California has been violating parents’ rights for years. While a recent Supreme Court case has been hailed as a win for the good guys, it is just a small step restoring the role of parents in the lives of their children.
Parental Rights
Parental rights have been an issue in California for years, even after previous court decisions clearly stating that it is the parents, not the state, that has the constitutionally protected right to guide a child’s upbringing. However, that hasn’t stopped California, which leads us to the case Mirabelli v. Bonta.
Before us is an application to vacate a Court of Appeals order staying a permanent injunction entered by a District Court on behalf of parents and teachers who claim that certain California policies violate their rights under the Free Exercise Clause of the First Amendment and the Due Process Clause of the Fourteenth Amendment.
Mirabelli v. Bonta – Vacate Order
First, it’s important to keep in mind that the only question before the Supreme Court is whether or not to vacate the stay on the District Court’s permanent injunction. The merits of the case are not directly at issue, only whether or not the Circuit Court erred by staying the injunction.
If you’ve followed The Constitution Study for any length of time, you may recognize the first problem with plaintiff’s claims: The First Amendment. I’ll dig into that later.
There are two classes of plaintiff in this case, parents and teachers. Let’s start with the parents.
The parents object that these policies prevent schools from telling them about their children’s efforts to engage in gender transitioning at school unless the children consent to parental notification. The parents also take issue with California’s requirement that schools use children’s preferred names and pronouns regardless of their parents’ wishes.
Mirabelli v. Bonta – Vacate Order
The parents object that California schools are keeping critical information about their child’s mental health from them. Furthermore, California schools not only keep critical information, but encourage the student’s mental disorder, regardless of what the parent wishes. California’s claim that the student must give consent apparently ignores the fact that minors are not legally capable of consenting to anything.
Let’s look at what the parent’s are complaining about:
Two of the parent plaintiffs, John and Jane Poe, have religious objections to gender transitioning but were not told by their daughter’s school when she began to present as a boy and use a male name and male pronouns during her seventh-grade year. In parent-teacher meetings, no one told the Poes about their daughter’s transitioning or referred to her using the male name and pronouns that were used at school.
Mirabelli v. Bonta – Vacate Order
This is called a lie of omission. Employees of the school, including their child’s teacher, failed to notify the parents of a serious mental condition their child was suffering from. While I cannot be certain, it seems quite reasonable that the condition suffered by the Poe’s daughter at least contributed to what happened next.
At the beginning of their daughter’s eighth grade year, she attempted suicide and was hospitalized. Only then did her parents learn from a doctor that she had gender dysphoria and had been presenting as a boy at school. Just months after being discharged, the Poes’ daughter was rehospitalized and held there involuntarily because she was at risk for self-harm.
Mirabelli v. Bonta – Vacate Order
Imagine finding out that your daughter is suffering from gender dysphoria. That has to be devastating to most parents, but to find out that the school has been hiding this from you must be infuriating.
But this is just one school, right?
At a new school in ninth grade, she once again began identifying as a boy. Contrary to the Poes’ instructions, teachers and school officials continued to use a male name and pronouns for their daughter, citing their obligations under California state law. The Poes have placed their daughter in therapy and obtained psychiatric care for her.
Mirabelli v. Bonta – Vacate Order
New school, same problem. Because this intentional deception was not a school policy, but state law.
Sadly, the Poes were not alone.
Like the Poes, plaintiffs John and Jane Doe object to gender transitioning, but since fifth grade, their daughter has sometimes identified as a boy. When their daughter was in seventh grade, the Does confronted the school principal about their daughter’s transitioning. They believed the school was using a male name and pronouns for their daughter behind their backs. The principal explained that state law prohibited the school from sharing information about a child’s transitioning with the child’s parents without the child’s consent.
Mirabelli v. Bonta – Vacate Order
California state law prohibits schools from discussing a child’s mental condition with parents? Sounds like a dystopian novel where the people are owned by the state. This law not only violates the most fundamental rights of the family, but endangers many students as well.
