Mirabelli v. Bonta

P R E L I M I N A R Y P R I N T
Volume 607 U. S. Part 2
Pages 492–508
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
March 2, 2026
REBECCA A. WOMELDORF
reporter of decisions
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N O T I C E : This preliminary print is subject to formal revision before
the bound volume is published. Users are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington, D. C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.

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492 OCTOBER
TERM, 2025
Per Curiam
MIRABELLI et al. v. BONTA, ATTORNEY GENERAL
OF
CALIFORNIA, et al.
on application to vacate interlocutory stay order
No. 25A810. Decided March 2, 2026
Invoking the Free Exercise Clause and Due Process Clause, parents of
California public schoolchildren and teachers in the California public
school system brought this challenge to a set of statewide student gen-
der policies. Under these policies, school employees must refer to stu-
dents by their preferred name and pronouns, and school employees must
obtain the child's consent before disclosing the child's gender identity to
his or her parents. The District Court permanently enjoined enforce-
ment of these policies. The Ninth Circuit stayed the injunction pend-
ing appeal.
Held: As to the parents, the application to vacate the Ninth Circuit's stay
is granted because the stay is not justifed under the governing four-
factor test. See Alabama Assn. of Realtors v. Department of Health
and Human Servs., 594 U. S. 758 (per curiam). The parents are likely
to succeed on the merits of their free exercise claim. California's poli-
cies likely trigger strict scrutiny because they substantially interfere
with the “right of parents to guide the religious development of their
children.” Mahmoud v. Taylor, 606 U. S. 522, 559. The policies likely
fail strict scrutiny because they cut out the primary protectors of chil-
dren's best interests: their parents. The parents who object on due
process grounds are also likely to succeed on the merits. 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. The denial of plaintiffs' con-
stitutional rights is irreparable harm. See Roman Catholic Diocese of
Brooklyn v. Cuomo, 592 U. S. 14, 19 (per curiam). And the equities—
the most important of which is child safety—favor the parents.
Application granted in part and denied in part.
Per Curiam.
Before us is an application to vacate a Court of Appeals
order staying a permanent injunction entered by a District
Court on behalf of parents and teachers who claim that cer-
tain California policies violate their rights under the Free
Exercise Clause of the First Amendment and the Due Proc-

Cite
as: 607 U. S. 492 (2026)
493
Per Curiam
ess Clause of the Fourteenth Amendment. The parents ob-
jec
t that these policies prevent schools from telling them
about their children's efforts to engage in gender transition-
ing at school unless the children consent to parental notifca-
tion. The parents also take issue with California's require-
ment that schools use children's preferred names and
pronouns regardless of their parents' wishes. The teachers
object to their compelled participation in the implementation
of the State's policies.
I
This case began in the United States District Court for
the Southern District of California in 2023 when two teach-
ers sued seeking an exemption from their school district's
policies regarding students' gender. During litigation, the
school district claimed that state law, as interpreted by the
California attorney general and Department of Education,
required it to adopt these policies. So the teachers added
state offcials as defendants, and parents of California school-
children joined the lawsuit as plaintiffs. Relying on their
own experiences and guidance documents issued by state of-
fcials, plaintiffs alleged that California's policies permitted
disclosure of a student's gender transitioning at school only if
the student consented. Plaintiffs claimed that these policies
violated their rights under the Free Exercise Clause of the
First Amendment and the Due Process Clause of the Four-
teenth Amendment.
Two of the parent plaintiffs, John and Jane Poe, have reli-
gious objections to gender transitioning but were not told by
their daughter's school when she began to present as a boy
and use a male name and male pronouns during her seventh-
grade year. In parent-teacher meetings, no one told the
Poes about their daughter's transitioning or referred to her
using the male name and pronouns that were used at school.
