Writing for the 6-3 majority, Justice Alito said the right to direct the religious upbringing of one’s child ‘would be an empty promise if it did not follow those children into the public school classroom.’
On Friday morning, the Supreme Court strongly rebuked overzealous ideologues running Montgomery County, Maryland, schools and reaffirmed the Constitution’s protection for religious freedom. Mahmoud v. Taylor joins the ranks of other key Supreme Court civil-rights cases in safeguarding Americans of faith and their children.
The victors of Mahmoud are a courageous group of parents from diverse religious traditions in Montgomery County, who object to their children being subjected to a collection of storybooks imbued with LGBTQ+ content that undermines the tenets of their faith. As I wrote previously for the Register, Montgomery County’s school board decided to weave the storybooks throughout the literature curriculum for pre-K through sixth grades. While Maryland requires schools to notify parents when their children will be given classes discussing family life and human sexuality and respects parents’ right to opt their children out of such instruction, the school board refused to honor this basic parental right.
The parents — represented by the religious-freedom powerhouse law firm Becket Fund for Religious Liberty — went to court. In addition to being wildly age-inappropriate and at odds with biological reality, the parents argued the storybooks are inconsistent with their religious beliefs and that denying them notice and the opportunity to opt their children out of exposure to the books violated their rights under First Amendment. Although lower courts refused their pleas, the Supreme Court heard the parents and took decisive action.
The Free Exercise Clause of the First Amendment, explained Justice Samuel Alito for the 6-3 majority, “protects the ability of those who hold religious beliefs of all kinds to live out their faiths in daily life through the performance of religious acts.” He added that, “for many people of faith across the country, there are few religious acts more important than the religious education of their children.” Not confined merely to “a right to each religion in the confines of one’s own home,” this right includes “the choices that parents wish to make for their children outside the home.” Observing that “due to financial and other constraints,” many parents “have no choice but to send their children to a public school.” Consequently, the right to direct the religious upbringing of one’s child “would be an empty promise if it did not follow those children into the public school classroom.”
Contrary to the lower court of appeals, which referred to the record as “threadbare,” the Court’s majority had no problem finding that “the Board’s introduction of the LGBTQ-themed storybooks and the failure to provide notice and opt-out options for parents meets that test: it does interfere with the children’s religious development and imposes a burden on religious exercise.” The books at issue, explained Alito, are “unmistakably normative” and are “clearly designed to present certain values and beliefs as things to be celebrated and certain contrary values and beliefs as things to be rejected.”
Lest anyone think that today’s decision is overly “prudish,” Alito shared a few short descriptions to illustrate the “general tenor” of the storybooks. One book concerning same-sex marriage, for example, “does not simply refer to same-sex marriage as an existing practice,” but as one “to be celebrated.” Other storybooks on sex and gender reject the belief that biological sex reflects divine creation and instead “encourage children to adopt a contrary viewpoint.” Alito also noted that guidance documents “specifically encouraged teachers to reinforce this viewpoint and to reprimand any children who disagree.” Together, these books and guidance “carry with them a very real threat of undermining the religious beliefs that the parents wish to instill in their children.”
Respectfully disagreeing with dissenting Justice Sonia Sotomayor, Alito made clear that the storybook collection goes far beyond “merely exposing students to the message that LGBTQ people exist and to teach them to treat others with kindness.” He also rejected Sotomayor’s attempt to limit the Free Exercise guarantee to “nothing more than protection against compulsion or coercion to renounce or abandon one’s religion.” Instead, the guarantee “embodies a principle of general applicability, and that principle provides more robust protection for religious liberty.” Alito also took to task the dreadful suggestion by some civil-rights organizations that any parents who object can send their children to private school or home school. “It is both insulting and legally unsound to tell parents that they must abstain from public education in order to raise their children in their religious faiths, when alternatives can be prohibitively expensive and they already contribute to financing public schools.”
Given that the refusal to provide parents notice and the opportunity to opt their children out of exposure to the storybooks “substantially interferes with the religious development of the parents’ children,” the Court applied the highest level of scrutiny to the school board’s policy. To concerns regarding the “administrability” of offering notice and opt-outs, Alito was unpersuaded. “The Board cannot escape its own obligation to honor parents’ free exercise rights by deliberately designing its curriculum to make parental opt out more cumbersome.” As to the board’s ironic concern that too many parents would choose to opt out, Alito quipped that “there is no de maximus exception to the Free Exercise Clause.”
Justice Clarence Thomas, in a powerful concurring opinion, gave the Montgomery County School Board an important “dressing down.” Sex education, Thomas observed, is a “relatively recent development — and the practice of teaching sexuality- and gender-related lessons to young children even more so.” He added that “there is little to suggest that these lessons are critical to the students’ civic development.” In the absence of any historical support for banning parental opt-outs, the board, observed Thomas, seeks to defend its policy by claiming it “promotes equity and inclusion and diminishing classroom disruption.” Such “conformity-driven rationales” do not amount to “interests of the highest order.” Aware of the indoctrination being woven throughout school curricula, Thomas offered the following good counsel: “Insofar as schools or boards attempt to employ their curricula to interfere with religious exercise, courts should carefully police such ‘ingenious defiance of the Constitution’ no less than they do in other contexts.”
Having concluded that the parents were entitled to a preliminary injunction, the Court ordered the school board to notify the parents “in advance whenever one of the books in question or any other similar book is to be used in any way and to allow them to have their children excused from that instruction.”
Mahmoud v. Taylor not only grants Montgomery County public-school parents the right to opt out of gender madness but crucially reaffirms the special protection under the Constitution for the sacred role of parents in the education and formation of their children.