What To Know About SCOTUS’s Mirabelli Decision

Parents should be the ones raising their children. While this seems like common sense, public school boards across the country have cut parents out of a deeply vulnerable part of their kids’ lives. “Parental exclusion policies” direct school staff to affirm their students’ gender dysphoria by referring to children by whatever pronouns and names they request and to lie to parents who object.

While many legal challenges have been filed, the Supreme Court recently issued an opinion addressing these policies for the first time. In Mirabelli v. Bonta, a case from the emergency docket, the court recently held that California’s parental exclusion policy likely violates the First and 14th Amendments. This decision, while necessary and important in itself, offers broader insight into the justices’ minds and the future of the court. Here are three key takeaways from Mirabelli that go beyond this case.

Mahmoud v. Taylor Is as Important as We Thought

In Mahmoud v. Taylor, one of the Supreme Court’s biggest cases last term, a group of Catholic, Orthodox, and Jewish parents sued Montgomery County’s public school board after it forced sexually explicit materials on their children during English lessons. The school refused to provide any parental notification or the option to opt out of those classes. Teachers read kids (as young as 3 or 4 years old) books like Pride Puppy, which tells kindergarteners to look for drag queens and underwear while the main character searches for her lost dog at a “pride” parade. The court ruled in the parents’ favor and held that removing their ability to opt their kids out of such lessons violated their right to religious free exercise.

Since Mahmoud was decided so recently, lower courts are still discerning how to understand and apply it as precedent. Illustrating this point in her dissent in Mirabelli, Justice Elena Kagan wrote that “the ink on that decision [Mahmoud] is barely dry, and courts have just begun to consider its meaning and reach.” Today, judges have to interpret Mahmoud’s reach — is it binding in all circumstances, or is it an extraordinary ruling in a niche set of circumstances? The books being read to kids were deeply ingrained as part of the school’s curriculum. If a challenged activity is non-curricular, lower courts may think that Mahmoud’s logic doesn’t apply.

Thankfully, half of the majority’s decision in Mirabelli relies on the precedent set by Mahmoud. It expressly corrects the lower court’s choice to “brush[] aside Mahmoud v. Taylor as a ‘narrow decision focused on uniquely coercive “curricular requirements.”’” In so doing, Mirabelli signals to lower courts that Mahmoud should be applied broadly; it really is the game-changer that parents were hoping it would be.

This opinion clarifies that the court’s decision last year was not just about extremism in English lessons. Rather, it was about the protection that the First Amendment offers to religious parents when the government tries to replace their beliefs with the state’s preferred ideology.

Justices Acknowledge the Dangers of Substantive Due Process

Two related but distinct groups of parents and teachers brought Mirabelli; one group argued from a religious perspective. They claimed that the free exercise clause protected their right to direct the religious upbringing of their children. The other class, however, did not seek out First Amendment protections, but rather argued that the state’s parental exclusion policies violated their right to substantive due process.

Substantive due process has a complex history. Many originalists and conservatives, especially Justice Clarence Thomas, criticize it for enabling judges to act as legislators. Although their efforts have since been overturned, living constitutionalists have applied SDP to enshrine a right to abortion in Roe v. Wade and “to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

As relevant to Mirabelli, the Supreme Court has repeatedly held that substantive due process constitutionally protects the right to raise your children and direct their medical care (which includes mental health treatment). Since California’s policy contravenes that right, it cannot stand judicial scrutiny. This secures victory in Mirabelli for the parents who didn’t have a religious reason to object to the parental exclusion policy.

While not among its ardent critics, Justice Amy Coney Barrett (joined by Justices John Roberts and Brett Kavanaugh) wrote a concurrence in Mirabelli acknowledging the dangers of substantive due process. Her concurrence rightly notes that “substantive due process asks us to find unexpressed rights in a constitutional provision that guarantees only ‘process.’” However, as Barrett writes, since SDP is largely treated as settled law, the concurring justices maintain stare decisis and agree that the 14th Amendment controls in this case.

Perhaps unsurprisingly, Kagan (joined by Justice Ketanji Brown Jackson) dissented in Mirabelli. What’s more of a shock is that she likewise alluded to the disordinate power that substantive due process gives to members of the bench. While attempting to make a (misguided) attack on the majority for its supposed inconsistency in applying SDP, Kagan correctly wrote that “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.’” She quickly moved to voice her support for the legal theory, at least in the abstract. But her observation is inescapable — a law that exists only to protect procedural rights is routinely invoked to assert unrelated substantive constitutional rights.

This is not to say that parental rights should not be afforded serious protection by the courts under the Constitution. The founders likely felt it unnecessary to clarify that the government doesn’t raise kids, but that parents do, because there was no real threat of overzealous and ideologically driven school administrators attempting to supplant mothers and fathers in the late 1700s. However, other sound methods to assert parental rights under American law exist. For example, Thomas has long argued that the privileges and immunities clause is a much more legally accurate method to ensure that rights we know exist but are not written anywhere are still protected.

While the court ruled simply in Mirabelli that substantive due process as currently practiced protects the rights of parents to raise their children, which includes being involved with their mental health treatment at school, reading between the lines shows that there is still much debate about SDP’s viability.

Gender Dysphoria Necessitates Parental Intervention

Mirabelli was on the court’s emergency docket for good reason. The children affected by this case are in highly unstable mental conditions and are being pulled in different directions by authority figures. Their parents understand that irreversible experiments on young people will not address their underlying mental health crises. On the other hand, their public schools have been so infected by transgender ideology that they push kids to lie to their parents and affirm a mental illness.

One of the children in this case attempted suicide, and only then were her parents brought into the loop. Few things require faster resolution than the precarious health of a young person who doesn’t know who he is.

Fortunately, the majority affirmed the fact that gender dysphoria is a serious mental condition that requires medical and parental intervention. The opinion acknowledges that prohibiting California from carrying out its abusive and deceptive policy “promotes child safety by guaranteeing fit parents a role in some of the most consequential decisions in their children’s lives.”

The legal analysis matters, but at the end of the day the issue at hand is whether kids can have their parents by their side when they’re suffering. No child should ever have to experience the anxiety and fear that often accompany gender dysphoria, much less be manipulated by activists and cut off from his parents. While Mirabelli offers important signals regarding the state of our highest court, its most important effect is making sure that vulnerable kids are not abandoned to the state.

Joseph Clement is the content and program manager at Napa Legal Institute, a Catholic organization that supports the work of faith-based nonprofits and attorneys. He has written on the Supreme Court, religious liberty, and nonprofit law.