High court says parents can opt children out of certain LGTBQ-related instruction
Dissent fears ruling ‘threatens the very essence of public education’
Parents’ rights to practice their religion in the way they raise their children extends to having the right to opt their children out of public-school instruction that undermines those religious beliefs, the U.S. Supreme Court ruled today.
The 6-3 decision in the Mahmoud v. Taylor case involves a dispute in Montgomery County, Md., where the school district during the 2022-23 school year ended the ability of parents to opt out of classes in kindergarten through fifth grade where storybooks described as “LGTBQ-inclusive” would be read. The parents, made up of Muslims, Orthodox Christians and others, sought an injunction to reinstate the ability to opt out.
The school district had argued that allowing for the opt-outs would be unwieldy and that the books in question were designed to promote inclusivity and respect rather than to indoctrinate.
Samuel Alito, writing for a majority that included Chief Justice John Roberts along with Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, disagreed: He found the books “unmistakably normative” in the way they presented views contrary to the parents’ religious beliefs. Justice Clarence Thomas wrote a concurring opinion largely agreeing with the majority, while Justice Sonia Sotomayor wrote a vigorous dissent that was signed on to by the other two members of the court’s liberal wing, Elena Kagan and Ketanji Brown Jackson.
The dissent predicted that the ruling will “will create a nightmare for school administrators” in part because of the wide variety of religious beliefs they will need to accommodate.
Decision cites 1972 ruling
The high court based its ruling largely on Wisconsin v. Yoder, a 1972 decision in which the high court ruled in favor of Amish parents who wanted to withdraw their children from conventional schooling after the eighth grade. Yoder recognized that parents have a right “to direct the religious upbringing of their children,” and that this right can be infringed by laws that pose “a very real threat of undermining” the religious beliefs and practices that parents wish to instill in their children.
As the dissent noted, today’s ruling will apply to subject material that goes far beyond that of the textbooks at issue, such as biological evolution and views on history. It also could affect classes that include activities such as yoga and meditation. As a practical matter, nearly all school districts have provided parents the ability to opt their children out of many kinds of instruction, but today’s ruling will give school districts less flexibility in how they do so when parental objections are based on religious grounds.
The majority opinion didn’t address matters such as evolution, however, focusing on the specific textbooks at issue. It found that the textbooks did more than promote civility and inclusivity, as the school districts contended, but advocated for views on sexuality that are contrary to those held by many parents. Referring to the book Uncle Bobby’s Wedding, Alito wrote:
The book therefore presents a specific, if subtle, message about marriage. It asserts that two people can get married, regardless of whether they are of the same or the opposite sex, so long as they “love each other.” ... That view is now accepted by a great many Americans, but it is directly contrary to the religious principles that the parents in this case wish to instill in their children.
It is significant that this book does not simply refer to same-sex marriage as an existing practice. Instead, it presents acceptance of same-sex marriage as a perspective that should be celebrated.
Another book cited by Alito as presenting a moral viewpoint was Born Ready: The True Story of a Boy Named Penelope, which tells the story of child apparently born biologically female:
The story is told from the perspective of Penelope, who at one point says “If they’d all stop and listen, I’d tell them about me. Inside I’m a boy.” When Penelope’s mother later assures her that “‘If you feel like a boy, that’s okay,’” Penelope responds: “‘No, Mama, I don’t feel like a boy. I AM a boy.’” Penelope tells her mother:
“‘I love you, Mama, but I don’t want to be you. I want to be Papa. I don’t want tomorrow to come because tomorrow I’ll look like you. Please help me, Mama. Help me to be a boy.’”
Penelope’s mother then agrees that she is a boy, and Penelope says: “For the first time, my insides don’t feel like fire. They feel like warm, golden love.” Later, after the family starts treating Penelope as a boy, Penelope’s brother complains that “ ‘You can’t become a boy. You have to be born one.’ This comment draws a rebuke from Penelope’s mother: “ ‘Not everything needs to make sense. This is about love.’” 1
Describing such books, Alito wrote:
[W]e cannot accept the Board’s characterization of the “LGBTQ+-inclusive” instruction as mere “exposure to objectionable ideas” or as lessons in “mutual respect.” ... As we have explained, the storybooks unmistakably convey a particular viewpoint about same-sex marriage and gender. And the Board has specifically encouraged teachers to reinforce this viewpoint and to reprimand any children who disagree. That goes far beyond mere “exposure.”
A warning from the minority
The three-member minority sharply disagreed with Alito’s characterization of the books:
The majority’s myopic attempt to resolve a major constitutional question through close textual analysis of Uncle Bobby’s Wedding also reveals its failure to accept and account for a fundamental truth: LGBTQ people exist. They are part of virtually every community and workplace of any appreciable size. Eliminating books depicting LGBTQ individuals as happily accepted by their families will not eliminate student exposure to that concept. Nor does the Free Exercise Clause require the government to alter its programs to insulate students from that “message.”
They also predicted that the ruling would adversely affect the nature of public schools:
Today’s ruling threatens the very essence of public education. The Court, in effect, constitutionalizes a parental veto power over curricular choices long left to the democratic process and local administrators. That decision guts our free exercise precedent and strikes at the core premise of public schools: that children may come together to learn not the teachings of a particular faith, but a range of concepts and views that reflect our entire society. Exposure to new ideas has always been a vital part of that project, until now.
For ease of reading, page number citations have been omitted from this excerpt. Words in regular typeface were italicized for emphasis in Alito’s opinion.