Supreme Court likely to rule for parental opt-out on LGBTQ books in schools

The Supreme Court on Tuesday was sympathetic to a group of Maryland parents who want to be able to opt their elementary-school-aged children out of instruction that includes LGBTQ+ themes. The parents argued that the local school board’s refusal to give them that choice violates their religious beliefs and therefore their constitutional right to freely exercise their religion. During nearly two-and-a-half hours of oral argument, a majority of the justices seemed to agree with them, with several justices questioning whether there would even be any harm to simply allowing the parents to excuse their children from the instruction. 

The parents in the case have children in the public schools in Montgomery County, which is in the Washington, D.C., suburbs and is one of the most religiously diverse counties in the United States. The parents include Tamer Mahmoud and Enas Barakat, who are Muslim, Melissa and Chris Persak, who are Roman Catholic, and Svitlana and Jeff Roman, who are Ukrainian Orthodox and Roman Catholic. 

In 2022, the county’s school board approved books featuring LGBTQ+ characters for use in its language-arts curriculum. One book describes the story of a girl attending her uncle’s same-sex wedding, for example, while another book, Pride Puppy, tells the story of a puppy that gets lost during a Pride parade. 

The following year, the board announced that it would no longer allow parents to excuse their children from instruction using the LGBTQ-themed storybooks. That prompted the parents in this case to go to federal court, where they argued that the board’s refusal to allow them to opt their children out violated their rights under the First Amendment to freely exercise their religion because it stripped them of their ability to instruct their children on issues of gender and sexuality according to their respective faiths and to control how and when their children are exposed to these issues. 

The lower courts refused to temporarily require the school board to notify the parents when the storybooks would be used and give them a chance to opt their children out of instruction. A federal appeals court reasoned that on the “threadbare” facts before it, the parents had not demonstrated that exposing their children to the storybooks compelled the parents to violate their religion. 

Several justices had questions about what it means for children to be “exposed” to the storybooks. Justice Clarence Thomas asked Eric Baxter – who argued on behalf of the parents – whether the LGBTQ-themed storybooks were merely present in the classroom, or instead actively used as part of the curriculum. 

Baxter explained that teachers are required to use the books, with the school board suggesting that they do so five times before the end of the year. The whole point of including the storybooks in the curriculum, he stressed, was that every student would be taught from them. 

Justice Amy Coney Barrett suggested that the teaching of the content in the storybooks might amount to more than mere exposure. Presentation of an idea as fact, such as telling students that “this is the right view of the world,” she posited, is different from exposure – such as telling students that “some people think” a particular thing. 

Justice Neil Gorsuch echoed this idea, indicating that for a teacher to tell students that “some people think X, and X is wrong and hurtful and negative’” would be “more than exposure on your theory.” 

The justices also focused on the related idea whether being exposed to the storybooks actually coerces the parents to violate their religion. Justice Sonia Sotomayor maintained that it does not. “Haven’t we made very clear,” she asked Baxter, “that the mere exposure to things that you object to is not coercion?” 

But Chief Justice John Roberts appeared more skeptical. He noted that even if the county policy does not require students “to affirm what is being taught in books or lessons,” that may not be “a realistic concept for a five-year-old.” Telling such young students that they don’t have to agree with the teacher, Roberts observed, “may be a more dangerous message.” 

Justice Samuel Alito appeared firmly on the side of the parents. He asked Alan Schoenfeld, who represented the school board, about a scenario in which a teacher told students that anyone who believed that same-sex marriage was not moral “is not a good person.” 

Schoenfeld agreed with Alito that such comments would “absolutely” be coercion at the point that they became derogatory of people with particular beliefs.

But Alito seemed unsatisfied, emphasizing that under the county’s current policy a school can teach children moral principles that are “highly objectionable to parents and they can’t opt out.”

The court’s Democratic appointees expressed concern that the parents’ proposed rule would have a wide sweep, giving them broad discretion to opt out. Justice Elena Kagan first pressed Baxter to explain his rule. At bottom, she asked, “is the key question that when a religious person confronts something in a classroom that conflicts with her parent’s religious beliefs, then the parent can opt out?

When Baxter responded that it is, Kagan worried aloud that parents will then decide that it is unfair for their children to have to leave the classroom to avoid the materials to which they object, leading to a challenge to the materials themselves. 

Kagan returned to this topic with Schoenfeld, observing that Baxter had emphasized that opt-outs were relatively rare in other scenarios, such as high schools and the teaching of evolution – suggesting that they would also be limited if the court were to rule for the parents. 

Schoenfeld pushed back, telling Kagan that “if you constitutionalize it, people will invoke it.” 

Justice Sonia Sotomayor echoed Kagan’s concerns about the potentially broad scope of the parents’ position, noting that there have also been objections to “biographical material about women who have been recognized for achievement outside their home,” as well as books featuring divorce, interfaith marriage, and immodest dress. Where, she queried, will the parents draw the line beyond requiring the school to inform them of the curriculum and then allow them to opt out? 

Justice Ketanji Brown Jackson voiced similar skepticism. She asked how far the parents’ rule would extend. For example, she inquired, could a parent ask to have her child not placed in a classroom with a gay teacher who has pictures of her same-sex wedding in the classroom? 

Several of the justices, however, seemed to see the question as a fairly straightforward one. As Justice Brett Kavanaugh asked Baxter, the parents are not “seeking to stop instruction in the classroom,” but only “not to be forced to participate in it.” And if the parents are simply seeking to have their children excused from instruction using the storybooks, Alito asked, “what is the big deal about allowing them to opt out of this?” 

Schoenfeld maintained that the school board had tried to allow parents to opt out of instruction, but it simply wasn’t administratively feasible. But several justices remained unconvinced. Alito observed that students can opt out of health class, while Kavanaugh expressed frustration that the school board couldn’t accommodate the parents when “every other school board has opt-outs for all sorts of things” – as does Montgomery County itself.

Schoenfeld countered that “dozens of students” had been opting out, and that it was not possible for school officials to make arrangements for the space, supervision, and alternate instruction needed for the many students who would opt out. 

Jackson chimed in that the storybooks were not being used for a discrete unit such as gender and sexuality, but instead as part of the English and language arts curriculum. “I think that seems pretty infeasible,” she suggested, for people to start leaving the classroom whenever these storybooks are being used in English class. 

Baxter suggested that the school board had only raised the question of the feasibility of the opt-outs later in the litigation. It had originally said that it wanted to eliminate the opt-outs, he emphasized, to ensure that everyone benefited from the lessons in inclusivity that the storybooks were intended to teach. 

Kavanaugh told Schoenfeld that the point of the court’s religion cases “is to look for the win/win” – to simultaneously accommodate religion and allow the government to pursue its goals. In this case, he stressed, the parents “aren’t asking MCPS to change its curriculum” but instead “just want to be able to opt their children out so they aren’t exposed to things that are contrary to their own religious beliefs.” By the end of Tuesday’s oral argument, a majority of the justices appeared poised to give them that chance.