Parental Rights Are Again Validated, With A Vengence, By the Supreme Court

Last year, in Mahmoud v. Taylor, the Supreme Court reaffirmed the right of parents to control the religious upbringing of their children, and held that public schools cannot substitute their views for the views of parents on issues that touch core religious beliefs. In Mahmoud, the Supreme Court addressed the defendant school district’s policy of exposing young children to LGBT themed books and instruction. Some parents objected to their children receiving instruction on LGBT issues, claiming that the schools were substantially interfering with their ability to raise their children according to their faith. The Supreme Court agreed. Underlying the decision in Mahmoud was the finding that the defendant school district substantially interfered with the right of parents to raise their children according to their religious beliefs by exposing young children to material of a sexual nature that contravenes the parents’ deeply held religious beliefs.

In Mahmoud, the Supreme Court did not prevent schools from including LGBT instruction and books in the curriculum. A school district that wants to include LGBT instruction in its curriculum can continue to offer such instruction. If the school district wants to provide such instruction or materials, however, it has to notify parents, in advance, about these lessons and materials and give parents the ability to opt their children out of those lessons.

The Supreme Court’s decision in Mahmoud represented a significant reinvigoration of the rights of parents to have a say in what their children are taught; at least with respect to lessons and materials that touch issues such as sexuality and gender. As with most Supreme Court decisions, however, how lower courts interpret such decisions and the Supreme Court’s willingness to take these types of cases in the future determines whether the decision will actually have a meaningful impact. Given the small number of cases the Supreme Court can actually decide in any given year, the lower courts play a large role in determining whether a constitutional right expands, stagnates or atrophies. Nor is it uncommon that lower courts need time to get in sync with the Supreme Court’s views concerning certain rights, which leads to a back and forth dynamic between the Supreme Court and the lower courts. The Supreme Court’s recent decision in Mirabelli v. Bonta is a good indication that the Supreme Court is going to maintain the pressure on lower courts to respect both the free exercise of religion rights of parents and the parental rights doctrine based on the concept of substantive due process that is based on the Fourteenth Amendment.

In Mirabelli, the plaintiffs challenged two California State education policies: (a) a policy that prohibited teachers from telling parents “about their children’s efforts to engage in gender transitioning at school unless the children consent to parental notification,” and (b) mandating that schools use a child’s “preferred names and pronouns regardless of their parent’s wishes.” Two of the parent plaintiffs in Mirabelli have a daughter who attended public school, and per the policy, challenged by the parents, were not told that their daughter began to “present as a boy and use a male name and male pronouns during her seventh-grade year.” The parents have religious objections to the very concept of “gender transitioning,” and the school concealed their daughter’s efforts at transitioning at school. During eighth grade, their daughter attempted suicide and was hospitalized. It was only at that point that the parents learned that their daughter had “gender dysphoria and had been presenting as a boy at school.” The parents moved their daughter to a new public school after she completed her hospitalizations, and they apparently told the new school that they wanted to know if their daughter tried to present as a boy in school. The school ignored the parents wishes, allowed the daughter to present as a boy, and concealed this information from the parents.

The second set of plaintiff parents objected for non-religious reasons to their daughter identifying as a boy in school. Their daughter had apparently presented as a boy in school, on and off, for years. The parents became suspicious that the school was allowing their daughter to present as a boy and to use male pronouns. When the parents confronted the school’s principal about this, they were told that under California law the school could not share such information with them without their daughter’s consent.

Mirabelli is important for a number of reasons. First, the case raised both free exercise of religion issues under the First Amendment and, separately, parental rights issues that fall under the Fourteenth Amendment. Second, the holding in Mirabelli indicates that the Supreme Court is going to give the parental rights doctrine real teeth, at least, with respect to a school’s efforts to facilitate “gender transitions” by children. Finally, the procedural posture of the case shows that the Supreme Court is paying close attention to decisions by lower courts that disregard its decision in Mahmoud.

The decision in Mirabelli, standing alone, represents a significant development with respect to the protection of parental rights under the First Amendment and Fourteenth Amendment. How Mirabelli made its way to the Supreme Court and the Supreme Court’s issuing a detailed decision given the procedural posture of the case represents a seismic shift in the treatment of parental rights more generally.

Mirabelli, like practically every other federal case, started in a district court. The district court, after a trial, issued a permanent injunction that prohibited the defendants from (a) concealing from parents their child’s wanting to present as a different sex at school, and (b) mandating the use of a pronoun requested by the child that is not consistent with wishes of the child’s parents.

The defendants appealed the district court’s decision to the federal court of appeals for the Ninth Circuit. In the Ninth Circuit, the defendants asked the court to enter a stay that would prevent the operation of the injunction while the case was on appeal. The Ninth Circuit granted the stay, which meant that the defendants could continue concealing from parents efforts by their children to present as a different gender at school and to require that teachers and other school personnel use the child’s preferred pronouns. The appellate process can take over a year, so the Ninth Circuit’s decision represented a significant blow to parents who have young children in California schools.

The parents then asked the Supreme Court to vacate the stay entered by the Ninth Circuit. These types of requests are handled on what is called the Supreme Court’s “shadow docket.” The chances of the Supreme Court issuing a stay that essentially overrules a decision by a federal appellate court are extremely slim. Even showing that the appellate court’s decision was manifestly wrong will typically not justify vacating a stay by the Supreme Court. Instead, the party asking the Supreme Court to vacate a stay has to show that the appellate court’s stay was not just legally deficient, but also that the appellate court’s stay will cause the plaintiff to suffer irreparable harm while the appeal is pending. This is an extremely high burden.

