In one of its final decisions this term, the Supreme Court has affirmed the right of religious parents to follow their faith in making decisions about their children’s public school education.
In Mahmoud v. Taylor, the court sided with parents who asked that they be notified and given the chance to opt their children out of instruction that violates their faith on matters of sexuality.
The case originated in Montgomery County, Maryland, where the school board requires certain pro-LGBTQ storybooks to be incorporated in the English language arts curriculum for all students, including those as young as five. The board had millions of books to choose from, but it picked these books specifically to influence students’ thinking about sexuality and to challenge parents’ traditional views.
How do we know? The board told teachers so, and it even described ways for them to accomplish these goals.
The pushback predictably included parents, but teachers and administrators also balked, questioning the efficacy and age-appropriateness of this scheme.
Initially, the board said that parents would be notified when this controversial material would be used and allowed to opt their children out.
Like most school districts, Montgomery County provides for parents to opt their kids out of all sorts of things, including the use of sex education curriculum.
Then, without explanation, the board abruptly canceled this accommodation policy and took the opposite position—making participation in pro-LGBTQ instruction mandatory for even the youngest students and telling teachers not to notify parents at all.
With the Justice Department’s support, a group of religious parents sued. Their particular faiths differed, but they agreed that exercising that faith included guiding their children in matters of sexuality. By not only blocking them from doing so, but also imposing its own sexual ideology, they said, the school board violated their First Amendment right to exercise religion.
The parents said they would likely prevail on the merits and, therefore, asked for a preliminary injunction ordering that they be notified and allowed to opt out in the meantime.
The district and appeals courts denied their request by utilizing a very narrow concept of what burdens religious exercise. Nothing short of the government compelling someone to abandon their religious beliefs, they said, can burden the exercise of religion—a standard that reduces the “exercise” of religion to little more than private religious beliefs or perhaps formal religious worship.
The First Amendment prohibits an “establishment of religion” and protects the “free exercise” of religion. The Constitution’s framers thought of religious establishment narrowly and religious exercise broadly.
Now, though, judges have turned the First Amendment on its head. They see religious establishments that do not exist and, as the lower courts did in this case, ignore the very real ways in which the government interferes with religious practice.
In a 6-3 vote Friday, the Supreme Court reversed the lower courts and granted the parents a preliminary injunction. Writing for the majority, Justice Samuel Alito explained that the right to exercise religion includes the parents’ right to direct the religious instruction of their children. Putting parents on the sidelines while schools impose their own sexual ideology on students obviously interferes with that right.
As Alito explained, “the Board’s introduction of the ‘LGBTQ+-inclusive’ storybooks—combined with its decision to withhold notice to parents and forbid opt outs—substantially interferes with the religious development of their children.”
Many parents have no choice but to send their children to a public school, a decision that should not require them to surrender their constitutional right. The bottom line, Alito wrote, is that “government burdens the religious exercise of parents when it requires them to submit their children to instruction that poses ‘a very real threat of undermining’ the religious beliefs and practices that the parents wish to instill.”
Justice Sonia Sotomayor’s dissent, joined by Justices Elena Kagan and Ketanji Brown Jackson, distorted the parents’ position the same way the lower courts did. She mischaracterized them as demanding notice and an opt-out “of every lesson plan or story time that might implicate a parent’s religious beliefs.”
The parents never took that position. Instead, they objected to instruction that poses a “very real threat of undermining” those beliefs and the parents’ right to direct their children’s religious instruction.
The fact is, as Alito pointed out, these materials are “unmistakenly normative,” designed to promote certain values and beliefs and to discourage others regarding sexuality and gender. The threat to parents’ ability to guide their children’s instruction on such sensitive matters is obvious.
Thankfully, the Supreme Court has never adopted the narrow, crabbed view of religious freedom that the lower courts and Sotomayor did in this case. The First Amendment, Alito wrote, is not as “feeble” as Sotomayor claims. It protects us against much more than compulsion to abandon our religious beliefs.
The Constitution gives parents a general right to direct their children’s upbringing and education and, separately, a specific right to exercise religion. This case arose where those rights intersect, and the Supreme Court’s decision strengthens both of them.