Supreme Court orders lower courts to stop ignoring a century of parental rights precedents

A majority of the Supreme Court is finally losing patience with lower courts it perceives as looking for ways around both long-established and recent precedents, tacitly answering complaints by more conservative justices that the high court was routinely ignoring rulings that flagrantly violate its precedents.

In an emergency order Tuesday night, six justices rebuked the 9th U.S. Circuit Court of Appeals for blocking a permanent injunction against California's so-called gender secrecy policies, which require school districts to hide students' gender confusion from their parents and even falsely tell parents their children aren't presenting as the opposite sex at school.

Reportedly the most overturned federal appellate court since 2007, the 9th Circuit "brushed aside" last summer's parental rights precedent Mahmoud, wrongly limiting its application to school curricular decisions, while relying on a nonbinding opinion from the nearly-as-overturned 6th Circuit, the unsigned opinion says.

The plaintiffs are likely to succeed on their First Amendment free exercise claim because California's policies "substantially interfere with the 'right of parents to guide the religious development of their children,'" the majority said, quoting Mahmoud and the 1972 Amish school opt-out precedent Yoder upon which it's based.

The justices marveled that the 9th Circuit refused to apply "strict scrutiny," the most stringent legal standard for the government to meet, despite the fact that California's "unconsented facilitation of a child’s gender transition" is a greater attack on parental rights than the "LGBTQ storybooks" in Mahmoud, also subject to strict scrutiny.

This is "the most significant parental rights ruling in a generation," said the Thomas More Society, representing the plaintiffs. 

"The Court’s landmark reaffirmation of substantive due process, its vindication of religious liberty, and its approval of class-wide relief together set a historic precedent that will dismantle secret gender transition policies across the country," special counsel Paul Jonna said.

The court's conservative wing fractured on whether to reinstate all or part of U.S. District Judge Roger Benitez's permanent injunction, with only justices Samuel Alito and Clarence Thomas voting to protect teachers from compelled participation in the state's deception. 

Teachers Elizabeth Mirabelli and Lori Ann West originated the case, and their lawyers at the Thomas More Society said the partially reinstated injunction "effectively shield[s] teachers as well, since the class-wide parental victory prohibits the very policies that teachers were being compelled to enforce."

The 9th Circuit misread Benitez on the scope of the injunction, which only applies to California parents who object to the policies or seek religious exemptions, rather than all parents with children in California public schools, the SCOTUS majority said, questioning the 9th Circuit's understanding of class certification rules.

Justices Amy Coney Barrett, John Roberts and Brett Kavanaugh used much of their concurrence, penned by Barrett, to rebut the dissent by Justice Elena Kagan, joined by Justice Ketanji Brown Jackson that accused the majority of "throwing over [California's] policies in a slapdash way" by issuing a ruling via the so-called shadow docket.

It was the 9th Circuit that rushed to judgment by blocking the permanent injunction early in California's appeal, and the high court recognized "the risk of irreparable harm to the parents" from that decision, the concurrence says. 

"Under California’s policy, parents will be excluded – perhaps for years – from participating in consequential decisions about their child’s mental health and wellbeing" if the state gets to keep forcing schools to mislead parents through the appeals process, Barrett wrote. She emphasized Benitez only imposed the permanent injunction "after a full merits process."

Responding to Kagan's criticism that the unsigned opinion would be understood as the high court's final judgment against California's policies while the case continues on appeal, Barrett said SCOTUS needed to issue "general course correction" because the 9th Circuit "significantly misunderstood" Mahmoud.

Justice Sonia Sotomayor was the only member to conclusively reject the plaintiffs' petition, rather than just fault the majority's perceived procedural violations. Justice Neil Gorsuch was the only majority member to add no comment of his own.

"The Court’s majority delivered a clear message: Schools can't play therapist or activist without parental consent," the conservative Heritage Foundation said. "This is a huge win for constitutional principles, contrasting sharply with the liberal dissenters who sided with secrecy over transparency."

"Once again, the Supreme Court has made clear that parents do not take a backseat to anyone when it comes to raising their kids, especially not government bureaucrats," said Mark Rienzi, president of religious liberty law firm Becket.

'Everyone agrees that children’s safety is the overriding equity'

The edict from SCOTUS is likely to send shockwaves through other litigation that turns on how broadly or narrowly to read Mahmoud, giving an edge to plaintiffs who argue it protects parental rights far beyond curricular decisions.

A diverse coalition is supporting a SCOTUS petition to overturn the 9th Circuit's dismissal of a parental challenge to Washington state's law that allegedly sanctions "kidnapping" of gender-confused runaways. Several also backed the California gender secrecy petition.

Suburban Boston's Lexington Public Schools could find itself scrambling to settle a recent lawsuit over its refusal to show parents LGBTQ curricula in advance while demanding they identify specific lessons for opting out. The district also claims books that promote "mere tolerance" are exempt from Mahmoud notification and opt-out mandates.

Just last month, a Colorado parental rights group exposed a school district that used morning announcements to repeatedly invite students to LGBTQ discussions with a teacher during lunch.

The unsigned opinion emphasizes one set of parent plaintiffs didn't learn their daughter's middle school had been secretly transitioning her for a year until "she attempted suicide and was hospitalized." Even though the girl was involuntarily rehospitalized months later, her new high school kept treating her as a boy.

Another set of parents yanked their daughter, who has "sometimes identified as a boy" since fifth grade, from her middle school after the principal refused to confirm whether it was treating her as a boy, the opinion says. Sending the girl to private school is "financially and logistically infeasible," so she's still at risk in her new public school.

California asserted its "compelling interest in student safety and privacy" by "cut[ting] out the primary protectors of children’s best interests: their parents," rather than narrowing its policy to hide gender identity from "parents who would engage in abuse" while granting religious exemptions, the opinion said.

The "subclass of parents who object to those policies on due process grounds" are also likely to succeed because they enjoy "the right not to be shut out of participation in decisions regarding their children’s mental health," which includes gender confusion, it said. 

Parents can't wait to vindicate their constitutional rights "during the potentially protracted appellate process," the majority said, citing its ruling against New York's COVID shutdown policies that targeted houses of worship.

"Everyone agrees that children’s safety is the overriding equity," and Benitez's injunction "promotes child safety by guaranteeing fit parents a role in some of the most consequential decisions in their children’s lives" without empowering abusive parents.

The three-judge concurrence responded to Justice Kagan's allegations that the majority was expanding the "controversial doctrine" of substantive due process on a whim, circumventing the normal appellate process.

Precedents going back to the Roaring Twenties confirm that substantive due process includes "a parent’s right to raise her child, which includes the right to participate in significant decisions about her child’s mental health," such as how to respond to gender confusion that risks self-harm, the concurrence said. 

The Dobbs ruling that overturned federal abortion rights, meanwhile, was grounded on the court's finding that abortion rights were not "deeply rooted" in American history and tradition or "implicit in the concept of ordered liberty," it said, rebutting Kagan's argument.

Kagan's dissent questioned why the majority intervened in the California challenge when a "carbon copy" petition, from the 1st Circuit decision in Foote that upheld secret gender transitions, has been pending on the SCOTUS merits docket for several months.

"By recent count, almost 40 cases raising due process and/or free exercise objections to similar school policies are currently in the judicial system (with several recently decided by appellate courts), so this Court would not have to wait long" to take a case that would answer such questions, the dissent says.

George Washington University law professor Jonathan Turley echoed Kagan. "Foote could allow the Court to reaffirm the fundamental rights of parents and, most importantly, clearly establish the standard for review in future cases," he wrote.