CJ court watch - Freedom of Religion and Substantive Due Process case
The Supreme Court decided an important case on Mon, 2mar26. The case is still in litigation in the 9th Circuit Court of Appeals.
The Court decided Mirabelli v. Bonta, 607 U. S. __ (2026) by 7 - 2. J.J. Kagan and Jackson dissented.
Teachers and parents in southern California sued school districts because the schools were hiding kids’ gender dysphoria from the parents. The U.S. District Court for the Southern District of California granted judgment for the teachers and parents and against the state. The state appealed to the 9th Cir, and that court stayed the orders of the District Court. The Supreme Court then reversed that stay on Monday.
The opinion had a lot of legal minutiae about standards for granting and vacating temporary orders. The Court did make some useful statements about religious freedom and parental rights.
We grant the application and vacate the stay with respect to the parents because this aspect of the stay is not “justified under the governing four-factor test.” Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. 758, 763 (2021) ***
Likelihood of success on the merits. We conclude that the parents who seek religious exemptions are likely to succeed on the merits of their Free Exercise Clause claim. California’s policies likely trigger strict scrutiny under that provision because they substantially interfere with the “right of parents to guide the religious development of their children.” Mahmoud, 606 U. S., at 559 (citing Wisconsin v. Yoder, 406 U. S. 205 (1972)). The parents who assert a free exercise claim have sincere religious beliefs about sex and gender, and they feel a religious obligation to raise their children in accordance with those beliefs. California’s policies violate those beliefs and “impos[e] the kind of burden on religious exercise that Yoder found unacceptable.” 606 U. S., at 550. Indeed, 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. See id., at 563.***
The same is true for the subclass of parents who object to
those policies on due process grounds. Under long-established precedent, parents—not the State—have primary
authority with respect to “the upbringing and education of
children.” Pierce v. Society of Sisters, 268 U. S. 510, 534–
535 (1925); accord, Meyer v. Nebraska, 262 U. S. 390, 399–
400 (1923). The right protected by these precedents includes the right not to be shut out of participation in decisions regarding their children’s mental health. Parham v. J. R., 442 U. S. 584, 602 (1979). Gender dysphoria is a condition that has an important bearing on a child’s mental health, but when a child exhibits symptoms of gender dysphoria at school, California’s policies conceal that information from parents and facilitate a degree of gender transitioning during school hours. These policies likely violate parents’ rights to direct the upbringing and education of their children.
Irreparable harm. The denial of plaintiffs’ constitutional rights during the potentially protracted appellate process constitutes irreparable harm. Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U. S. 14, 19 (2020) (per curiam).
Balance of equities. Finally, the “equities do not justify depriving [the parents] of the District Court’s judgment in their favor.” Alabama Assn. of Realtors, 594 U. S., at 765. Everyone agrees that children’s safety is the overriding equity. And the injunction here promotes child safety by guaranteeing fit parents a role in some of the most consequential decisions in their children’s lives. The injunction also permits the State to shield children from unfit parents by enforcing child-abuse laws and removing children from parental custody in appropriate cases.***
J. Barrett concurred
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. U. S. Const., Amdt. 14, §1. 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.”*** 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****