The Supreme Court has articulated that parents have the unenumerated right rooted in the Fourteenth Amendment to direct the care, custody, and upbringing of their children since the 1920s in such cases as Pierce v. Society of Sisters, Meyer v. Nebraska, Parham v. J.R. and Troxel v. Granville. However, the precise contours of the right have long been uncertain, as has the level of scrutiny to be applied.

In Dobbs v. Jackson Women’s Health Organization, the Supreme Court established a clear threshold for unenumerated rights, that they must be rooted in history and tradition and essential to ordered liberty. The Court noted that its decision does not call into question its line of cases on parental rights. Nevertheless, the question remains: do parental rights meet the Court’s threshold? Are there reasons to believe that parental rights will be affected by the Dobbs decision?

The Dobbs decision comes as a new series of conflicts between parents and the state are arising in education and healthcare around the country. Many of these conflicts over ideas about gender and race. These new conflicts implicate parental rights and are raising questions for courts such as:

  1. Who has the primary responsibility for the formation of a child’s identity and values?
  2. Do parental rights extend beyond the schoolhouse gate to include instruction and policies in schools?
  3. And who gets to decide the treatment of a child’s mental health, including gender distress?

These questions and more have been raised in a series of recent lawsuits against school districts over policies concerning race and gender-based curriculum and policies where challengers have invoked parental rights theories. How do those arguments square with existing doctrine? How might they extend existing doctrine?


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webinar, The Federalist Society's Religious Liberties Practice Group (December 14, 2022)


Transcript available as an additional file, below.

2022dec14_dwyer_federalist_society_webinar_transcript.pdf (235 kB)
audio transcript, Parental Rights and Religious Liberty (2022)