The Supreme Court signaled on Tuesday that it would side with a group of religious parents who oppose a Maryland school district’s use of LGBT-themed children’s books in its reading curriculum. Most of the justices in the court’s conservative majority reacted with varying levels of disdain to the idea of requiring students to be exposed to such books and seemed eager to expand religious parents’ ability to opt their children out of public school curriculums in general.
Justice Samuel Alito referred at one point to one book where the protagonist’s uncle marries another man. A lawyer representing the Montgomery County School District said the book was not coercive toward students’ religious beliefs but simply recognized that same-sex marriages exist. “I think it clearly goes beyond that,” Alito replied. “It doesn’t just say that Uncle Bobby and Jamie are getting married. It expresses the idea subtly, but it expresses the idea that this is a good thing.”
Tuesday’s oral arguments in Mahmoud v. Taylor did not establish clearly where and how the court will draw the line when allowing parents to opt out from certain lessons. At minimum, the court’s conservative justices gave few indications that they would tread lightly on public schools’ ability to feature LGBT-inclusive themes in their curriculum. That could, in turn, make it logistically difficult for schools to include them at all.
In 2022, the Montgomery County School District, located just outside of Washington, D.C., updated its English curriculum to address concerns that the existing materials “did not fully reflect the diversity of [Montgomery County Public Schools] families.” After a lengthy review process involving educators, parents, and administrators, the district added five storybooks to its curriculum that involve LGBT themes.
One includes a prince who fights a dragon and falls in love with a male knight; another features a child named Penelope who decides that he is a boy. The district noted in its brief for the court that the stories are not that different from other traditional storybooks “such as retellings of Rapunzel, Cinderella, and Goldilocks.” The books are considered to be at an appropriate reading level for pre-K students through fifth graders.
The school initially allowed parents to opt out of the lessons where the books would be included. That became unworkable when significant numbers of students and parents declined to include their students, some for religious reasons and some for non-religious reasons. Midway through the 2022–23 school year, the district ended the policy because of the logistical hurdles it caused for teachers and administrators. A group of Christian and Muslim parents immediately sued to have it restored.
The Fourth Circuit Court of Appeals rejected their motion for a preliminary injunction last year, noting that the parents “do not show anything at this point about the Board’s decision that affects what they teach their own children.” In its ruling, the three-judge panel emphasized the “threadbare” nature of the record before them. None of the materials filed by the parties, it said, had any details “about how any teacher or school employee has actually used any of the storybooks in the parents’ children’s classrooms, how often the storybooks are actually being used, what any child has been taught in conjunction with their use, or what conversations have ensued about their themes.”
The panel noted, however, that there was also no evidence “that the parents or their children have in fact been asked to affirm views contrary to their own views on gender or sexuality, to disavow views on these matters that their religion espouses, or otherwise affirmatively act in violation of their religious beliefs.” It also noted that the district’s assistant superintendent had said that “no student or adult is asked to change how they feel about these issues.” As a result, the panel voted 2–1 to deny an injunction.
That defeat prompted the parents to turn to the Supreme Court. “The question here is whether that right is infringed when a public school compels elementary schoolchildren as young as three to participate in instruction on gender and sexuality in violation of their parents’ religious beliefs—without notifying their parents or allowing them to opt out,” the plaintiffs claimed in their brief for the court. “To ask that question is to answer it.”
They pointed to the 1972 case Wisconsin v. Yoder, which they read to recognize a First Amendment right to “substantially interfere with their religious development.” Alan Schoenfeld, who argued for the school district, urged the justices not to embrace the plaintiffs’ far-reaching theory. He noted that Yoder dealt with a much different set of circumstances: namely, a group of Amish families who wanted to withdraw their students from public schools after eighth grade and continue their education through vocational work at home.
“Adopting [their] view of the case would conscript courts into playing the role of school board, a task for which this court has recognized they are ill suited,” he said in his opening remarks. “And a constitutional requirement to provide opt-outs from anything someone finds religiously offensive would mean public schools must find alternative classrooms, supervision for young students, and substitute lessons each time a potentially offensive topic arises.”
The court’s conservative members did not blanch at that prospect. “I guess I am a bit mystified as a lifelong resident of the county how it came to this,” Kavanaugh remarked at one point during Baxter’s argument. He suggested broadening the court’s legal test from whether the school district’s actions amounted to “coercion,” which would be a tall order in this case, to whether the actions amounted to a “burden” on the plaintiffs’ First Amendment rights, which would be a much lower threshold for these plaintiffs to meet.