At the beginning of their daughter's eighth-grade year, she
attempted suicide and was hospitalized. Only then did her
parents learn from a doctor that she had gender dysphoria
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494 MIRABEL
LI v. BONTA
Per Curiam
and had been presenting as a boy at school. Just months
af
ter being discharged, the Poes' daughter was rehospital-
ized and held there involuntarily because she was at risk for
self-harm. At a new school in ninth grade, she once again
began identifying as a boy. Contrary to the Poes' instruc-
tions, teachers and school offcials continued to use a male
name and pronouns for their daughter, citing their obliga-
tions under California state law. The Poes have placed their
daughter in therapy and obtained psychiatric care for her.
Like the Poes, plaintiffs John and Jane Doe object to gen-
der transitioning, but since ffth grade, their daughter has
sometimes identifed as a boy. When their daughter was in
seventh grade, the Does confronted the school principal
about their daughter's transitioning. They believed the
school was using a male name and pronouns for their daugh-
ter behind their backs. The principal explained that state
law prohibited the school from sharing information about a
child's transitioning with the child's parents without the
child's consent. The Does believed that the risk of leaving
their daughter in that school was too great, so they trans-
ferred their daughter to a new public school because sending
her to a private school was fnancially and logistically infeasi-
ble. The Does have also placed their daughter in therapy.
In 2025, defendants asserted that the guidance documents
on which plaintiffs had relied were no longer operative and
that the claims against certain state defendants should be
dismissed as moot. But the State had promulgated a new
required training curriculum that similarly directed teachers
not to tell parents about their children's gender identity
without the children's consent. Defendants then withdrew
their mootness argument, and the District Court declined to
impose sanctions.
Later, plaintiffs sought classwide relief, and the District
Court certifed a class with separate subclasses for parents
and teachers. One subclass of parents comprises all those

Cite
as: 607 U. S. 492 (2026)
495
Per Curiam
who object to the challenged policies, while a separate sub-
class
is limited to those who seek a religious exemption.
App. to Emergency Application 90a (App.). Two similar
subclasses of teachers were also certifed. Id., at 89a–90a.
After discovery, the court granted summary judgment for
all plaintiffs and entered a permanent injunction in their
favor. The injunction prevents the schools from “mislead-
ing ” parents about their children's gender presentation at
school and their social transitioning efforts. Id., at 24a. It
also requires the schools to follow parents' directions regard-
ing their children's names and pronouns. And it compels
defendants to include in state-created or approved instruc-
tional materials a notice of the rights protected by the
injunction.
The Ninth Circuit granted defendants' motion to stay the
injunction pending appeal. It began by raising procedural
objections to the District Court's injunction. It claimed
that the District Court had granted class certifcation with-
out undertaking the “ `rigorous analysis' ” required by Fed-
eral Rule of Civil Procedure 23. App. 7a (quoting Wal-Mart
Stores, Inc. v. Dukes, 564 U. S. 338, 351 (2011)). And it
stated that the injunction appeared to be overly broad be-
cause it “covers every parent of California's millions of public
school students and every public school employee in the
state.” App. 6a. As a result, it opined, the injunction
seemed to grant relief to uninjured class members who
lacked Article III standing.
The Ninth Circuit also expressed doubts about the District
Court's decision on the merits. On the free exercise issue,
it relied on a not-precedential Sixth Circuit decision and
brushed aside Mahmoud v. Taylor, 606 U. S. 522 (2025), as
“a narrow decision focused on uniquely coercive `curricular
requirements.' ” App. 10a–11a (citing Doe No. 1 v. Bethel
Local School Dist. Bd. of Educ., 2025 WL 2453836, *7 (CA6,
Aug. 26, 2025)). The Ninth Circuit expressed skepticism
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496 MIRABEL
LI v. BONTA
Per Curiam
about the parents' and teachers' Fourteenth Amendment due
process
claim because it viewed those claims as seeking to
expand the protection afforded by established precedent.
When the Ninth Circuit stayed the injunction, the parents
and teachers fled this application seeking vacatur of the
Ninth Circuit's stay pending appeal.
