Justices Debate Substantive Due Process Again, This Time in Parental Rights / Gender Transition Concealment Case

Today’s unsigned majority opinion in Mirabelli v. Bonta held that California policies that “prevent schools from telling them about their children’s efforts to engage in gender transitioning at school unless the children consent to parental notification” and “require[] that schools use children’s preferred names and pronouns regardless of their parents’ wishes” violate parental rights, which are a facet of the “substantive due process” doctrine. It also held that the policies violate religious parents’ Free Exercise Clause rights, but that would have only protected parents who have religious objections to the policies; the substantive due process argument protects all parents. (For more, see this post.)

Justice Barrett, joined by Chief Justice Roberts and Justice Kavanaugh, added this:

As the dissent observes, substantive due process is a controversial doctrine. Judges typically interpret express constitutional rights, such as the freedom of speech or religion. But substantive due process asks us to find unexpressed rights in a constitutional provision that guarantees only “process” before a person is deprived of life, liberty, or property. When rights are unstated, how do judges know what they are? The obvious risk is that judges will use their own values as a guide, thereby jeopardizing the People’s right to self-governance.

To mitigate this risk, the Court has crafted a 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.” Washington v. Glucksberg (1997). Relevant here, the doctrine of substantive due process has long embraced a parent’s right to raise her child, which includes the right to participate in significant decisions about her child’s mental health. See Pierce v. Society of Sisters (1925); Meyer v. Nebraska (1923); Parham v. J.R. (1979)….

The dissent questions how the Court can adhere to parental-rights precedent after its decision in Dobbs v. Jackson Women’s Health Organization (2022). But Dobbs calls into question neither the doctrine of substantive due process nor the other unexpressed rights that the doctrine protects. Applying Glucksberg, Dobbs holds that Roe v. Wade (1973), and Planned Parenthood of Southeastern Pa. v. Casey (1992), were incorrectly decided because a right to abortion is not “‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.'” Dobbs, 597 U. S., at 231. And because the Court concluded that the stare decisis factors counseled against retaining these cases, Dobbs overruled them. It does not follow from Dobbs that all our substantive due process cases conflict with Glucksberg, much less that stare decisis would counsel overruling any that do.

No party to this dispute questions the continued validity of Meyer, Pierce, or Parham. For all its concerns about deciding the issue in this posture, the dissent expresses “no doubt that parents have rights, even though unenumerated, concerning their children and the life choices they make.” And the precedent recognizing those rights controls our assessment of whether the parents are likely to succeed on the merits….

Justice Kagan, joined by Justice Jackson, dissented:

[T]he District Court … ruled on substantive due process grounds [as well as Free Exercise Clause grounds], finding a parental right to “direct the upbringing and medical care of their children.” … This Court, to affirm the relief given, must follow the same course: It explains that the State’s policy “excludes parents” from “participation in decisions regarding their children’s mental health.”. But the very phrasing the Court uses betrays the delicateness of the operation: Even in recognizing that parental right, the Court cannot quite bring itself to name the legal doctrine—it is, again, substantive due process—that provides the right’s only basis.

Anyone remotely familiar with recent debates in constitutional law will understand why: Substantive due process has not been of late in the good graces of this Court—and especially of the Members of today’s majority. The Due Process Clause, needless to say, does not expressly grant parental rights of any kind. The relevant text bars a State only from depriving a person of “liberty” “without due process of law.”

Members of the majority often have expressed skepticism—sometimes outright hostility—to understanding the “capacious” term “liberty” to enshrine specific rights. Dobbs. Substantive due process, one has stated, is a “particularly dangerous” “legal fiction” because it “invites judges” to “roa[m] at large in the constitutional field guided only by their personal views.” McDonald v. Chicago (2010) (Thomas, J., concurring in part and concurring in judgment); Obergefell v. Hodges, (2015) (Thomas, J., dissenting). {For that reason, Justice Thomas has called for overruling “all” of this Court’s “substantive due process precedents.” That invitation presumably extends to the [parental rights] precedents ….}

Another has pointed to the “judicial misuse of the so-called ‘substantive component’ of due process to dictate policy on matters that belonged to the people to decide.” Sessions v. Dimaya (2018) (Gorsuch, J., concurring in part and concurring in judgment). And yet a third, when defending the Court’s elimination of a 50-year-old right grounded in substantive due process, explained that the “Constitution does not grant the nine unelected Members of this Court the unilateral authority to rewrite the Constitution.” Dobbs (Kavanaugh, J., concurring).

There are many such statements to choose from in this Court’s recent substantive due process caselaw. Especially given the Court’s last venture into the field, today’s decision cannot but induce a strong sense of whiplash. Compare [the majority opinion here] (recognizing a parent’s right to make important decisions about her child’s health), with Dobbs (repudiating a woman’s right to make important decisions about her own health).

None of this is to say that the Court gets the merits here wrong…. I have no doubt that parents have rights, even though unenumerated, concerning their children and the life choices they make. On the other side of ledger, of course, a State has critical interests in the care and education of children. But California’s policy, in depriving all parents of information critical to their children’s health and well-being, could have crossed the constitutional line. And that would entitle the parents, at the end of the day, to relief….