SCOTUS kicks the can down the road on parental rights

In 1925, in Pierce v. Society of Sisters of the Holy Name of Jesus and Mary, the Supreme Court upheld the rights of faith-based schools to operate along with those of parents to direct the education and upbringing of their children. While Pierce remains the standard governing faith-based schools, its viability concerning parental rights is debatable in disputes involving minor children claiming to be transgender.

In Pierce, officials of a Catholic school and the Hill Military Academy challenged Oregon’s new compulsory attendance statute. Motivated in part by anti-Catholic bias, the law directed parents of children between the ages of eight and sixteen, other than those needing what is now called special education, to send them to public schools.

After the federal trial, Oregon prevented the statute from taking effect; the Justices unanimously affirmed in favor of the owners because enforcing it would have undermined their ability to run their schools while greatly diminishing the value of their property.

Turning to parental rights, the Pierce Court famously reasoned that “[t]he child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” The Justices thereby invalidated the statute for “unreasonably interfere[ing] with the liberty of parents and guardians to direct the upbringing and education of children under their control.”

Advocates have relied on Pierce in advancing parental rights to educational choice, culminating in cases granting increased aid to students and their faith-based schools. For example, in 2022 in Carson v. Makin. the Supreme Court invalidated a Maine statute excluding “sectarian,” or faith-based, schools from a program providing tuition payments to parents for students who lived in districts lacking secondary schools because it was neither neutral toward religion nor, echoing Pierce, did it protect parental rights to choose where their children attended school. In a related case, officials in a faith-based school in Maine are challenging a change in the law that denies the school the ability to participate in the program because of its beliefs about sexual orientation and gender identity.

At the same time, controversy rages over parental rights as courts stand Pierce on its ear in disputes over the rights of parents to be informed about and address situations arising when their minor children living at home claim to be transgender. For instance, Christian parents in Montana allegedly lost custody of, and contact with, their fourteen-year-old daughter who experienced mental health issues and a desire for attention because “their “values, morals, and…religious beliefs” prevented them from allowing her to undergo experimental transitioning medicalization. It is astounding that minors who cannot typically accept so much as an aspirin from school nurses without approval can be subjected, without parental consent, to potentially life-alerting treatments for which they are likely unprepared.

In non-religion-based disagreements, fathers in New York and California lost custody of their now eight- and five-year-old sons, respectively, for refusing to consent to allowing their ex-wives to transition their children or to affirm their supposed gender identities. Conversely, a court in California upheld a board policy requiring educational officials to notify parents if their children wish to be identified by a gender other than what is listed on their official birth records.

In M.C. and J.C. v. Indiana Department of Child Services, a high profile case I recently discussed here at CWR, litigation arose after an anorexic, then sixteen-year-old (now adult) son (“A.C.”) informed his Roman Catholic parents he identified as female. The parents objected because they believe God creates each person as immutably male or female and that raising children according to their biological sexes is best for them. An appellate court affirmed that even though the parents were fit, A.C. could be removed from home and placed in foster care—barring them from even discussing A.C.’s transgender identity during visitations.

In a blow to parental rights, on March 18, 2024, the Supreme Court rejected the parents’ appeal in M.C. and J.C., without commenting or explaining why. Refusing to clarify parental rights, the Justices essentially kicked the can down the road, not explaining whether they refused to intervene because A.C. is now over eighteen and emancipated or they did not view the issue as “ripe” for review.

The upshot is that parents may now be left at the mercy of educators who interfere with their fundamental, God-given right to care for their young, impressionable children, denying them the opportunity to share their Christian beliefs as they deem fit.

Hopefully, when dealing with the rapidly changing and often incoherent landscape of current sexual morality, courts and legislatures will re-affirm parental rights to direct the upbringing and educations of their young children, which Pierce eloquently addressed. Judges and lawmakers must resolve whether, and under what circumstances (if any), educators and public officials may intervene or if parents, absent proof of unfitness, remain the primary caregivers of their minor children, until they are free to live independently and make their own life choices.