I’m no fan of the 9th Circuit, but does anyone here really quarrel with its reasoning in this case?
People in our camp are forever pointing out that there is no generalized, uncircumscribable right to privacy in the Constitution. The parents in this case were claiming that the right that to privacy that the Courts have created — which has already been extended into a supposed “right to direct the upbringing and education of their children” — should now be morphed into both a “right to be the exclusive provider of information regarding sexual matters to their children,” and a “right to override the determinations of public schools as to the information to which their children will be exposed while enrolled as students.”
Where is any of that in the Constitution? I don’t understand the 9th Cir to be saying that the people of the State of California cannot democratically pass laws that confer these rights on parents by statute. All the 3-judge panel is saying is that these rights are not to be found in the Constitution.
Does anyone quarrel with that? I’m not being flip. I understand the equities argument here — i.e., that the courts are more than willing to go the extra mile to invent new constitutional rights as needed to advance a Leftist agenda but then become strict constructionists when substantive due process is resorted to in an effort to advance a socially conservative agenda. But isn’t the whole point that we don’t want the courts empowered to impose ANY agenda?