Further, in the few instances in which the Supreme Court vacates the stay, it typically will issue a two or three paragraph statement that does not delve into the merits of the case. In Mirabelli, the Supreme Court issued a substantive decision that to a significant degree decides the case.

The Supreme Court’s granting the stay and issuing a substantive decision is a strong indicator that a majority of the Supreme Court’s justices are not going to let the lower courts relegate Mahmoud and the doctrine of parental rights to the dustbin of history.

A. Free Exercise of Religion

The Supreme Court held that the plaintiff parents were likely to succeed in showing that the California policies concerning gender expression at school and concealing this information from parents violates the First Amendment rights of parents to freely exercise their religion without substantial interference by the state. At first glance, a reader might be wondering how the defendants’ policies concerning “gender transition” efforts and the use of pronouns interfere with the free exercise of religion rights of parents.

In Mahmoud, the Supreme Court explained that raising children according to their faith is an integral part of many parents’ faith. When the state uses public schools to undermine basic religious tenants that a parent wants to instill in his or her child, the state is interfering with that parent’s ability to freely exercise their religion. The ability of parents to pass on their faith to their children is a basic duty parents have under many traditional religions. The State of California and its school districts chose to push a secular belief system on children attending California public schools that undermined the efforts of parents to raise their children according to their faith.

When the Ninth Circuit stayed the district court’s injunction, it largely ignored the Supreme Court’s decision in Mahmoud. Further, the Ninth Circuit did not apparently believe the defendants’ policies significantly interfered with the right of parents to raise their children in their faith. The Ninth Circuit’s decision is a good example of how lower federal courts can neuter a constitutional right. The Ninth Circuit seems to have concluded that facilitating a child’s “gender transition” is less of an interference with a parent’s free exercise rights than exposing children to LGBT instruction. The Supreme Court made short work of this suggestion. In Mirabelli, the Supreme Court stated that “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 Supreme Court then went on to condemn the California polices because they “cut out the primary protectors of children’s best interests: their parents.”

It is hard to see where the Ninth Circuit goes with the defendants’ appeal other than affirming the district court’s decision. What is remarkable is the Supreme Court’s full-throated endorsement of the view that parents are the proper custodians of their children’s best interests. This one sentence by the Supreme Court undermines much of the current dogma in certain schools that teachers and school administrators are better guardians or, at a minimum, co-equal guardians of their children who attend their school.

The Supreme Court also concluded that the parents demonstrated that they would suffer irreparable harm, if the Supreme Court did not vacate the stay issued by the Ninth Circuit. The appellate process can take a significant amount of time. The defendants’ substantial interference with the parent’s First Amendment rights with respect to their children would continue to harm the parents and their children while the appellate process ran its course. The young age of the children and the level of interference with respect to the parents’ ability to raise their children according to their religious faith created a situation in which a year or more could cause severe harm that could not be remedied at a later time.

B. Parental Rights

The parental rights doctrine is frequently discussed and invoked, but this vigor does not match its development by the Supreme Court; at least until now. The right was recognized by the Supreme Court more than 100 years ago. Yet, in that time, the Supreme Court has only issued a few decisions that squarely address this right. Not surprisingly, the actual decisions by parents that are protected by the parental rights doctrine is unclear. The Supreme Court’s decision in Mirabelli may indicate that this is about to change.

Parental rights as a constitutional doctrine is getting more attention because schools, in particular, are inserting themselves into decisions that have historically been the sole providence of parents. This is certainly the case with respect to issues concerning gender identity. States like California have decided that schools need to take a lead role in “helping” children “transition” or present as a gender different from their biological gender. At a deeper level, this trend represents a view that the state needs to take a much more active role in how children are raised, even if the state’s agenda is anathema to the views of a child’s parents. It also represents, in some cases, a belief that parents will not make competent decisions for their children, if, that is, the parents do not fully endorse the views of the State or school district.

Many parents do not agree that facilitating how a child presents their gender in school is the appropriate way to address gender dysphoria in their child. While for some parents, this view is based on their religion, for many other parents this view is based on their secular beliefs. At a basic level, a case like Mirabelli raises the question as to who has the right to make such a decision. In Mirabelli, the Supreme Court clearly showed that it believes that parents have the constitutional right to make these decisions.

In Mirabelli, the Supreme Court Supreme Court held that “parents—not the State—have primary authority with respect to the upbringing and education of children,” citing Pierce v. Society of Sisters that was decided about 100 years ago. The Supreme Court then held that included within this more general right is the “right [of parents] not to be shut out of participation in decisions regarding their children’s mental health.” Gender dysphoria is a mental health condition, and the parents of a child with gender dysphoria have the primary right to determine the treatment the child receives. The State of California cannot take it upon itself to make these decisions for children. Underlying the Supreme Court’s decision is the premise that schools are not superior guardians, or even co-equal guardians of the children they are supposed to educate.

The Supreme Court’s decisions in Mahmoud and Mirabelli indicate that the Supreme Court is going to give parents greater power to protect their ability to raise their children according to their beliefs: religious and to a lesser extent secular.