Supreme Court Delivers Key Victory for Parental Rights in California

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.”

The United States Court of Appeals for the Ninth Circuit stayed his injunction.

For years, some of us have been raising the attacks on parental rights. That is why this order is so notable.

I recently wrote about this fight in Michigan, where parents secured the right to sue to defend their rights against the Rockford Public School District. The District refused to inform them of gender identity changes in their children.

While it only restores the injunction during the pendency of the litigation below, it reflects a clear notion of the likelihood to prevail on the merits.

There remains ambiguity on where individual justices fall on the issues. The parents raised both free exercise and substantive due process challenges. Justices Samuel Alito and Clarence Thomas wanted to go further in ruling on the merits in favor of the parents.

In her opinion, Justice Amy Coney Barrett rules for the parents, not the teachers, in the case. In her concurrence with the Chief Justice and Justice Kavanaugh, she focuses most on explaining why a view in favor of substantive due process is consistent with the decision in Dobbs.

The three liberal justices — Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson — dissented. Justice Kagan decried the rejection of California’s priorities and objected to “throwing over its policies in a slapdash way.”

Justice Sotomayor was the only member of the Court who opposed all of the parents’ and teachers’ claims. Without writing a dissenting opinion, she would have denied their application in its entirety.

The decision puts even greater focus on another case.

Last year, I wrote about a startling decision in Foote v. Feliciano in which the United States Court of Appeals for the First Circuit ruled against parents in a similar challenge. Massachusetts parents Marissa Silvestri and Stephen Foote demanded notice of any gender identity change of their child after learning that the 11-year-old child had self-declared as “genderqueer.”

The First Circuit dismissed the challenge, holding “as per our understanding of Supreme Court precedent, our pluralistic society assigns those curricular and administrative decisions to the expertise of school officials, charged with the responsibility of educating children.”

The petition for review to the Supreme Court is now pending. Foote could allow the Court to reaffirm the fundamental rights of parents and, most importantly, clearly establish the standard for review in future cases.

The Court previously stated in Pierce v. Society of Sisters (1925) that “the child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”

It is time for the Court to back up that constitutional right with clear and robust protections.

Here is the opinion: Mirabelli v. Bonta

Jonathan Turley is a law professor and the author of the New York Times bestselling “Rage and the Republic: The Unfinished Story of the American Revolution.”