II
We grant the application and vacate the stay with respect
to the parents because this aspect of the stay is not “justifed
under the governing four-factor test.” Alabama Assn. of
Realtors v. Department of Health and Human Servs., 594
U. S. 758, 763 (2021) (per curiam) (citing Nken v. Holder, 556
U. S. 418, 434 (2009)).
Likelihood of success on the merits. We conclude that
the parents who seek religious exemptions are likely to suc-
ceed on the merits of their Free Exercise Clause claim. Cal-
ifornia's policies likely trigger strict scrutiny under that pro-
vision 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 con-
sidered suffcient to trigger strict scrutiny in Mahmoud.
See id., at 563.
California's policies will likely not survive the strict scru-
tiny that Mahmoud demands. The State argues that its
policies advance a compelling interest in student safety and
privacy. But those policies cut out the primary protectors
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as: 607 U. S. 492 (2026)
497
Per Curiam
of children's best interests: their parents. See Troxel v.
G
ranville, 530 U. S. 57, 68–69 (2000) (plurality opinion).
California's policies also appear to fail the narrow-tailoring
requirement. The State's interest in safety could be served
by a policy that allows religious exemptions while precluding
gender-identity disclosure to parents who would engage in
abuse. For these reasons, the parents who object to the
California policies on free exercise grounds are likely to suc-
ceed on the merits.
The same is true for the subclass of parents who object to
those pol icies on due process grounds. Under long-
established precedent, parents—not the State—have pri-
mary authority with respect to “the upbringing and educa-
tion 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 in-
cludes the right not to be shut out of participation in deci-
sions regarding their children's mental health. Parham v.
J. R., 442 U. S. 584, 602 (1979). Gender dysphoria is a condi-
tion 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 eq-
uity. And the injunction here promotes child safety by
guaranteeing ft parents a role in some of the most conse-
quential decisions in their children's lives. The injunction
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498 MIRABEL
LI v. BONTA
Barrett, J., concurring
also permits the State to shield children from unft parents
by
enforcing child-abuse laws and removing children from
parental custody in appropriate cases.
III
The Ninth Circuit's procedural objections to the injunction
are unlikely to prevail.
First, the parents protected by the injunction very likely
have standing because they are objects of the challenged ex-
clusion policies. See Diamond Alternative Energy, LLC v.
EPA, 606 U. S. 100, 114 (2025). Contrary to the Ninth Cir-
cuit's suggestion, the injunction does not provide relief for
all the parents of California public school students, but only
for those parents who object to the challenged policies or
seek religious exemptions.
Second, class certifcation was likely proper. The District
Court addressed the requirements for certifcation under
Rule 23 and explained why it concluded that they were met.
***
The application to vacate the Ninth Circuit's stay pre-
sented to Justice Kagan and by her referred to the Court
is granted as to the parents but is otherwise denied.
Justice Thomas and Justice Alito would grant the ap-
plication in full.
Justice Sotomayor would deny the application in full.
Justice Barrett, with whom The Chief Justice and
Justice Kavanaugh join, concurring.
As the dissent observes, substantive due process is a con-
troversial doctrine. Judges typically interpret express con-
stitutional rights, such as the freedom of speech or religion.
But substantive due process asks us to fnd unexpressed
rights in a constitutional provision that guarantees only
“process” before a person is deprived of life, liberty, or prop-
erty. U. S. Const., Amdt. 14, § 1. When rights are un-
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as: 607 U. S. 492 (2026)
499
Barrett, J., concurring
stated, how do judges know what they are? The obvious
r
isk 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,
521 U. S. 702, 721 (1997) (internal quotation marks omitted).
Relevant here, the doctrine of substantive due process has
long embraced a parent's right to raise her child, which in-
cludes the right to participate in signifcant decisions about
her child's mental health. See Pierce v. Society of Sisters,
268 U. S. 510 (1925); Meyer v. Nebraska, 262 U. S. 390 (1923);
Parham v. J. R., 442 U. S. 584 (1979).
