A federal court on Dec. 22 barred California public education officials from misleading parents about their children’s “gender presentation in school.” The court’s injunction bars officials from lying to parents, denying them access to their children’s school records, or designating a child by different pronouns or names at school than when speaking with parents.
Unlike many other injunctions that make the news, this one was not preliminary or temporary, but permanent. In other words, it ends the litigation unless California appeals.
The order, issued by Judge Roger T. Benitez, also prohibits school personnel from applying to the children of objecting parents any names other than their legal names or any pronouns other than those dating from birth. And the order guarantees the right of personnel to tell parents when their children are purportedly transitioning at school.
Particularly striking is the portion of Judge Benitez’s order requiring officials to distribute the following statement to school personnel:
The Fifth Amendment bars the federal government from depriving persons of “liberty … without due process of law.” The Fourteenth Amendment applies the same prohibition against the states. When these “Due Process Clauses” were adopted,
they meant this: When the government sues or prosecutes you, it must follow pre-existing procedures. It can’t make up the rules as it goes along.
Over a century ago, however, the Supreme Court began to extend the Due Process Clauses to protect certain other rights from government infringement. Because this involves examining the substance of a law and not merely procedure, it is called “
substantive due process.”
Substantive due process is controversial. It became prominent when supported in a side comment (“dictum”) by Chief Justice Roger Taney in the case of
Dred Scott v. Sandford (1857). That case is disreputable because of its ruling that an African-American can never be a citizen, and because it helped provoke the Civil War. Despite this origin, however, both conservative and liberal majorities on the Supreme Court have used substantive due process to void laws the justices think excessively interfere with the liberty of citizens.
Thus, early in the 20
th century, conservative justices protected economic liberties. Later, liberal justices demoted economic liberties, but protected abortion (in
Roe v. Wade, now overruled), a
right to pursue homosexual relationships, and a
right of same-sex couples to marry.
The court also reads the two Due Process Clauses to protect a constitutional right to direct the upbringing of one’s own children. The court first recognized this right in several cases decided during the 1920s. Two of these cases—
Meyer v. Nebraska (1923) and
Pierce v. Society of Sisters (1925)—are staples of the law school curriculum, and therefore known to all competent constitutional lawyers.
Since the 1920s, the court has applied the right in at least four other cases, decided in 1944, 1972, 1976, and 2000. Additionally, in 2022, it reaffirmed the validity of Meyer and Pierce.
Limits
The Supreme Court recognizes that parental rights are not absolute. There are two general limits.
The first limit is that the right does not include everything a parent might inflict on a child. It does not include gross physical abuse, denying basic education, or inculcating race hatred.
But it does protect the decisions that loving parents have traditionally made for their children, including inculcating
values and standards that the parents deem desirable. The Supreme Court tells us these include schooling decisions, such as whether a child will attend a public, religious, or non-religious private institution.
Although the court has not directly addressed parental decisions on sexual rearing, it almost certainly would protect them: Such decisions are even more tightly associated with home and parenthood than schooling decisions. After all, for eons, parents have taught boys “What it means to be a man,” “the facts of life,” and the responsibilities of manhood. Just as parents have taught girls about womanhood.
So there is little question that California’s policies invade parental rights as the Supreme Court has defined them. Because the Meyer and Pierce decisions are so famous, legal counsel doubtless warned the sponsors of these policies that what they were promoting almost certainly infringed parental rights. Presumably, the sponsors simply disregarded the warning.
The second general limit on constitutional parental rights is that sometimes the courts permit a state to intrude. But if a parent sues, the state bears a heavy burden in justifying its intrusion.
The Supreme Court
has not yet clarified how strong the state’s justification must be. The cases decided in the 1920s applied a standard of judicial review that legal scholars call “rational basis with bite.” That means (1) the state must prove a legitimate purpose for interfering with the parent-child relationship, and (2) the regulation must actually further that purpose and not be too broad.
Today, the state’s burden is probably even heavier than in the 1920s. Since that time, the court has said that the liberty of parents to raise their own children is not just any right—
it’s a fundamental right. Moreover, the court has raised the state’s burden for infringing a fundamental right to a tougher standard called “strict scrutiny.”
For California’s policies to survive strict scrutiny, the state attorney general would have to prove that (1) the state’s purpose in adopting them is not only legitimate but compelling, and (2) there is no other way to serve that purpose. Since those policies probably couldn’t pass muster under the “rational basis with bite” test, they certainly could not pass strict scrutiny.
All of which explains why Judge Benitez made the decision he did.
