Holding Court is a series by retired Rye City Court Judge Joe Latwin. Latwin retired from the court in December 2022 after thirteen years of service to the City.
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By Joe Latwin
Last week I wrote about three Supreme Court cases not expecting a significant one to follow so soon after. It did. The new case goes to fundamental issues, not only of government, but of society itself. Significantly, the case was not a final determination on its merits, rather an interlocutory decision on procedural grounds.
California adopted policies that prevent schools from telling parents about their children’s efforts to engage in gender transitioning at school unless the children consent to parental notification and required that schools use children’s preferred names and pronouns regardless of their parents’ wishes. Parents and teachers sued claiming that California’s policies violate their rights under the Free Exercise Clause of the First Amendment and the Due Process Clause of the Fourteenth Amendment. The teachers also object to their compelled participation in the implementation of the State’s policies.
Two of the parents have religious objections to gender transitioning but were not told by their daughter’s school when she began to present as a boy and used a male name and male pronouns during her seventh-grade year. In parent-teacher meetings, no one told the parents 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.
Under English Common Law, the State has traditionally been able to step in to protect those unable or incapable of protecting themselves. Within those categories to be protected are minors incapacitated adults, and the public at large. This doctrine is called Parens Patriae – parents of the country. It allows the state to act as a guardian for those unable to protect themselves.
The federal district court granted summary judgment for all plaintiffs and entered a permanent injunction in their favor. The district court’s injunction prevented 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. On appeal, the Ninth Circuit granted defendants’ motion to stay the injunction pending appeal. The Supreme Court granted plaintiff-parents’ application to vacate the stay since the stay was not “justified under the governing four-factor test” – Likelihood of success on the merits; Irreparable harm; Balance of equities; and
Under long-established precedent, parents—not the State—have primary authority with respect to “the upbringing and education of children.” The right protected by the precedents includes the right not to be shut out of participation in decisions regarding their children’s mental health. 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 substantially interfere with the “right of parents to guide the religious development of their children.” 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 impose the kind of burden on religious exercise.
The Court said denial of plaintiffs’ constitutional rights during the potentially protracted appellate process constitutes irreparable harm and the “equities do not justify depriving the parents of the District Court’s judgment in their favor.” Everyone agreed that children’s safety is the overriding equity and the injunction promotes child safety by guaranteeing fit parents a role in some of the most consequential decisions in their children’s lives. The injunction also permits the State to shield children from unfit parents by enforcing child-abuse laws and removing children from parental custody in appropriate cases.
The issues remain – are children to be raised by state legislators or their parents? What roles do parents play? Do we really want the government to parent our children? Could the school system provide abortions to students without consent or even notification to parents? If governments take over parental rights and duties, will the government provide child support or be liable for the ill effects of its decisions? What role should the child play? Do they get a say?
