The U.S. Supreme Court is weighing the extent to which parents can opt their children out of public school instruction in which LGBT-themed books are read as part of the curriculum.
The Supreme Court heard oral arguments on Tuesday morning in the case of Mahmoud, Tamer, et al. v. Taylor, Thomas W., et al. The case centers on whether public school parents in Montgomery County, Maryland — the state’s largest school district — have a constitutional right under the First Amendment to exempt their children from lessons that feature LGBT ideology.Â
Eric Baxter of the Becket Fund for Religious Liberty argued the case on behalf of a diverse coalition of Christian, Muslim and Jewish parents, saying in his opening arguments that “petitioners deserve complete preliminary relief” from the school district because it won’t allow them to opt their children out of such instruction.
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“Exempting students for some religious reasons but not others cannot be squared with the First Amendment,” said Baxter. “In a system where thousands of students are daily opted in and out of the class for multiple reasons, there’s no basis for denying opt-outs for religious reasons.”
Justice Elena Kagan, one of the three liberal members of the court, expressed concern about “lines” with opt-outs, believing that if the plaintiffs were successful, there would be “opt-outs for everyone” no matter how trivial the parental issue.
Baxter replied that “schools everywhere in the country” are working under the assumption that sincere religious objections can be a reason for an opt-out.
He added that Montgomery County also operated under that rule and that “there were never these kinds of problems until they introduced a curriculum that was clearly indoctrinating students.”
Justice Ketanji Brown Jackson wondered if the Supreme Court should “wait until we have a record” that is more detailed about what was happening in the classrooms, while Baxter argued that the “record is undisputable.”
Jackson grilled Baxter on possible scenarios like students putting up pro-LGBT posters or a teacher having a photo of a same-sex partner on her classroom desk, asking if parents can opt out of seeing those things.
Baxter argued that such issues are not coming up in the courts and that any parents suing a school district on such issues would likely lose based on strict scrutiny.Â
The lawyer clarified that simply having the LGBT-themed books in the schools is “exposure,” but having the teacher openly endorse the messages of the books to a captive student audience is “coercion.”
Alan Evan Schoenfeld argued on behalf of the school district, stating in his opening comments that “every day in public elementary school classrooms across the country, children are taught ideas that conflict with their family’s religious beliefs.”
“Each of these things is deeply offensive to some people of faith, but learning about them is not a legally cognizable burden on free exercise,” Schoenfeld.
Schoenfeld claimed that a decision in favor of the plaintiffs “would conscript courts into playing the role of school board, a task for which this court has recognized they are ill-suited.”
Justice Samuel Alito, one of the court’s more conservative members, took issue with what he believed to be the school district’s rejection of sincerely held religious objections from parents. Alito asked Schoenfeld if he thought school officials could do whatever they wanted regarding curriculum.
“I don’t think it’s true that the public schools can do whatever they want,” he responded. “There are clear lines to be drawn; this court has drawn them.”
In October 2022, the Montgomery County Board of Education approved a group of LGBT-themed books for inclusion in schools’ English language arts curricula. After a large parents’ protest outside the school district office in Rockville in 2023, the parents sued the board, arguing that the school district violated their sincerely held beliefs.Â
U.S. District Judge Deborah Boardman, a Biden appointee, rejected the motion for a preliminary injunction in August 2023, concluding that the parents failed to show that the “use of the storybooks crosses the line from permissible influence to potentially impermissible indoctrination.”
In May 2024, a three-judge panel of the 4th U.S. Circuit Court of Appeals upheld the lower court ruling in a 2-1 decision, with Circuit Judge G. Steven Agee, a George W. Bush appointee, authoring the majority opinion.
“[T]here’s no evidence at present that the Board’s decision not to permit opt-outs compels the Parents or their children to change their religious beliefs or conduct, either at school or elsewhere,” wrote Agee.
Circuit Judge A. Marvin Quattlebaum, Jr., a Trump appointee, dissented, writing that the parents had “shown the board’s decision to deny religious opt-outs burdened these parents’ right to exercise their religion and direct the religious upbringing of their children by putting them to the choice of either compromising their religious beliefs or foregoing a public education for their children.”
“The board’s refusal to grant the parents’ requests for religious opt-outs to instruction with the books the board required be used to promote diversity and inclusivity to the LGBTQ+ community forces the parents to make a choice — either adhere to their faith or receive a free public education for their children. They cannot do both,” Quattlebaum said.
In January, the Supreme Court issued a miscellaneous orders list agreeing without comment to an appeal in the case of Mahmoud, Tamer, et al. v. Taylor, Thomas W., et al.