The parent-applicants are likely to succeed on the merits
under a straightforward application of these cases. Califor-
nia prohibits its public schools from informing parents of
their child's gender transition at school unless the child con-
sents. The record in this case indicates that the State's non-
disclosure policy applies even if parents expressly ask for
information about their child's gender identifcation. One
set of parents learned of their child's transition at school only
after the child attempted suicide. Strikingly, even after this
tragic event, school administrators continued to withhold in-
formation about the student's gender identifcation. Califor-
nia's nondisclosure policy thus quite obviously excludes par-
ents from highly important decisions about their child's
mental health, see Parham, 442 U. S., at 601–604, and is un-
likely to satisfy heightened scrutiny. Our resolution of the
parents' likelihood of success on this claim is dictated by ex-
isting law.
The dissent questions how the Court can adhere to paren-
tal-rights precedent after its decision in Dobbs v. Jackson
Women's Health Organization, 597 U. S. 215 (2022). Post,
at 505 (opinion of Kagan, J.). But Dobbs calls into question
neither the doctrine of substantive due process nor the other

500 MIRABEL
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Barrett, J., concurring
unexpressed rights that the doctrine protects. Applying
Glucksbe
rg, Dobbs holds that Roe v. Wade, 410 U. S. 113
(1973), and Planned Parenthood of Southeastern Pa. v.
Casey, 505 U. S. 833 (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 re-
taining these cases, Dobbs overruled them. Id., at 263–290.
It does not follow from Dobbs that all our substantive due
process cases confict 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 de-
ciding 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.”
Post, at 507. And the precedent recognizing those rights
controls our assessment of whether the parents are likely to
succeed on the merits.
The word “likely” is important, because it refects that our
assessment is preliminary. We consider the merits not to
conclusively resolve them, but because they bear on the lim-
ited question before us: Are the parents entitled to the bene-
ft of the judgment entered by the District Court while Cali-
fornia tries to overturn that judgment on appeal? The
Ninth Circuit—itself acting on an interim basis—said “no.”
We disagree. The parents must continue to litigate in the
Ninth Circuit, and if necessary, this Court. But in the
meantime, the injunction of California's policy—which, inci-
dentally, was entered after a full merits process—remains
in place.
And contrary to the dissent's charge, granting interim re-
lief is not a sign of the Court's “impatience” to reach the
merits. Post, at 503. Instead, the grant refects the Court's
judgment about the risk of irreparable harm to the parents.
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as: 607 U. S. 492 (2026)
501
Barrett, J., concurring
See Nken v. Holder, 556 U. S. 418, 435 (2009). If the parents
were
probably right but would suffer little harm from the
Ninth Circuit's stay, they would not be entitled to interim
relief. Ibid. But that is not the situation here. Under
California's policy, parents will be excluded—perhaps for
years—from participating in consequential decisions about
their child's mental health and well-being. Thus, the par-
ents are likely to suffer irreparable harm if California en-
forces its policy while this litigation winds its way through
the courts. Ante, at 497.
One last point: The Court has chosen to accompany today's
order with a per curiam opinion that explains its reasoning.
The choice to say more rather than less is perhaps the source
of the dissent's concern that our disposition of this applica-
tion will be taken as a “conclusive merits judgment.” Post,
at 504. But see, e. g., Whole Woman's Health v. Jackson,
594 U. S. –––, ––– (2021) (Kagan, J., dissenting from denial
of application for injunctive relief ) (critiquing this Court's
interim orders for “barely bother[ing] to explain [their] con-
clusion[s]”); Trump v. Boyle, 606 U. S. –––, ––– (2025)
(Kagan, J., dissenting from grant of application for stay)
(similar). Interim applications routinely require the Court
to balance the lock-in risk of saying too much against the
transparency cost of saying too little. See Labrador v. Poe,
601 U. S. 1110, 1128–1129 (2024) (Kavanaugh, J., concurring
in grant of stay). In my judgment, the benefts of explana-
tion win out here. The Ninth Circuit (following the Sixth
Circuit) signifcantly misunderstood Mahmoud v. Taylor, 606
U. S. 522 (2025), and general course correction will allow the
case to progress effciently. And because of the Dobbs point
that Justice Kagan raises, it would have been unwise to
issue an unreasoned order on the parents' substantive due
process claim.
