Mirabelli v. Bonta is a momentous emergency docket ruling that was frankly not on my radar. Sooner or later, I expected the Supreme Court to take case where a school district refused to tell parents that their child was engaging in a gender transition. What made these cases so tricky is that whenever litigation began, the districts conveniently changed the policy in an attempt to moot out what would be a certain loser. No one actually wants to defend these policies on the merits. But I thought the Court would resolve such a case on the merits docket. For example, in July 2025, ADF filed a cert petition in Foote v. Ludlow on appeal from the First Circuit. The briefing in that case concluded in November 2025, but the case entered relist purgatory with eight relists. Apparently, there are not four votes for cert in this case.
Yet the Court was willing to take action in Mirabelli. The emergency application was filed on January 8, and briefing concluded on January 22. About six weeks later, the Court has now ruled. In dissent, Justice Kagan asks why the Court acted here, and not in Foote. And if not in Foote, why not in one of the many other cases that are lined up? If I had to guess, this ruling from District Court Judge Benitez is the only one where the lower court actually ruled for the parents, and built an suitable record. Perhaps in the other cases, there were vehicle problems aided and abetted by judges who tried to make the cases vanish. But I'm not sure.
The votes in Mirabelli were not entirely clear. The emergency application raised two primary points. First, the parents had a Free Exercise and Substantive Due Process right to opt out of the gender policy. Second, the teachers had a Free Exercise, but not Substantive Due Process right, to opt out of the policy. Only Justices Thomas and Alito would have ruled for the parents and teachers.
