This past June, when the Supreme Court delivered its opinions in United States v. Skrmetti and Mahmoud v. Taylor, it entered a new era in the weaponization of rights against sex, sexual orientation, and gender identity and expression (SSOGIE) equality. In this new era, the Court is advancing its anti-equality agenda by co-opting parental rights to the detriment of minors’ wellbeing and autonomy. It did so by ruling on parental rights in Mahmoud while pointedly refusing to engage them in Skrmetti, thereby reinforcing the law’s entrenched treatment of children as property. To understand how this new weaponization emerged, how its advancement can be halted, and how children’s rights can be advanced, it is indispensable to examine the theoretical foundations and shifts in the doctrine of parental rights that have led to its current form. Clare Ryan’s The Public/Private Home precisely provides such a framework.
Ryan’s forthcoming piece in the Cornell Law Review calls for reexamining the concept of family autonomy and privacy and its derivative doctrine of parental rights in light of the profound transformations in contemporary family life. She argues that the assumptions underpinning the public/private divide that shaped these doctrines no longer hold as they do not reflect lived reality. Ryan highlights that the law’s assumptions regarding where the provision of public goods falls on the family/public dichotomy have been subverted by family practices that have moved many activities, such as work, schooling, and healthcare, into what the law still considers the private sphere and vice versa. For instance, on the other side of the spectrum, through social media platforms, homes have become sites of intense surveillance, data collection, and profit by making private life more visible to the public, including the state. Such transformations, Ryan contends, have profound implications for the doctrine of parental rights.
To prove her point, she establishes how the construct of private home life has informed courts’ rationales about family formation and family autonomy. That framework has inevitably led to a conception of parental rights tethered to the private home and akin to a property rights regime in which parents exercise property-like control over children.
Ryan identifies three core doctrinal assumptions of family autonomy and privacy. The first is that the home is a sanctuary protected from external scrutiny. The second is that home is distinct from the market, where care and domestic labor occur outside market regulation, and where no work activity happens. And the last one is that public goods, such as education and health services, are delivered externally, not inside the home. She argues that these premises no longer reflect lived reality, undermining legal coherence and perpetuating and exacerbating children’s inequality and subordination.
Ryan discusses how remote schooling, telemedicine, work-from-home arrangements, and the momfluencer industry have blurred the boundaries between private and public spheres in the home, making the home simultaneously more public and private than ever before. She then critiques, with particular focus on the parent–child legal relationship, how this dual shift has created doctrinal misfits that contribute to systemic inequality and unjust legal outcomes.
Although Ryan concerns herself in the article with harms such as the lack of surveillance from doctors or teachers on children’s possible abuse or neglect because of remote schooling and telemedicine or with child exploitation in social media platforms, I could not stop thinking about how her theory could help explain the Court’s current framework of parental rights and its weaponization in Mahmoud and Skrmetti. In Mahmoud, the Court held that the government’s establishment of an inclusive LGBTQ curriculum violates the free exercise clause, as it substantially interferes with parents’ ability to raise their children in accordance with their religious beliefs, even if alternatives like private or homeschooling exist. Although framed as a general free exercise issue, the decision hinges on parental rights and not on the children’s own free exercise rights or the right to receive an inclusive education. It does not even acknowledge that minors possess such rights. Similarly, the Court dismisses the state’s interest in promoting equality through public education, subordinating it entirely to parental authority.
These outcomes favoring parental rights over recognizing minors as rightholders and subordinating the state’s interests in promoting an egalitarian society to parental will can easily be explained by the phenomenon Ryan aptly points out in her article. By conceptually privatizing the public good of education based on the family home experience of homeschooling or remote education, the Court increasingly augments the scope of parental rights, effectively forcing the state to abdicate its responsibility to ensure equal treatment and inclusive education for all citizens.
This phenomenon also applies to the Court’s decision in Skrmetti denying review to Tennessee’s ban on gender affirming care for minors based on parental rights, but granting certiorari on equal protection grounds. The Court declined to review the parental rights argument raised by the transgender minors, their parents, and their doctor because otherwise it would have been forced to veer from its anti-equality agenda. If the Court had reviewed the rights of parents to choose appropriate medical care for their children, any consistent application of its parental rights doctrine would have demanded that such a right supersede the scientifically unsubstantiated interest of the state in preventing gender affirming care for minors. In a world where the Court privatizes traditionally-defined public goods such as education, then surely health decisions, in a country with no positive constitutional obligation to provide sanitary services, must logically fall under the umbrella of parental rights. Thus, contrary to the actual Court’s decision, a consistent application of the Court’s parental rights doctrine would have resulted in a victory for parents seeking gender affirming care for their children, as the state’s interest would have had to yield to parental will.
Yet, this positive result would have been at the expense of recognizing children’s autonomy. Even though the outcome would have been for minors to continue with their gender affirming care as they desired, their choice in doing so would have been contingent on their parents’ will. Such a rationale reifies the property-like control of parents over children.
This reluctance or incapacity within the legal system to affirm children’s autonomy, even when advancing egalitarian agendas, underscores the need for a conceptual shift, one that Ryan compellingly illuminates. Based on her discussion on the transformation of the public/private home, Ryan proposes to untether parental rights from the private home and reframe them not as entitlements tied to the children and the location of the activity, but as responsibilities to protect a child’s wellbeing regardless of whether activities occur inside or outside the home.
Ryan’s theoretical intervention adds a compelling new voice to the growing chorus advocating for minors’ autonomy. Her work enriches the scholarly movement to bring children out from under parental control and into public and political life advanced by scholars such as Anne Dailey, Catherine Smith, and Laura A. Rosenbury, and reflected in litigation efforts like Genesis v. EPA. Ryan offers a promising path to reducing disparities and challenging the entrenched subordination of children in the legal family structure. As she notes, realizing this vision will require substantial future practical work. I am eager to contribute to that effort and to incorporate her insights into my forthcoming scholarship on minors’ rights to bodily autonomy and self-determination.
