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.
