Mirabelli v. Bonta

Summary

The application filed by parents and teachers to vacate the Ninth Circuit’s stay of the District Court’s injunction pending appeal is granted as to the parents under the four-factor test in Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. 758, 763 (2021) (per curiam).

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1  Cite as: 607 U. S. ____ (2026) 
Per Curiam 
SUPREME COURT OF THE UNITED STATES 
No. 25A810 
ELIZABETH MIRABELLI, ET AL. v. ROB BONTA, 
ATTORNEY GENERAL OF CALIFORNIA, ET AL. 
ON APPLICATION TO VACATE INTERLOCUTORY STAY ORDER 
[March 2, 2026]
 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 Pro-
cess Clause of the Fourteenth Amendment.  The parents
object 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 notifi-
cation. The parents also take issue with California’s re-
quirement that schools use children’s preferred names and 
pronouns regardless of their parents’ wishes.  The teachers 
object to their compelled parti cipation in the implementa-
tion of the State’s policies. 
I 
This case began in the Unit ed 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 officials as defendants, and parents of California 
schoolchildren joined the lawsuit as plaintiffs. Relying on

2 MIRABELLI v. BONTA 
Per Curiam 
their own experiences and guidance documents issued by
state officials, 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 Fourteenth Amendment. 
Two of the parent plaintiffs, John and Jane Poe, have re-
ligious 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 re-
ferred 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 and had been presenting as a boy at
school. Just months after being discharged, the Poes’ 
daughter was rehospitalized 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’ instructions, teachers and school offi-
cials continued to use a male name and pronouns for their 
daughter, citing their obligations 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 fifth grade, their daughter has 
sometimes identified 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
daughter 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

3  Cite as: 607 U. S. ____ (2026) 
Per Curiam 
without the child’s consent. The Does believed that the risk 
of leaving their daughter in that school was too great, so
they transferred their daughter to a new public school be-
cause sending her to a private school was financially and 
logistically infeasible.  The Does have also placed their 
daughter in therapy.
In 2025, defendants asserted that the guidance docu-
ments on which plaintiffs had relied were no longer opera-
tive and that the claims against certain state defendants
should be dismissed as moot.  But the State had promul-
gated a new required training curriculum that similarly di-
rected teachers not to tell pa rents 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 certified a class with separate subclasses for parents 
and teachers. One subclass of parents comprises all those 
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 certified.  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 fo llow parents’ directions re-
garding their children’s names and pronouns.  And it com-
pels defendants to include in state-created or approved in-
structional 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 certification without

4 MIRABELLI v. BONTA 
Per Curiam 
undertaking the “ ‘rigorous analysis’ ” required by Federal 
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 appe ared to be overly broad be-
cause it “covers every parent of California’s millions of pub-
lic 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 Dis-
trict 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 about the parents’ and teachers’ Fourteenth
Amendment due process claim because it viewed those 
claims as seeking to expand the protection afforded by es-
tablished precedent.
When the Ninth Circuit stayed the injunction, the par-
ents and teachers filed 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 “justi -
fied 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 succeed 
on the merits of their Free Exercise Clause claim.  Califor-
nia’s policies likely trigger strict scrutiny under that

5  Cite as: 607 U. S. ____ (2026) 
Per Curiam 
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 religio us obligation to raise their 
children in accordance with those beliefs.  California’s poli-
cies 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 sto-
rybooks we considered sufficient 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
of children’s best interests: their parents. See Troxel v. 
Granville, 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 preclud -
ing 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 policies on due process grounds.  Under long-estab-
lished 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 in-
cludes the right not to be shut  out of participation in deci-
sions regarding their children’s mental health.  Parham v.

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Per Curiam 
J. R., 442 U. S. 584, 602 (1979).  Gender dysphoria is a con-
dition that has an important bearing on a child’s mental 
health, but when a child exhibits symptoms of gender dys -
phoria at school, California’s policies conceal that infor-
mation from parents and facilitate a degree of gender tran-
sitioning 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 fit parents a role in some of the most conse-
quential 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. 
III 
The Ninth Circuit’s procedural objections to the injunc-
tion are unlikely to prevail. 
First, the parents protected by the injunction very likely 
have standing because they are objects of the challenged
exclusion policies. See Diamond Alternative Energy, LLC 
v. EPA, 606 U. S. 100, 114 (2025).  Contrary to the Ninth
Circuit’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.

