Their answers differ, but both reject the assumption that parental-rights claims should be taken at face value. Retrenchment by Diversion makes a significant contribution by offering a framework for identifying parental-rights claims that may be less about parental child-rearing than about resistance to equality-enhancing reforms. The authors argue that parental-rights rhetoric has become a powerful political tool because it allows advocates to frame conflicts involving abortion, LGBTQ+ inclusion, and educational policy in terms of the generally accepted value of family autonomy rather than equality. The result, they contend, is a form of “retrenchment by diversion,” in which parental-rights claims serve as vehicles for opposing social change while avoiding direct engagement with the underlying equality issues at stake and the growing recognition of LGBTQ+ equality, racial inclusion, and other challenges to traditional hierarchies.
What makes the article particularly useful is its effort to provide courts and scholars with a methodology for evaluating contemporary parental-rights claims. The core distinction, according to the authors, is that a genuinely parental-rights-oriented policy should enhance parental choice and decentralize decision-making to families. Yet many contemporary initiatives do precisely the opposite. They impose statewide restrictions on educational content, reproductive access, or gender-related issues while invoking parental rights as their justification. Far from expanding parental discretion, these measures frequently elevate the preferences of parents opposed to equality-enhancing reforms into binding statewide norms.
The article also urges decision-makers to consider the broader political context. When parental-rights claims repeatedly emerge alongside efforts targeting LGBTQ+ individuals, reproductive autonomy, or racial inclusion, courts should become skeptical of assertions that parental rights are the sole interest at stake. In this respect, the article provides a practical framework for identifying parental-rights claims that serve as mechanisms of retrenchment against equality.
The authors recognize, however, that exposing diversion is not enough. They therefore devote considerable attention to strategies of resistance. One such strategy is to reclaim, rather than abandon, parental-rights discourse.
What I found particularly compelling about this intervention is that it lends itself to a Gramscian reading, even though it does not employ that vocabulary. The article can be read as an account of how hegemonic and counter-hegemonic projects are negotiated through parental-rights discourse. It shows how counter-hegemonic projects, whether LGBTQ+ equality, racial inclusion, or reproductive autonomy, are frequently resisted not through direct attacks on those movements themselves but through the seemingly neutral language of parental rights. For example, opposition to school policies recognizing transgender students is often framed not as opposition to transgender equality itself, but as a defense of parental authority over children’s education. What appears at first glance to be a debate about family autonomy often turns out to be a struggle over who gets to cast the black ball and decide whose vision of equality, membership, and recognition will prevail.
Yet the article’s proposed resistance strategy of reclaiming parental rights also raises a difficult question. If parental-rights rhetoric can be mobilized both to resist equality and to advance it, then the legitimacy of parental-rights claims can no longer be assessed merely by their political valence. If both sides can exercise the same right with opposite results, then the doctrine of parental rights itself does not reveal which claim is stronger, but rather that it is just the vehicle for a larger political struggle over equality.2
The challenge, then, is not whether parental-rights discourse should be abandoned or reclaimed, but how to distinguish among the competing claims advanced in its name, when equality questions are less evident or get complicated by collateral considerations. It is at precisely this point that Keller’s article enters the scene. Rather than asking whether parental-rights claims advance or impede equality, Keller asks a different question: what can parental-rights rhetoric actually tell us when conservative or progressive parties or courts can equally invoke it?
By examining litigation involving transgender youth, which poses equality questions complicated by other concerns, Keller demonstrates that parental-rights rhetoric possesses a remarkable flexibility. Contemporary debates often assume that parental-rights claims carry an identifiable political valence. Keller shows otherwise. If parents challenging bans on gender-affirming care and parents supporting such bans have both invoked parental rights, parental-rights rhetoric is not inherently progressive or inherently reactionary.
Accordingly, Keller shifts attention from who gets excluded by the casting of the black ball to the legitimacy of the casting of the black ball itself. For that reason, she focuses on a relational model centered on the parent-child relationship. Strong parental-rights claims emerge when parents and children are aligned and when parental rights support children’s interests and developmental needs. Weaker claims emerge when parents seek to override children’s expressed interests, identities, or aspirations. By focusing on alignment and divergence, Keller offers a framework that places children’s interests much closer to the center of the analysis and seeks to answer the question about legitimacy.
Together, these articles have informed my thinking about the role children play in constitutional and equality disputes. Keller and the authors of Retrenchment by Diversion are engaged in complementary projects. Both seek limiting principles for parental-rights discourse. Both reject the notion that parental-rights claims should automatically receive deference merely because they are framed as parental-rights claims. The difference lies in their points of emphasis. Retrenchment by Diversion focuses on equality and political context. Keller focuses on family relationships and children’s interests.
But both remind us that conflicts framed as battles about parental rights are often contests about something larger. The enduring question is not simply who receives the black ball, or even who gets to cast it. Rather, it is how disputes involving children become the means through which society debates whose identities deserve recognition, whose interests count, and what equality requires. I hope they will inform the work of others as well, as we continue to find ways to end the casting of the black ball.
- In addition, the film has reignited debates about the complexity of intersectionality and historical memory. Some critics have objected to the foregrounding of Lorca’s sexuality, insisting instead that Lorca was killed by Nationalist troops because he was rojo (republican). Yet, this is a classic false dichotomy. Two things can be true at once. The political repression that killed Lorca cannot be disentangled from the social structures that rendered certain identities suspect in the first place. Similarly, claims about parental rights are often overdetermined. They may express concerns about family autonomy while also functioning as sites through which larger struggles over equality, citizenship, and belonging are contested.
- This is probably why moving to a children’s rights framework might be more effective.