When an interim application comes to us, “we must decide
it—grant or deny.” Labrador, 601 U. S., at 1121 (Kava-
naugh, J., concurring in grant of stay). Because the Nken
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Kagan, J., dissenting
factors strongly favor the parents, ante, at 496–497, I see no
basis
for denying this application.
Justice Kagan, with whom Justice Jackson joins,
dissenting.
Today's decision shows, not for the frst time, how our
emergency docket can malfunction. A case raising novel
legal questions and arousing strong views comes to this
Court via an application about whether to stay a district
court's injunction pending appeal. The ordinary appellate
process has barely started; only a district court has ruled
on the case's merits. The Court receives scant and, frankly,
inadequate briefng about the legal issues in dispute. It
does not hold oral argument or deliberate in conference, as
regular procedures dictate. It considers the request on a
short fuse—a matter of weeks. And then the Court grants
relief by means of a terse, tonally dismissive ruling designed
to conclusively resolve the dispute. The Court does all this
even though the application of existing law to the case raises
tricky questions, and so cries out for refection and explana-
tion. The Court is impatient: It already knows what it
thinks, and insists on getting everything over quickly. See
also, e. g., Department of State v. AIDS Vaccine Advocacy
Coalition, 606 U. S. –––, ––– (2025) (Kagan, J., dissenting
from grant of stay application); Trump v. Wilcox, 605 U. S.
–––, ––– (2025) (Kagan, J., dissenting from grant of stay
application).
Indeed, the precipitousness of the Court's decision today
has yet a further—and wholly new—dimension: In granting
emergency relief, the Court cannot even wait for an appellate
court to conclude its own process for deciding the identical
issue. As the Court notes, a Ninth Circuit panel last month
stayed the District Court's injunction against the challenged
policies, pending the State's appeal of that order. See ante,
at 495–496. The plaintiffs responded by simultaneously fl-
ing two motions—one asking this Court to vacate the panel's

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as: 607 U. S. 492 (2026)
503
Kagan, J., dissenting
stay and the other asking the Ninth Circuit to do the same
th
ing through en banc review. The Ninth Circuit is already
acting on the motion fled there: The court promptly called
for (and has now received) a response from the State, prepa-
ratory to exchanging memoranda and voting on reconsidera-
tion of the panel's decision. Regular order counsels that, in
this situation, the Ninth Circuit should go frst. The lower
court, that is, should decide whether to vacate the stay; and
only then should this Court decide whether further action is
needed. Cf. Supreme Court Rule 23.3 (Stay applications
“shall set out with particularity why the relief sought is not
available from any other court”). But the Court's impa-
tience cannot be contained for even that long. The Court
jumps the line, pre-empting the Ninth Circuit's normal (and
notably refective) en banc process. Why wait for appellate
procedures to play out when the Court already knows what
it wants?
And still, there is worse: The Court resolves the issues
raised through shortcut procedures on the emergency docket
even though it has had—for months now—the option of doing
so the regular way, on our merits docket. Since November
of last year, a petition for certiorari has been pending in a
case that, in critical respects, is a carbon copy of this one.
In Foote v. Ludlow School Comm., 128 F. 4th 336 (CA1 2025)
(per curiam), cert. pending, No. 25–77, as here, a public
school adopted a policy, conforming to a state agency's guid-
ance, about students who identify as transgender. There, as
here, the policy requires school employees to use only a stu-
dent's preferred name and pronouns, while barring employ-
ees from disclosing the student's at-school gender identity to
parents. And there, as here, parents challenge that policy
as a violation of their right to substantive due process. See
id., at 340–344.
