Douglas NeJaime and Reva Siegel
In last week’s per curiam opinion in Mirabelli
v. Bonta, the U.S. Supreme Court held that California policies
requiring school administrators to obtain student consent before disclosing
students’ transgender identity to their parents likely violated constitutionally
protected parental rights. There are many potential objections to the Court
deciding Mirabelli in the way it did. It was yet another “shadow docket”
decision, with the Court eager to reach out to decide a question without full
briefing and argument. If the Court had taken one of the similar cases on its
merits docket, it could have been clearer about the scope of the right it
announced.
Here, we raise a different, and deeper,
objection. As Justice Kagan explained in a stinging dissent, “[e]ven in
recognizing th[e] parental right, the Court cannot quite bring itself to name
the legal doctrine—it is . . . substantive due process—that provides the
right’s only basis.” “Substantive due process,” Justice Kagan observed, “has
not been of late in the good graces of this Court—and especially of the Members
of today’s majority.” Last term, in United States v. Skrmetti, when the
Court upheld Tennessee’s ban on gender-affirming care for transgender minors on
equal protection grounds, it refused to hear the substantive due process claims
of parents supporting their children’s transgender identity, letting stand a
Sixth Circuit decision denying that parents had constitutionally protected
rights at stake. Yet now in Mirabelli, the same Court has recognized a substantive
due process right of parents who may object to their children’s transgender
identity. Even Justice Thomas, who in Dobbs
asserted that “‘substantive due process’ is an oxymoron that ‘lack[s] any basis
in the Constitution,’” joined with Justice Alito in ruling that not only the
parents but also the teachers likely had constitutionally protected rights to
object to the state’s policies.
In this respect, Mirabelli illustrates a
dynamic we have been emphasizing for
some time now. Objections to substantive due process do not
sound in abstract principle. As we show in a
recent essay, the Court is quite comfortable applying substantive due process
in many cases—from incorporation of the Second Amendment to punitive damages—but
objects in cases involving liberty claims by those engaged in long stigmatized
conduct relating to reproduction, intimate relations, and family life.
In both Dobbs and Obergefell, the
conservative Justices—in the majority in Dobbs and dissenting in Obergefell—attacked
substantive due process by equating it with Lochner. It is no
coincidence that the Lochner objection is raised in response to claims to
abortion and same-sex marriage. Since the era of Griswold, the Lochner
objection has been employed to stigmatize liberty claims concerning sexual and
reproductive rights. In his 1971 article on Neutral
Principles, Robert Bork famously equated the Lochner
objection with sexual and judicial license, observing that a judge had “no
principled way to decide that one man’s gratifications are more deserving of
respect than another’s” or that “sexual gratification” was “nobler than
economic gratification” and so lacked any basis “other than his own values upon
which to set aside the community judgment embodied in the statute.”
As we show in Not Lochner!:
Substantive Due Process as Democracy-Promoting Judicial Review,
recently published in the California
Law Review, if one understands the roots of the
modern substantive due process cases, one can appreciate how the Lochner objection perpetuates a history
of stigma and outcasting. The cases—from Griswold
to Obergefell—arose as members of
groups long excluded from the political process asserted claims to engage in
conduct—contraception, abortion, sodomy, and same-sex relations—that had been
banned for at least a century. Into the late twentieth century, obscenity
doctrine inhibited speech about the banned practices, thereby limiting the
possibilities for mobilization and political action. The objection to
substantive due process carries forward the legacy of obscenity, perpetuating the
stigma historically associated with the criminalized conduct and speech at
issue. From this vantage point, the Court’s most recent brush with substantive
due process makes sense. In Mirabelli, we see a Court prepared to
recognize parental rights to object to a child’s “gender transition” but, with Skrmetti,
not to support a child through “gender transition.”
The conservatives’ Lochner objection
appears in some, but not all substantive due process cases. We do not typically
hear it in substantive due process cases concerning incorporation, or punitive
damages, or even most forms of parental rights. Instead, cries of Lochner
are most likely to appear as an objection to a claim of liberty in intimate and
family life that breaks with tradition.
Douglas NeJaime is the Anne Urowsky
Professor of Law at Yale Law School and can be reached at douglas.nejaime@yale.edu. Reva Siegel is the Nicholas
deB. Katzenbach Professor of Law at Yale Law School and can be reached at reva.siegel@yale.edu.