Ever since the Supreme Court decided Dobbs v. Jackson Women’s Health Organization in 2022, stripping abortion protection from the Fourteenth Amendment, scholars have warned that other rights grounded in that same constitutional provision could be next.
Substantive due process under the Fourteenth Amendment protects a basket of rights many Americans hold dear: the freedom to marry someone of the same sex or of a different race, the right of parents to make educational and religious decisions for their children, and privacy rights such as access to contraception or the ability to engage in intimate relationships at home without government intrusion. These liberties are not spelled out word for word in the Constitution, but for decades the Court has recognized them as essential to personal liberty.
The reasoning in Dobbs suggests many of these rights might not survive if tested under the majority’s historical lens. Justice Clarence Thomas said as much in his concurring opinion, urging the Court to “reconsider all … substantive due process precedents” and declaring every such decision “demonstrably erroneous.”
This past summer, the Court gave us an early glimpse of how it may handle those rights. In Mahmoud v. Taylor (2025), the justices considered whether public schools must let parents opt their children out of lessons about LGBTQ+ people on religious grounds. The question matters deeply to families and educators, but the Court’s legal reasoning may be the more telling – and troubling – development.
Normally, under the Free Exercise Clause alone, the government action in Mahmoud would have been upheld because the Court’s usual test is relatively deferential. But there’s a long-standing exception: when a case implicates two constitutional rights at the same time – here, parents’ right to direct their children’s upbringing and the Free Exercise Clause’s protection of religion – the Court applies strict scrutiny instead. That toughest level of review requires the government to prove it has a truly compelling reason for its policy and that it has chosen the narrowest way to achieve that goal.
Yet in Mahmoud, the majority acknowledged only the Free Exercise Clause and declined to rely on the parental-rights line of cases at all. Still, it applied strict scrutiny as if nothing had changed. The doctrinal shift was tucked into a brief footnote and presented as if consistent with precedent – though it was not.
Why would the Court do this? It had a clear, well-established path: apply the traditional rule that overlapping constitutional guarantees trigger strict scrutiny. That approach would have fit decades of precedent and avoided upheaval. Yet the majority sidestepped it. The most plausible explanation is strategic. By refusing to reaffirm the parental-rights strand of substantive due process, the Court keeps that doctrine on shaky ground. Strengthening it now would make later rollbacks harder. Instead, the justices framed the case narrowly, leaving substantive due process out altogether.
Dobbs may not have been an isolated earthquake. Mahmoud v. Taylor shows a Court quietly clearing the path to revisit – and perhaps uproot – decades of protections many Americans assume are secure. ■