1
Why not, then, just grant certiorari in
1
The one difference between this case and Foote is that this case also
involves a First Amendment free exercise claim, which would (if success-
ful) give relief to parents with religious objections to the State's pol-
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Kagan, J., dissenting
Foote, and decide it this coming fall? Or if there is some
reason
that Foote is not suitable, the Court could take one of
the many cases lined up behind it. By recent count, almost
40 cases raising due process and/or free exercise objections
to similar school policies are currently in the judicial system
(with several recently decided by appellate courts), so this
Court would not have to wait long. See Pet. for Cert. in
Foote, O. T. 2025, No. 25–77, p. 32. By granting certiorari
on one (or more) of those cases, the Court could ensure that
the issues raised by such policies receive the careful, disci-
plined consideration they merit, rather than the inevitably
truncated review the Court affords emergency applications.
Certainly, the Court cannot claim that thought and care
are not needed. If nothing else, this Court owes it to a sov-
ereign State to avoid throwing over its policies in a slapdash
way, if the Court can provide normal procedures. And
throwing over a State's policy is what the Court does today.
To be sure, the Court sprinkles the word “likely” atop its
assessment of which party's arguments will succeed. But
no one—in particular, neither a state offcial nor a lower
court—is apt to read the Court's per curiam, brusque
though it is, as anything less than a conclusive merits
judgment.
In any event, there is something else: This case presents
some thorny legal issues. The Court grants relief to parents
on the same two substantive grounds that supported the Dis-
trict Court's injunction. First, the Court says, some par-
ents can show that the State's policy “substantially inter-
icy. But as addressed later, the Court's recognition of the substantive
due process claim here makes the free exercise claim immaterial. See
in fra, at 505. That is because accepting the due process claim gives relief
to all objecting parents, religious and non-religious alike. So granting
certiorari in Foote would allow the Court to consider, on its regular merits
docket, the only claim doing actual work here. And if it is nonetheless
thought important to address the First Amendment issue as well, the
Court could grant certiorari (as I next explain) on one of multiple other
cases raising both issues that are likely to reach us in short order.
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as: 607 U. S. 492 (2026)
505
Kagan, J., dissenting
fere[s]” with their First Amendment right “to guide the
rel
igious development of their children.” Ante, at 496.
Here, the Court analogizes to Mahmoud v. Taylor, 606 U. S.
522 (2025), a decision issued last Term about school curriculum.
The ink on that decision is barely dry, and courts have just
begun to consider its meaning and reach. But even assume
the Court is right on the free exercise score; still, that could
not justify extending relief to all the parents here. After
all, some of those parents object to the State's policy not for
religious reasons, but simply because it prevents them from
taking part in their children's most crucial life decisions. So
the District Court also ruled on substantive due process
grounds, fnding a parental right to “direct the upbringing
and medical care of their children.” App. to Emergency Ap-
plication 54a. And indeed, in doing so, the court made its
free exercise ruling superfuous, because the due process
ground protects every parent, whether or not religious. See
supra, at 503–504, n. 1. This Court, to affrm 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.” Ante, at 497. But the very
phrasing the Court uses betrays the delicateness of the opera-
tion: Even in recognizing that parental right, the Court can-
not 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 constitu-
tional law will understand why: Substantive due process has
not been of late in the good graces of this Court—and espe-
cially 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 “capa-
cious” term “liberty” to enshrine specifc rights. Dobbs v.
Jackson Women's Health Organization, 597 U. S. 215, 239

506 MIRABEL
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Kagan, J., dissenting
(2022). Substantive due process, one has stated, is a “partic-
u
larly dangerous” “legal fction” because it “invites judges”
to “roa[m] at large in the constitutional feld guided only by
their personal views.” McDonald v. Chicago, 561 U. S. 742,
811 (2010) (Thomas, J., concurring in part and concurring
in judgment); Obergefell v. Hodges, 576 U. S. 644, 721 (2015)
(Thomas, J., dissenting).
