Yesterday in Mirabelli v. Bonta, the Supreme Court put on hold California’s law requiring public schools to secretly transition children without their parents’ knowledge. The state had adopted policies directing public schools to socially transition children to a different gender identity—using different names and pronouns—without ever telling their parents. Not only were mom and dad kept in the dark, but under state guidance, schools were effectively prohibited from notifying them unless the child consented. Educators who had religious or moral objections to participating in this regime were compelled to comply anyway.
The Southern District of California entered a permanent injunction on behalf of the plaintiff parents and teachers, who challenged the policies under both the Free Exercise Clause and the Fourteenth Amendment’s Due Process Clause. The liberal Ninth Circuit, true to form, stepped in to stay that injunction pending appeal. In the process, it disregarded the recent landmark decision in Mahmoud v. Taylor, which protected the “right of parents to guide the religious development of their children” under the Free Exercise Clause.
By a 6–3 vote, the Supreme Court vacated the Ninth Circuit’s stay with respect to the parents, thoroughly dismantling California’s position in the process. The majority asserted in an unsigned opinion that “the intrusion on parents’ free exercise rights here—unconsented facilitation of a child’s gender transition—is greater than the introduction of LGBTQ storybooks we considered sufficient to trigger strict scrutiny in Mahmoud.” And “California’s policies will likely not survive the strict scrutiny that Mahmoud demands.” The Court made a similar assessment with respect to due process claims under older precedents going back to Pierce v. Society of Sisters (1925) and Meyer v. Nebraska (1923): California’s “policies likely violate parents’ rights to direct the upbringing and education of their children.”
Justice Barrett, joined by Chief Justice Roberts and Justice Kavanaugh, separately wrote in a concurring opinion an explanation of the substantive due process precedents and the “demanding test for recognizing unexpressed rights: They must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’” That language from Washington v. Glucksberg (1997) limits the scope of unenumerated rights and is supposed to serve as a check against judges using the doctrine to shoehorn their pet causes into the Constitution. And while a dissent by Justice Kagan joined by Justice Jackson expresses a “strong sense of whiplash” given Dobbs v. Jackson Women’s Health Organization (2022), her protest comes off as contrived. Though it’s true that Justice Thomas’ Dobbs concurrence rightfully criticized substantive due process, that wasn’t the Court’s holding in Dobbs.
Barrett’s Mirabelli concurrence acknowledges that the majority of the Court is still willing to apply those precedents. And that clause isn’t the only basis for many of the rights that the Court has discussed in the context of substantive due process—as Thomas has written, the Fourteenth Amendment’s Privileges or Immunities Clause encompasses many of those same rights. Scholars can debate whether unenumerated rights should be recognized under the Fourteenth Amendment’s Due Process or Privileges or Immunities Clause, but the historically well-grounded right of parents to direct their children’s upbringing will still be with us, and is alive and well in yesterday’s decision.
Mirabelli is an important victory. Its reaffirmation of the principles of the Court’s landmark ruling in Mahmoud, besides adding to recent victories for religious freedom, should stand as a warning to school officials to think twice before trying to override parental authority over their children’s development.