Kavanaugh also suggested that the court had a duty of sorts to intervene. Schoenfeld noted offhand that the Montgomery County School Board was “democratically elected,” which the justice apparently interpreted as a dig against the court. “You’ve mentioned a few times that the school board was democratically elected and being on the school board is a hard job,” he commented. “We all respect that. But that can’t be the end of it, right? We’re here to protect liberty and the Constitution from the democratic excess.”
Finally, Kavanaugh framed the issue as one of “religious liberty” that stretched back to Maryland’s founding in the colonial era. “Maryland was founded on religious liberty and religious tolerance, a haven for Catholics escaping persecution in England going back to 1649,” he noted at one point. Kavanaugh then described Montgomery County as a “beacon of that religious liberty for all these years” and told Schoenfeld that he was “surprised” that “this is the hill we’re going to die on, in terms of not respecting religious liberty, given that history.”
Some of the questions appeared to be driven by conservative media hyperbole rather than the factual record. Justice Neil Gorsuch asked at one point about a since-withdrawn book that featured a woman with purple hair wearing a leather jacket. “That’s the one where they are supposed to look for the leather and bondage, things like that, right?” he asked Schoenfeld. “It’s not bondage,” Schoenfeld quickly replied. “A sex worker?” Gorsuch continued. “It’s a woman in a leather jacket,” the lawyer insisted.
The only justice more hostile to the school district than Kavanaugh was Alito, who appeared to take personal offense to the idea that a Maryland school would feature LGBT-inclusive books in its curriculum. “So suppose a school says we’re going to talk about same-sex marriage, and same-sex marriage is legal in Maryland, and it’s a good thing, it’s moral, it makes people happy, same-sex couples form good families, they raise children,” he said at one point, with a faint undertone of sarcasm.
“Now, there are those who disagree with that,” he continued. “Catholics, for example, they disagree with that. They think that it’s not moral, but they’re wrong and they’re bad and anybody who doesn’t accept that same-sex marriage is normal and just as good as opposite-sex marriage is not a good person.” What if the school teaches that to students, he asked Schoenfeld, who agreed that it would be coercive.
Alito also aired some grievances toward the Supreme Court bar in general, hinting that they were elitist and out of touch. “You’ve got to send your children to school,” Alito snarked at one point. “You can’t afford to send them to any place except the public school, unlike, you know, most of the lawyers who argue cases here. They can send their children to private schools, and they think that that’s the way most of the world is. But it’s not. It’s just too bad.”
The court’s three liberal justices, who were clearly outgunned, tried instead to find limiting principles to the plaintiffs’ arguments. Justice Sonia Sotomayor asked about the line between when exposure to a fact or idea becomes coercive or violates one’s religious beliefs. “Is looking at two men getting married, is that the religious objection?” she asked Eric Baxter, who represented the plaintiffs.
“Again, it would depend on the individual beliefs of the clients,” he replied. “For example, many parents would object to their child being exposed to something like pornography or extreme violence.” That answer drew a subtle rebuke from Sotomayor. “We’re not going to go there, counsel,” she warned, before re-asking her question. “Our objections would be even to reading books that violate our clients’ religious beliefs,” Baxter said.
That may sound defensible in theory but would be nightmarish in practice. A friend-of-the-court brief filed by the National Education Association noted that navigating an expansive rule for opt-outs would have highly disruptive effects for educators and administrators as they try to develop a curriculum for students in a pluralistic American society. The organization also warned that it could have a divisive and harmful effect on other students.
“Consider, for example, how a student with same-sex married parents might react when told that references to the mere existence of families like his are so objectionable that several of his fellow classmates must leave the room,” the organization told the court. “Or how a Jewish student might feel when she is required to bring home a note alerting parents that lessons on her religious heritage could be offensive and offering alternative learning arrangements for the children of objecting parents.”
A ruling in favor of the plaintiffs would be in keeping with the Roberts court’s general approach to religious freedom cases, where it tends to be highly sensitive to claims and sharply hostile to government organizations on the other side. Tuesday’s oral arguments did not give a clear impression of where the justices will draw the line. A decision is likely to come by the end of June when the court’s term traditionally ends. That would give parents and educators at least the rest of the summer break, at minimum, to wrestle with the fallout.