2
Another has pointed to the “judi-
cial misuse of the so-called `substantive component' of due
process to dictate policy on matters that belonged to the peo-
ple to decide.” Sessions v. Dimaya, 584 U. S. 148, 191 (2018)
(Gorsuch, J., concurring in part and concurring in judg-
ment). And yet a third, when defending the Court's elimi-
nation 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 author-
ity to rewrite the Constitution.” Dobbs, 597 U. S., at 340
(Kavanaugh, J., concurring). There are many such state-
ments to choose from in this Court's recent substantive due
process caselaw. Especially given the Court's last venture
into the feld, today's decision cannot but induce a strong
sense of whiplash. Compare ante, at 497 (recognizing a par-
ent's right to make important decisions about her child's
health), with Dobbs, 597 U. S., at 231 (repudiating a woman's
right to make important decisions about her own health).
3
None of this is to say that the Court gets the merits here
wrong. It may not—as to the plaintiffs' free exercise claim,
2
For that reason, Justice Thomas has called for overruling “all” of this
Court's “substantive due process precedents.” Dobbs, 597 U. S., at 332–
333 (concurring opinion). That invitation presumably extends to the prec-
edents supporting both the District Court's decision and today's per cu-
riam. See ante, at 497 (citing Meyer v. Nebraska, 262 U. S. 390 (1923);
Pierce v. Society of Sisters, 268 U. S. 510 (1925); and Parham v. J. R., 442
U. S. 584 (1979)); App. to Emergency Application 38a–39a.
3
Another contrast—this time, between this case and United States v.
Skrmetti, 605 U. S. 495 (2025)—is also striking. In Skrmetti, several par-
ents challenged Tennessee's ban on gender-affrming care for minors. The
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as: 607 U. S. 492 (2026)
507
Kagan, J., dissenting
or their substantive due process claim, or both. As to due
process
particularly—because, again, that claim alone does
all the load-bearing work in this case, see supra, at 503–504,
n. 1, 505—I have no doubt that parents have rights, even
though unenumerated, concerning their children and the life
choices they make. See Pierce v. Society of Sisters, 268
U. S. 510, 534–535 (1925); Parham v. J. R., 442 U. S. 584, 602–
603 (1979). On the other side of the ledger, of course, a
State has critical interests in the care and education of chil-
dren. But California's policy, in depriving all parents of in-
formation 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.
The Court, however, would be far better equipped to draw
the appropriate line and to explain its legal basis—in short,
to do law in the right way—if it had followed our ordinary
processes. A mere decade ago, this Court would never have
granted relief in this posture. (Indeed, I am confdent that
the plaintiffs would never have thought to ask, at this stage,
for the Court's involvement.) Then, though apparently not
now, we understood that our normal processes—full briefng,
oral argument, conference, and opinion writing, along with
the time they take—exist for a reason. They ensure that
before the Court makes a decision, it has marshaled all the
suit raised claims grounded in both equal protection and substantive due
process. As to the latter, the parents in Skrmetti, similarly to the par-
ents here, asserted a right “to make decisions concerning medical care for
their minor children.” Pet. for Cert., O. T. 2023, No. 23–466, p. 34; see
id., at 18 (invoking a “right of parents with respect to the care, custody,
and control of their children, including in decisions about medical care”).
And in support of that right, the Skrmetti parents relied on the same
precedents the Court does today: Parham, 442 U. S. 584, and Pierce, 268
U. S. 510. See Pet. for Cert., No. 23–466, at 34–36; ante, at 497. But the
Court, when deciding to grant certiorari in Skrmetti, limited its review to
the equal protection issue: It would not even hear the parents out on their
substantive due process claim.
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508 MIRABEL
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Kagan, J., dissenting
relevant facts; considered all interested parties' and multiple
lower
courts' legal arguments; and deliberated internally,
with full understanding of each other's perspectives, on all
disputed issues. So too, those processes enable us to think
through the best legal rationale for, and scope of, any deci-
sion, given both the views we have earlier expressed and the
related issues that will soon come before us. And they allow
us to explain ourselves well and carefully, both to the parties
and to the public. Our processes are, in short, the hallmark
of judicial probity, and alike its guarantor. There was no
reason to abandon them here. I respectfully dissent.
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 501, line 7: “wellbeing ” is changed to “well-being ”
p. 507, Line 8: “the” is inserted before “ledger”