The Does believed that the risk of leaving their daughter in that school was too great, so they transferred their daughter to a new public school because sending her to a private school was financially and logistically infeasible. The Does have also placed their daughter in therapy.
Mirabelli v. Bonta – Vacate Order
The Does feel trapped in a public school system that has not only decided that they know how to raise children better than parents, but is willing to allow children to come to harm because of it. If parents treated their children with the same callous disregard for their safety, I bet the state would quickly send Child Protective Services to take the children away. I guess it’s only the state endorsed mental disorders that get protection.
And what is the teachers complaint?
The teachers object to their compelled participation in the implementation of the State’s policies.
Mirabelli v. Bonta – Vacate Order
California law compels teachers to lie to parents. That’s an abridgment of freedom of speech. Notice, I did not say a violation of the First Amendment.
First Amendment
Plaintiff’s claimed violations of their rights protected by the First and Fourteenth Amendments.
Relying on their own experiences and guidance documents issued by state officials, plaintiffs alleged that California’s policies permitted disclosure of a student’s gender transitioning at school only if the student consented. Plaintiffs claimed that these policies violated their rights under the Free Exercise Clause of the First Amendment and the Due Process Clause of the Fourteenth Amendment.
Mirabelli v. Bonta – Vacate Order
So why is a blatant violation of religious freedom not a violation of the First Amendment? Because the First Amendment reads:
Congress shall make no law respecting an establishment of religion…
U.S. Constitution, Amendment I
As has already been pointed out, the problem here is state law, not federal. Since Congress did not create this law, it cannot violate the First Amendment. It does, however, violate the Constitution of the State of California.
Free exercise and enjoyment of religion without discrimination or preference are guaranteed. This liberty of conscience does not excuse acts that are licentious or inconsistent with the peace or safety of the State. The Legislature shall make no law respecting an establishment of religion.
California Constitution, Article I, Section 4
It also violates the Fourteenth Amendment to the United States Constitution.
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law;
U.S. Constitution, Amendment XIV
This California law abridges the privileges and immunities of parents to control the upbringing of their children. It deprives the parents of the liberty to oversee the raising of their children without due process of law. Sounds pretty simple, correct? You might think that, but the way this case has traveled through the courts has been far from simple.
Inferior Courts
Like almost all federal cases, this one started in District Court.
This case began in the United States District Court for the Southern District of California in 2023 when two teachers sued seeking an exemption from their school district’s policies regarding students’ gender. During litigation, the school district claimed that state law, as interpreted by the California attorney general and Department of Education, required it to adopt these policies. So the teachers added state officials as defendants, and parents of California schoolchildren joined the lawsuit as plaintiffs.
Mirabelli v. Bonta – Vacate Order
This case didn’t start with the parents, but with two teachers. Parents joined the suit later. At first, things seemed to go well for the parents and teachers.
After discovery, the court granted summary judgment for all plaintiffs and entered a permanent injunction in their favor. The injunction prevents the schools from “misleading” parents about their children’s gender presentation at school and their social transitioning efforts. … It also requires the schools to follow parents’ directions regarding their children’s names and pronouns. And it compels defendants to include in state-created or approved instructional materials a notice of the rights protected by the injunction.
Mirabelli v. Bonta – Vacate Order
Big win for the parents. Schools were enjoined from “misleading” parents about their children’s gender presentation and it required the schools to follow parents’ instructions about names and pronouns. It even required the state to include notices of these protections in the instructional material. Then the Ninth Circuit stepped in to slow down the process.
The Ninth Circuit granted defendants’ motion to stay the injunction pending appeal. It began by raising procedural objections to the District Court’s injunction. It claimed that the District Court had granted class certification without undertaking the “‘rigorous analysis’” required by Federal Rule of Civil Procedure … And it stated that the injunction appeared to be overly broad because it “covers every parent of California’s millions of public school students and every public school employee in the state.” … As a result, it opined, the injunction seemed to grant relief to uninjured class members who lacked Article III standing.