7  Cite as: 607 U. S. ____ (2026) 
Per Curiam 
Second, class certification was likely proper.  The District 
Court addressed the requirements for certification 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.

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1  Cite as: 607 U. S. ____ (2026) 
BARRETT, J., concurring 
SUPREME COURT OF THE UNITED STATES 
No. 25A810 
ELIZABETH MIRABELLI, ET AL. v. ROB BONTA, 
ATTORNEY GENERAL OF CALIFORNIA, ET AL. 
ON APPLICATION TO VACATE INTERLOCUTORY STAY ORDER 
[March 2, 2026] 
JUSTICE BARRETT, with whom T HE  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 find 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 unstated,
how do judges know what they are? The obvious risk is that 
judges will use their own values as a guide, thereby jeop-
ardizing the People’s right to self-governance.  To mitigate 
this risk, the Court has crafted a demanding test for recog-
nizing unexpressed rights: They must be “deeply rooted in 
this Nation’s history and tradition” and “implicit in the con-
cept 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 significant 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

2 MIRABELLI v. BONTA 
BARRETT, J., concurring 
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 identification.  One 
set of parents learned of their child’s transition at school 
only after the child attempted suicide. Strikingly, even af-
ter this tragic event, school administrators continued to 
withhold information about the student’s gender identifica-
tion. California’s nondisclosure policy thus quite obviously
excludes parents from highly important decisions about 
their child’s mental health, see Parham, 442 U. S., at 601– 
604, and is unlikely to satisfy heightened scrutiny.  Our res-
olution of the parents’ likelihood of success on this claim is 
dictated by existing law.
The dissent questions how the Court can adhere to 
parental-rights precedent after its decision in Dobbs v. 
Jackson Women’s Health Organization , 597 U. S. 215 
(2022). Post, at 5–6 (opinion of K
AGAN, J.).  But Dobbs calls 
into question neither the doctrine of substantive due pro-
cess nor the other unexpressed rights that the doctrine pro-
tects. Applying Glucksberg, Dobbs holds that Roe v. Wade, 
410 U. S. 113 (1973), and Planned Parenthood of Southeast-
ern Pa. v. Casey, 505 U. S. 833 (1992), were incorrectly de -
cided because a right to abortion is not “ ‘deeply rooted in 
this Nation’s history and tradition’ and ‘implicit in the con-
cept of ordered liberty.’ ”  Dobbs, 597 U. S., at 231.  And be-
cause the Court concluded that the stare decisis factors 
counseled against retaining these cases, Dobbs overruled 
them. Id., at 263–290. It does not follow from Dobbs that 
all our substantive due process cases conflict with Glucks-
berg, 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

3  Cite as: 607 U. S. ____ (2026) 
BARRETT, J., concurring 
unenumerated, concerning their children and the life 
choices they make.” Post, at 6. And the precedent recog-
nizing those rights controls our assessment of whether the
parents are likely to succeed on the merits.
The word “likely” is important, because it reflects that
our assessment is preliminary.  We consider the merits not 
to conclusively resolve them, but because they bear on the 
limited question before us: Are the parents entitled to the
benefit of the judgment entered by the District Court while
California 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, in-
cidentally, 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 2. Instead, the grant reflects the Court’s 
judgment about the risk of irreparable harm to the parents. 
See Nken v. Holder, 556 U. S. 418, 435 (2009).  If the par-
ents were probably right but would suffer little harm from
the Ninth Circuit’s stay, they would not be entitled to in-
terim 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 wellbeing. 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 6. 
One last point: The Court has chosen to accompany to-
day’s order with a per curiam opinion that explains its rea-
soning. The choice to say more rather than less is perhaps
the source of the dissent’s concern that our disposition of 
this application will be taken as a “conclusive merits judg-
ment.” Post, at 4.  But see, e.g., Whole Woman’s Health v.

