Mirabelli v. Bonta, the case involving the right of parents to control their children’s upbringing, once again raises the question for originalists of the Privileges or Immunities Clause versus Substantive Due Process. If the Court’s originalist justices want to defend originalism, they need to start the process, especially in concurring opinions, of protecting unenumerated rights under the Privileges or Immunities Clause rather than under Substantive Due Process.
In Mirabelli v. Bonta, a majority of the Supreme Court granted a family’s motion to vacate a Ninth Circuit stay of an injunction based in part on the parents’ Substantive Due Process claim. The parents argued that a California rule – that had prohibited public schools from informing them that their child had chosen to engage in a social gender transition at school – was unconstitutional. The Court concluded, in part, that the parents had the constitutional right “to have primary authority with respect to the upbringing and education of children.”
A dissent charged the majority with inconsistency because at least some of the majority justices oppose substantive due process generally and the majority justices had voted to overturn Roe v. Wade on the ground that there was no substantive due process right to an abortion.
Justice Barrett, in a concurrence for Roberts and Kavanaugh, defended the Court’s opinion. First, the overturning of Roe had not rejected all substantive due process but had merely concluded that Roe did not satisfy the Court’s requirements for substantive due process under Glucksberg. Second, the Court was not expanding substantive due process but merely relying on existing precedents that no one had questioned.
While I am generally sympathetic to Barrett’s opinion, I think that this case once again illustrates how important it is for the Court’s originalists to move away from substantive due process and instead to transfer that doctrine to its rightful place – the Privileges or Immunities Clause of the 14th Amendment.
There is a strong case that the traditional right to raise one’s children as one sees fit was protected by the Privileges or Immunities Clause. This is a strength of originalism. But Barrett and the majority’s approach of relying on Substantive Due Process renders this issue a weakness of originalism. It suggests the originalists are being result oriented hypocrites rather than principled originalists.
Since the test for Substantive Due Process under Glucksberg is so similar to the Privileges or Immunities analysis, there is no good excuse for not moving from Substantive Due Process to Privileges or Immunities. Yet, the Court looks this gift horse in the mouth.
Posted at 8:00 AM