For parents, and for sanity. Today the Court issued a Per Curiam order granting a motion by parents to vacate a stay on an injunction ordered by a California district court. The stay had been imposed by the Ninth Circuit Court of Appeals.
The case arises out of a California law that requires schools to pursue gender transitions by children without notifying their parents. What that means in practice was outlined in today’s Order:
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. 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. 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.
Note that the Court refers to the child, correctly, as the Poes’ daughter.
In today’s Order, the Court finds that the parent plaintiffs are likely to prevail on their claim that the California law violates their rights under the Free Exercise Clause of the First Amendment and the Due Process Clause of the Fourteenth Amendment:
Under long-established precedent, parents—not the State—have primary authority with respect to “the upbringing and education of children.” Pierce v. Society of Sisters, 268 U. S. 510, 534–535 (1925); accord, Meyer v. Nebraska, 262 U. S. 390, 399–400 (1923). The right protected by these precedents includes the right not to be shut out of participation in decisions regarding their children’s mental health. Parham v. J. R., 442 U. S. 584, 602 (1979). Gender dysphoria is a condition that has an important bearing on a child’s mental health, but when a child exhibits symptoms of gender dysphoria at school, California’s policies conceal that information from parents and facilitate a degree of gender transitioning during school hours. These policies likely violate parents’ rights to direct the upbringing and education of their children.
This is, in short, a big win for common sense. Justice Barrett wrote a well-argued concurring opinion in which Justices Roberts and Kavanaugh joined. That opinion addressed the arguments by dissenting Justices Kagan and Jackson relating to application of the doctrine of substantive due process. Substantive due process has generated a longstanding controversy about which books can be, and have been, written. For better or worse, the doctrine is embedded in our jurisprudence, and liberals have never hesitated to use it when it served their interests.
The dissenters accused the majority of effectively deciding the case on a preliminary motion. They have a point, insofar as the criteria for granting a preliminary injunction include, and give priority to, the plaintiff’s likelihood of ultimate success on the merits. So cases can effectively be decided at a preliminary stage, without the usual extended briefing and consideration.
That happens, for example, in pretty much every instance where a Democratic Party district court judge has enjoined the Trump administration from carrying out the policies of the executive branch, based on a bogus finding that the plaintiffs, whoever they may be, are likely to succeed on the merits–often making such a finding without even waiting to hear the government’s position. So I am not greatly moved by Justice Kagan’s newfound concern for process. And in fact, in this case there was a full proceeding in the district court, and it was the Court of Appeals that imposed the stay on the district court’s order, on the basis of the test for preliminary relief.
The bottom line is that today’s decision is another nail in the coffin of far-left ideology, as it has emerged over the past few years.
