The case, Mirabelli v. Bonta, is straightforward for any reasonable observer. The radically liberal state of California sought to force teachers and school administrators to conspire against parents to secretly transition children suffering from gender dysphoria. It passed a law prohibiting schools from sharing information about a child’s transitioning with the child’s parents without the child’s consent. Several teachers and parents understandably objected to the madness, including some on religious grounds.
The record in this case indicates that the State’s nondisclosure policy applies even if parents expressly ask for information about their child’s gender identification. One set of parents learned of their child’s transition at school only after the child attempted suicide. Strikingly, even after this tragic event, school administrators continued to withhold information about the student’s gender identification.
Most Americans think like President Donald Trump on this: “These people are crazy,” and they don’t have to know anything about the law. The injustice of such a policy is plain for all to see.
Still, the people wanting to secretly transition children have taken their case all the way to the Supreme Court. The district court granted an injunction against the policy, saying it “prevent[ed] the schools from ‘misleading’ parents about their children’s gender presentation at school and their social transitioning efforts,” but the reliably liberal Ninth Circuit Court of Appeals granted a motion to stay the injunction pending appeal, meaning children would continue to be harmed, and parent’s right violated, while the case continued.
Notably, for our discussion, the Ninth Circuit completely misread the Supreme Court’s recent Mahmoud v. Taylor decision, a landmark ruling that upheld the fundamental right of parents to direct the religious upbringing of their children. In doing so, it invalidated a school policy that required students to engage with controversial and inappropriate materials promoting radical ideologies, including sexualized content and gender transitioning, without parental consent, notification, or an option to opt out.
The Ninth Circuit shrugged at the decision, though, dismissing it as “a narrow decision focused on uniquely coercive ‘curricular requirements.’” But, of course, as anyone with a brain can see, the violation of parental rights in this case is a million times worse than the exposure to objectionable books.
Thankfully, the Court made it abundantly clear, “the intrusion on parents’ free exercise rights here—unconsented facilitation of a child’s gender transition—is greater than the introduction of LGBTQ storybooks we considered sufficient to trigger strict scrutiny in Mahmoud.” The Court ensured the lower courts had the right reading of clear precedent, so they could do their jobs correctly, rather than inventing novel interpretations to obtain the results they prefer.
Any interest in the safety of children, the Court said, must acknowledge “the primary protectors of children’s best interests: their parents.”
The Court vacated the Ninth Circuit’s stay, noting not only that the parents are likely to win based on the precedent, but also that irreparable harm will happen in the intervening time if they do not act. “Everyone agrees that children’s safety is the overriding equity. And the injunction here promotes child safety by guaranteeing fit parents a role in some of the most consequential decisions in their children’s lives.”
Although this was a per curiam opinion presented by the Court as a whole, Justice Elena Kagan, joined by Justice Ketanji Jackson, dissented, primarily on procedural grounds, criticizing the Court for its impatience in deciding the case. Uncharacteristically, though, she also took on a clumsy attempt at criticizing the Court for its Dobbs decision. Her argument basically went something like this: “I thought you guys didn’t like substantive due process rights,” given that conservatives heavily criticize the doctrine of substantive due process because it invites the creation of new rights that are not enumerated in the Constitution.
Only, the application is totally misplaced here, and Justice Amy Barrett took note:
The dissent questions how the Court can adhere to parental-rights precedent after its decision in Dobbs v. Jackson Women’s Health Organization …. But Dobbs calls into question neither the doctrine of substantive due process nor the other unexpressed rights that the doctrine protects. Applying Glucksberg, Dobbs holds that Roe v. Wade …, and Planned Parenthood of Southeastern Pa. v. Casey …, were incorrectly decided because a right to abortion is not “deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty …” (Emphasis mine, citations omitted)
This is important because we at Concerned Women for America (CWA) submitted an amicus (friend of the court) brief alongside other pro-family organizations, arguing that parental rights, on the other hand, are deeply rooted in our nation’s history. We argued that, “Few if any fundamental rights not enumerated in the Constitution are more deeply rooted in American history and tradition than parental rights.”
Though the case continues in the lower courts, since this is ultimately not a decision on the merits of this case, the Supreme Court does a great service both to Americans and the law by providing clear guidelines for the lower courts to follow, helping judges to resist personal policy impulses in applying precedent to the cases before them.