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BARRETT, J., concurring 
Jackson, 594 U. S. ___, ___ (2021) (K AGAN, J., dissenting
from denial of application for injunctive relief ) (slip op., at 
1) (critiquing this Court’s interim orders for “barely 
bother[ing] to explain [their] conclusion[s]”); Trump v. 
Boyle, 606 U. S. ___, ___ (2025) (KAGAN, J., dissenting from
grant of application for stay) (s lip op., at 3) (similar).  In-
terim 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. ___, 
___–___ (2024) (K
AVANAUGH, J., concurring in grant of stay) 
(slip op., at 11–12).  In my judgment, the benefits of expla-
nation win out here. The Ninth Circuit (following the Sixth
Circuit) significantly misunderstood Mahmoud v. Taylor, 
606 U. S. 522 (2025), and general course correction will al-
low the case to progress efficiently. And because of the 
Dobbs point that J
USTICE KAGAN raises, it would have been 
unwise to issue an unreasoned order on the parents’ sub-
stantive due process claim.
When an interim application comes to us, “we must de-
c i d e  i t — g r a n t  o r  d e n y . ” Labrador, 601 U. S., at ___ 
(KAVANAUGH, J., concurring in grant of stay) (slip op., at 2). 
Because the Nken factors strongly favor the parents, ante, 
at 4–6, I see no basis for denying this application.

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1  Cite as: 607 U. S. ____ (2026) 
KAGAN, J., dissenting 
SUPREME COURT OF THE UNITED STATES 
No. 25A810 
ELIZABETH MIRABELLI, ET AL. v. ROB BONTA, 
ATTORNEY GENERAL OF CALIFORNIA, ET AL. 
ON APPLICATION TO VACATE INTERLOCUTORY STAY ORDER 
[March 2, 2026] 
JUSTICE KAGAN, with whom JUSTICE JACKSON joins, dis-
senting. 
Today’s decision shows, no t for the first time, how our
emergency docket can malfunction.  A case raising novel le-
gal questions and arousing strong views comes to this Court 
via an application about whethe r 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 rece ives scant and, frankly, inad-
equate briefing about the legal issues in dispute.  It does 
not hold oral argument or deliberate in conference, as reg-
ular procedures dictate. It co nsiders 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 reflection and
explanation. 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 Advo-
cacy Coalition, 606 U. S. ___, ___ (2025) (K
AGAN, J., dissent-
ing from grant of stay application) (slip op., at 2–3); Trump 
v. Wilcox, 605 U. S. ___, ___ (2025) (K AGAN, J., dissenting 
from grant of stay application) (slip op., at 2–3, 8). 
Indeed, the precipitousness of the Court’s decision today 
has yet a further—and wholly new—dimension: In granting

2 MIRABELLI v. BONTA 
KAGAN, J., dissenting 
emergency relief, the Court cannot even wait for an appel-
late court to conclude its own process for deciding the iden-
tical issue. As the Court notes, a Ninth Circuit panel last 
month stayed the District Cour t’s injunction against the 
challenged policies, pending th e State’s appeal of that or-
der. See ante, at 3–4. The plaintiffs responded by simulta-
neously filing two motions—one asking this Court to vacate
the panel’s stay and the other asking the Ninth Circuit to 
do the same thing through en banc review.  The Ninth Cir-
cuit is already acting on the motion filed there: The court
promptly called for (and has now received) a response from 
the State, preparatory to exchanging memoranda and vot-
ing on reconsideration of the panel’s decision.  Regular or-
der counsels that, in this situation, the Ninth Circuit should 
go first. 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 impatience cannot be contained for even that 
long. The Court jumps the line, pre-empting the Ninth Cir-
cuit’s normal (and notably reflective) 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 guidance, about students who identify as 
transgender.  There, as here, the policy requires school em-
ployees to use only a student’s preferred name and

3  Cite as: 607 U. S. ____ (2026) 
KAGAN, J., dissenting 
pronouns, while barring employees from disclosing the stu-
dent’s at-school gender identity to parents.  And there, as 
here, parents challenge that po licy as a violation of their 
right to substantive due process. See id., at 340–344.1  Why 
not, then, just grant certiorari in 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 pol-
icies are currently in the judicial system (with several re-
cently 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, disciplined considera-
tion 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 sprinkle s the word “likely” atop its 
assessment of which party’s arguments will succeed.  But 
no one—in particular, neither a state official nor a lower 
—————— 
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 policy.
But as addressed later, the Court’s recognition of the substantive due
process claim here makes the free exercise claim immaterial.  See infra, 
at 4. That is because accepting the due process claim gives relief to all 
objecting parents, religious and non-re ligious alike.  So granting certio-
rari 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.