Mirabelli v. Bonta – Vacate Order
Notice, the Ninth Circuit didn’t say that they thought the defendants had a chance of winning, only that they had technical issues with how the District Court went about the case.
Court Decision
Now we get to the Supreme Court decision. Remember, SCOTUS is not deciding the case or its merits, but only whether the Ninth Circuit made a mistake when they stayed the District Court’s injunction.
We grant the application and vacate the stay with respect to the parents because this aspect of the stay is not “justified under the governing four-factor test.”
Mirabelli v. Bonta – Vacate Order
The Court vacated the stay, but only in regards to the parents. Why? Because they claimed a technical issue with the Ninth Circuit’s decision.
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.”
Mirabelli v. Bonta – Vacate Order
As I’ve already pointed out, this case cannot violate the Free Exercise clause of the United States Constitution because Congress did not pass this law. While the law in question does violate the Free Exercise Clause of the California Constitution, federal courts have no jurisdiction over such matters. The free exercise claim may violate the Equal Protection Clause of the Fourteenth Amendment, since it treats the religious rights of parents as secondary to the state’s agenda. Keeping that in mind, consider the next part of the Court’s decision.
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.” … 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.
Mirabelli v. Bonta – Vacate Order
Notice, the court is not finding a constitutional issue based on the language of the Constitution. Rather, they claim a violation because of what the court has said in other cases.
The application to vacate the Ninth Circuit’s stay presented to JUSTICE KAGAN and by her referred to the Court is granted as to the parents but is otherwise denied.
JUSTICE THOMAS and JUSTICE ALITO would grant the application in full.
JUSTICE SOTOMAYOR would deny the application in full.
Mirabelli v. Bonta – Vacate Order
Dissent
While the decision was released per curiam, or “by the court,” meaning no one justice authored the decision, that doesn’t mean some of the justices didn’t have something to say. Justice Barrett wrote a concurring opinion which Justices Roberts and Kavanaugh joined. Also, Justices Thomas and Alito said they would have vacated the stay in regards to both the parents and teachers, while Justice Sotomayor would have denied the application in full. Justice Kagan wrote a dissent which Justice Jackson joined.
Today’s decision shows, not for the first time, how our emergency docket can malfunction. A case raising novel legal questions and arousing strong views comes to this Court via an application about whether to stay a district court’s injunction pending appeal.
Mirabelli v. Bonta – Vacate Order
What is the malfunction Justice Kagan believes this case exposes? That the denial of rights should be allowed to continue through the long and arduous appeals process? That children should continue to be groomed into an unhealthy lifestyle while the courts discuss technical details? As shown in this case, the harm caused by this California law to children is real, the harm to parents is real. As the saying goes, rights delayed are rights denied, which appears to be exactly what Justice Kagan thinks should happen.
And still, there is worse: The Court resolves the issues raised through shortcut procedures on the emergency docket even though it has had—for months now—the option of doing so the regular way, on our merits docket.
Mirabelli v. Bonta – Vacate Order
Except the court did not resolve the issue, only allowed an injunction to stand while the case itself goes through the appeals process. The purpose of the court’s emergency docket is to prevent ongoing harm, which is exactly what this decision did.
Conclusion
While the court’s decision is a good one, it is only the beginning; this case has not been decided. All the court has done is allow the District Court decision to remain in place. An appeals court could still overturn that decision, but they cannot stay the District Court injunction while they do it.
Once again we see the State of California claim that they control the children in their public schools, not the parents, that parents cannot be trusted, and need to be kept away from all critical decision about the upbringing of children. In short, the State of California has shown that they view a child’s parents as the enemy. I wonder where they learned that from?
The education of all children, from the moment that they can get along without a mother’s care, shall be in state institutions.
Karl Marx
It appears that not a single federal court can read the actual language of the First Amendment:
Congress shall make no law respecting an establishment of religion…
U.S. Constitution, Amendment I
That does not change the fact that it’s the supreme law of the land. It’s like when a test requires you to show your work. Well the court got the right answer, just for the wrong reasons. So how would you grade this decision?
