SCOTUS: Hey, Newsom, Leave Them Kids (And Parents) Alone!

Thanks to all of the attention we’ve spent on Operation Epic Fury, we missed this important ruling Monday from the Supreme Court, in the war everyone seems to love … the Culture War. 

Late yesterday, the court issued an emergency order blocking a new law in California that bans schools from informing parents of a child’s choice of transgender identity. A group of Christian teachers challenged the law, partially on grounds of religious freedom. In a 6-3 decision, the justices restored parental rights that should never have been disturbed in the first place:

The U.S. Supreme Court issued an emergency ruling Monday temporarily blocking California’s policies that ban public schools from sharing a child’s transgender status with their parents.

The emergency ruling in Mirabelli vs. Bonta blocks the California policies only until the case can make it through the court system. The majority opinion is that the plaintiffs will likely win the case because “the parents who object to the California policies on free exercise grounds are likely to succeed on the merits.”

The case was brought by a group of Christian teachers and parents who disagreed with the state’s policies of protecting transgender students’ privacy if they transitioned at school against their parents’ wishes. The parents and teachers are represented by the Thomas More Society, a law firm that represents Catholic public interests.

“California is requiring public schools to hide children’s expressed transgender status at school from their own parents,” CNN reported the Thomas More Society told the Court. “California parents (including religious parents) are suffering grievously under the state’s regime.”

The 6-3 vote on the order is somewhat unusual, at least in its publication. Although the order is published per curiam with its own controlling language, Justice Amy Coney Barrett authored the accompanying opinion to address the dissents from both sides of the court. The order to stay the law reverses an emergency order by the Ninth Circuit, but only applies to the parents who joined in the lawsuit, not the teachers. Justices Clarence Thomas and Samuel Alito would have granted the emergency order to all plaintiffs, while the three liberal justices would have denied it to all plaintiffs. 

The per curiam language expresses a significant rejection of California’s intrusion on parental rights in general, but especially regarding religious expression:

We conclude that the parents who seek religious exemptions are likely to succeed on the merits of their Free Exercise Clause claim. California’s policies likely trigger strict scrutiny under that provision because they substantially interfere with the “right of parents to guide the religious development of their children.” Mahmoud, 606 U. S., at 559 (citing Wisconsin v. Yoder, 406 U. S. 205 (1972)). The parents who assert a free exercise claim have sincere religious beliefs about sex and gender, and they feel a religious obligation to raise their children in accordance with those beliefs. California’s policies violate those beliefs and “impos[e] the kind of burden on religious exercise that Yoder found unacceptable.” 606 U. S., at 550. Indeed, 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. 

California’s policies will likely not survive the strict scrutiny that Mahmoud demands. The State argues that its policies advance a compelling interest in student safety and privacy. But those policies cut out the primary protectors of children’s best interests: their parents. See Troxel v. Granville, 530 U. S. 57, 68–69 (2000) (plurality opinion). California’s policies also appear to fail the narrow-tailoring requirement. The State’s interest in safety could be served by a policy that allows religious exemptions while precluding gender-identity disclosure to parents who would engage in abuse. For these reasons, the parents who object to the California policies on free exercise grounds are likely to succeed on the merits. 

I don’t find the passage on “narrow tailoring” to be compelling. There is no reason to withhold information from parents about a child’s health-related matters except in cases involving active abuse, not a kind of “precrime” determination about which parents might engage in abuse. That’s a very large portal to the exact same outcome that this order would prevent. The state could simply “determime” that parents who actively practice Christianity would likely “abuse” a child who declares a new gender “identity.” That’s particularly worrisome considering that transgender advocacy in schools creates many of these declarations, and that is arguably a form of abuse in itself. 

Nevertheless, a win is a win. Jonathan Turley offers a cogent analysis of what this means for parents, and hopefully soon, teachers: 

The Supreme Court on Monday issued an important order on its shadow docket in Mirabelli v. Bonta. The court granted an emergency appeal filed on behalf of Catholic parents by the Thomas More Society, blocking a state law that barred parental notification that their children had changed their gender identity.

I previously wrote about the case after heralding the decision of District Court Judge Roger Benitez, who wrote a powerful opinion in support of the rights of all parents. He wrote:

“The Attorney General on behalf of the State of California says Plaintiffs’ lawsuit is “properly understood as seeking a federal constitutional exemption from the California constitutional right to privacy, as applied to gender identity in the school context.” State Defs’ Oppo to Plaintiffs’ MSJ, Dkt 256, at 9. But the Attorney General gets it upside down. Plaintiffs do not ask the State to magnanimously permit a sort of federal constitutional exemption. What Plaintiffs seek is to force the State to respect their enduring federal constitutional rights as citizens of the United States.”

With this stay, the Supreme Court has effectively restored Benitez’ preliminary findings, at least in regard to parents. The case will now proceed in Benitez’ court, assuming California wants to keep defending a law that is more and more clearly detached from biological and medical reality. 

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