4 MIRABELLI v. BONTA 
KAGAN, J., dissenting 
court—is apt to read the Court’s per curiam , brusque
though it is, as anything less than a conclusive merits judg-
ment. 
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
District Court’s injunction.  First, the Court says, some par-
ents can show that the State’s policy “substantially inter-
fere[s]” with their First Amendment right “to guide the re-
ligious development of their children.” Ante, at 5.  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 re-
ligious 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, finding a parental ri ght 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 superfluous, because the due process 
ground protects every parent, whether or not religious.  See 
supra, at 3, n. 1.  This Court, to affirm the relief given, must 
follow the same course: It explains that the State’s policy 
“excludes parents” from “parti cipation in decisions regard-
ing their children’s mental health.”  Ante, at 5–6.  But the 
very phrasing the Court uses betrays the delicateness of the 
operation: Even in recognizing that parental right, the 
Court cannot quite bring itself to name the legal doctrine—
it is, again, substantive du e process—that provides the
right’s only basis.
Anyone remotely familiar with recent debates in consti-
tutional law will understand why: Substantive due process

5  Cite as: 607 U. S. ____ (2026) 
KAGAN, J., dissenting 
has not been of late in the good graces of this Court—and 
especially of the Members of today’s majority.  The Due Pro-
cess Clause, needless to say, does not expressly grant pa -
rental rights of any kind. The relevant text bars a State 
only from depriving a person of “liberty” “without due pro-
cess of law.” Members of the majority often have expressed 
skepticism—sometimes outright hostility—to understand-
ing the “capacious” term “liberty” to enshrine specific
rights. Dobbs v. Jackson Women’s Health Organization , 
597 U. S. 215, 239 (2022).  Substantive due process, one has
stated, is a “particularly dangerous” “legal fiction” because
it “invites judges” to “roa[m] at large in the constitutional 
field guided only by their personal views.” McDonald v. 
Chicago, 561 U. S. 742, 811 (2010) (T
HOMAS, J., concurring 
in part and concurring in judgment); Obergefell v. Hodges, 
576 U. S. 644, 721 (2015) (T HOMAS, J., dissenting). 2  A n-
other has pointed to the “judicial misuse of the so-called 
‘substantive component’ of due process to dictate policy on 
matters that belonged to the people to decide.”  Sessions v. 
Dimaya, 584 U. S. 148, 191 (2018) (G
ORSUCH, J., concurring 
in part and concurring in judgment).  And yet a third, when 
defending the Court’s elimination 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 authority to rewrite the Constitu-
tion.” Dobbs, 597 U. S., at 340 (K
AVANAUGH, J., concur -
ring). There are many such statements to choose from in
this Court’s recent substantive due process caselaw.  Espe-
cially given the Court’s last venture into the field, today’s 
—————— 
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 
precedents supporting both the District Court’s decision and today’s per 
curiam. See ante , at 5–6 (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.

6 MIRABELLI v. BONTA 
KAGAN, J., dissenting 
decision cannot but induce a strong sense of whiplash.
Compare ante, at 5–6 (recognizing a parent’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 im-
portant 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, 
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 3, n. 1, 
4—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 ledger, of course, a State
has critical interests in the care and education of children. 
But California’s policy, in depriving all parents of infor -
mation critical to their child ren’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, woul d 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 
—————— 
3 Another contrast—this time, between this case and United States v. 
Skrmetti, 605 U. S. 495 (2025)—is also striking. In Skrmetti, several 
parents challenged Tennessee’s ban on gender-affirming care for minors.
The suit raised claims grounded in both equal protection and substantive 
due process. As to th e latter, the parents in Skrmetti , similarly to the 
parents 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, cus -
tody, 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 
5–6. But the Court, when deciding to grant certiorari in Skrmetti, lim-
ited its review to the equal protection  issue: It would not even hear the 
parents out on their substantive due process claim.

