LGBTQ Kids Lose at the Supreme Court—and Parental Rights Win – Mother Jones

Mother Jones illustration; Pablo Martinez Monsivais/AP; Tim Mossholder/Unsplash

The US Supreme Court has reinforced Trump administration policies in expanding the concept of parental rights. In Mahmoud v. Taylor’s 6-3 decision today, the court’s conservative justices further transformed the educational landscape by ruling that public schools that do not allow parents to opt their children out of any teaching that goes against their religious beliefs—in this case, LGBTQ-inclusive books—likely violate those parents’ religious freedom.

“The practice of educating one’s children in one’s religious beliefs, like all religious acts and practices, receives a generous measure of protection from our Constitution,” Justice Samuel Alito, writing for the majority, noted. “This is not merely a right to teach religion in the confines of one’s own home.”

The majority sided with the parents in their request for a preliminary injunction on the lack of opt-out policy. But then sent the case back down to the lower courts to rule accordingly, noting that the school district “should be ordered” to notify the parents if any book at issue is used during class time and allow them to withdraw their children. By the time the case made it to the Supreme Court, most of the parents had already withdrawn their children from the school district.

The case centers on the Montgomery County, Maryland, school district that amended its opt-out policy to prevent parents from withdrawing their children from English coursework that used LGBTQ-inclusive books in grades K-5. A group of mostly Christian and Muslim parents sued, arguing that exposing their children to the books amounts to government indoctrination.

The court sided with a group of religious parents who argued that their school district’s policy to require students to read LGBTQ-inclusive books amounted to a First Amendment violation of their rights. In rejecting the framework for what counts as unconstitutional religious infringement that the majority of circuit courts have adopted, the majority ruled that children’s mere exposure to concepts that go against their parents’ religious beliefs can unlawfully infringe on the parents’ religious practice. Significantly, the majority ruled that, because the policy burdens parents’ religious liberty, it must be evaluated under strict scrutiny—the highest constitutional bar requiring that a compelling government interest be accomplished by the most narrow policy possible.

In a blistering dissent, Justice Sonia Sotomayor wrote that the legacy of public schools as places fostering children’s appreciation and involvement in a multicultural society will now be “mere memory.” “Casting aside longstanding precedent, the Court invents a constitutional right to avoid exposure to ‘subtle’ themes ‘contrary to the religious principles’ that parents wish to instill in their children,” she wrote. “Exposing students to the ‘message’ that LGBTQ people exist, and that their loved ones may celebrate their marriages and life events, the majority says, is enough to trigger the most demanding form of judicial scrutiny.”

Conservatives have increasingly used parental rights to advance a wide range of policies, from laws that criminalize helping minors get out-of-state abortions to allowing parents to waive weekly work limits for older teenagers. In no area, however, has parental rights rhetoric been more prominently deployed than in education. In addition to a flurry of state proposals to restrict teaching about gender and sexuality, critical race theory, and ban school-authorized LGBTQ clubs, under President Donald Trump, the federal government has used parental rights to justify eliminating DEI programs in K–12 schools and launching investigations into policies that protect queer students from being outed to their parents.

As I previously reported, the case presented a significant—if unusual—vehicle for the court to vastly expand the legal understanding of parental rights, which attorneys for the plaintiffs from the Becket Fund for Religious Liberty argued were inextricably linked. The question of whether or not children were truly “indoctrinated” was not the issue before the court. Instead, the parents asked the court to break from the majority of appellate courts in holding that a lack of available opt-out policies unconstitutionally burdened their religious expression.

The evidentiary record was scant, full of hypotheticals but no actual examples of the book being used to coerce students into rejecting their faith—the most concrete evidence included guides for teachers on how to navigate classroom conflict arising from reading the LGBTQ storybooks. “The record is seriously underdeveloped on whether and how these support materials are used,” Alan Schoenfeld, the attorney for the school district, said during oral arguments.

Alito dismissed that concern, writing that based on the materials provided in the records, “The Board has left little mystery as to what that discussion might look like.” He continued, “We do not need to ‘wait and see’ how a particular book is used in a particular classroom on a particular day before evaluating the parents’ First Amendment claims.”

School boards, school administrators, and educational law scholars warned in amicus briefs that a sweeping requirement for opt-outs on the basis of religion could expand to other areas of public schooling. Previous failed efforts to challenge curricula, including teachings about evolution and readings that depict boys and girls acting outside of traditional gender roles, could create a new path toward free exercise claims.

Requiring opt-out policies for LGBTQ storybooks, alongside state and national actions that limit recognition of the queer community in public schools and ban gender-affirming care for minors, harms all children, Jess Braverman, legal director of LGBTQ advocacy nonprofit Gender Justice, told Mother Jones ahead of the decision. “I’m not sure where this lands in terms of kids having any autonomy at the end of the day, to be exposed to new or different ideas, or to be kids,” they say.

Sotomayor raised a similar concern in her dissent, writing that if LGBTQ-inclusive instruction can trigger strict scrutiny, it’s difficult to imagine what school policy wouldn’t trigger the stringent constitutional test—and she argues the majority gives “no guidance on how to constrain this rule. “If a student calls a classmate a ‘sinner’ for not wearing a head covering or coming out as gay, how can a teacher respond without ‘undermining’ that child’s religious beliefs?” she writes. “Can parents litigate the content of teacher responses and impose scripts or opt-out policies for everyday interactions designed to foster tolerance and civility?”

“One thing is clear, however,” Sotomayor wrote. “The damage to America’s public education system will be profound.”