7  Cite as: 607 U. S. ____ (2026) 
KAGAN, J., dissenting 
ordinary processes.  A mere de cade ago, this Court would
never have granted relief in this posture.  (Indeed, I am con-
fident 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 pro-
cesses—full briefing, oral argument, conference, and opin-
ion writing, along with the time they take—exist for a rea-
son.  They ensure that before the Court makes a decision, it
has marshaled all the relevant facts; considered all inter-
ested parties’ and multiple lo wer 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 ra-
tionale for, and scope of, any decision, 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.

Retrieval chunks

• #1

  _________________ _________________ 1 Cite as: 607 U. S. ____ (2026) Per Curiam SUPREME COURT OF THE UNITED STATES No. 25A810 ELIZABETH MIRABELLI, ET AL. v. ROB BONTA, ATTORNEY GENERAL OF CALIFORNIA, ET AL. ON APPLICATION TO VACATE INTERLOCUTORY STAY ORDER [March 2, 2026] PER CURIAM. Before us is an applic…

• #2

  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 and had been presenting as a boy at school. Just months after being discharged, the Poes’ daughter was rehospitalized an…

• #3

  subclasses of teachers were also certified. 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 so…

• #4

  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 succeed on the merits of their Free Exercise Clause claim. Califor- nia’s policies likely trigger strict scrutiny …

• #5

  6 MIRABELLI v. BONTA Per Curiam J. R., 442 U. S. 584, 602 (1979). Gender dysphoria is a con- dition that has an important bearing on a child’s mental health, but when a child exhibits symptoms of gender dys - phoria at school, California’s policies conceal that infor- mation from parents and facilitate a degree…

• #6

  SUPREME COURT OF THE UNITED STATES No. 25A810 ELIZABETH MIRABELLI, ET AL. v. ROB BONTA, ATTORNEY GENERAL OF CALIFORNIA, ET AL. ON APPLICATION TO VACATE INTERLOCUTORY STAY ORDER [March 2, 2026] JUSTICE BARRETT, with whom T HE CHIEF JUSTICE and JUSTICE KAVANAUGH join, concurring. As the dissent observes, substa…

• #7

  604, and is unlikely to satisfy heightened scrutiny. Our res- olution of the parents’ likelihood of success on this claim is dictated by existing law. The dissent questions how the Court can adhere to parental-rights precedent after its decision in Dobbs v. Jackson Women’s Health Organization , 597 U. S. 215 (2…

• #8

  merits. Post, at 2. Instead, the grant reflects the Court’s judgment about the risk of irreparable harm to the parents. See Nken v. Holder, 556 U. S. 418, 435 (2009). If the par- ents were probably right but would suffer little harm from the Ninth Circuit’s stay, they would not be entitled to in- terim relief. I…

• #9

  _________________ 1 Cite as: 607 U. S. ____ (2026) KAGAN, J., dissenting SUPREME COURT OF THE UNITED STATES No. 25A810 ELIZABETH MIRABELLI, ET AL. v. ROB BONTA, ATTORNEY GENERAL OF CALIFORNIA, ET AL. ON APPLICATION TO VACATE INTERLOCUTORY STAY ORDER [March 2, 2026] JUSTICE KAGAN, with whom JUSTICE JACKSON jo…

• #10

  the State, preparatory to exchanging memoranda and vot- ing on reconsideration of the panel’s decision. Regular or- der counsels that, in this situation, the Ninth Circuit should go first. The lower court, that is, should decide whether to vacate the stay; and only then should this Court decide whether further …

• #11

  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…

• #12

  ligious 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, finding a parental ri ght to “direct the upbringing and medical care of their children.” App. to Emergency Ap- plication 54a…

• #13

  grounded in substantive due process, explained that the “Constitution does not grant the nine unelected Members of this Court the unilateral authority to rewrite the Constitu- tion.” Dobbs, 597 U. S., at 340 (K AVANAUGH, J., concur - ring). There are many such statements to choose from in this Court’s recent sub…

• #14

  parents challenged Tennessee’s ban on gender-affirming care for minors. The suit raised claims grounded in both equal protection and substantive due process. As to th e latter, the parents in Skrmetti , similarly to the parents here, asserted a right “to make decisions concerning medical care for their minor child…