A likely win for parents

Fifty years ago, the U.S. Supreme Court recognized that an important component of religious liberty is parents’ right to raise their children in line with their faith. In that case, Wisconsin v. Yoder, the Court said that Amish parents were entitled to a First Amendment exemption to truancy laws that burdened their traditional way of life.

This week, the Supreme Court confronted a new case asking that question in a much more controversial context. A local school board adopted a curriculum for students in pre-kindergarten through fifth grade that was shot through with material supporting gay and transgender lifestyles. A coalition of parents from a variety of religious backgrounds—Muslims, Christians, and Jews—asked to remove their children from the classroom when this particular content is presented while otherwise remaining enrolled in school, just as happens in districts nationwide for older students in sex ed. But the school district said no, such an exemption would violate their policy.

That policy came under the searching scrutiny of the Supreme Court on Tuesday as the justices pressed lawyers for the parents, school district, and federal government on how to balance parents’ religious liberty rights with the school’s curricular goals and practical needs. Thankfully, at least six justices showed a strong inclination to support the parents’ right to shape their children’s beliefs.

For the conservative justices, the central question was one of burden: Does the curriculum burden the parents’ religious beliefs when it uses the power and influence of the government, exercised through teachers, to teach something in conflict with those beliefs? The answer is yes, so the easy solution is an opt-out. As Justice Brett Kavanaugh said to the lawyer for the parents: “You’re not seeking to prohibit instruction in the classroom. You’re just seeking not to be forced to participate in that instruction.”

For the liberal justices, the question was coercion. Does the government coerce the conscience or beliefs of children when it simply presents them with information, and then they can do with it as they will (including going home and asking their parents about it). Justice Sonia Sotomayor asked, “Looking at two men getting married—is that the religious objection? The most they’re doing is holding hands.” You can almost hear the implicit question: What’s the big deal? Who cares? Don’t kids see the same just watching television these days?

The answer, of course, is that these parents care—deeply—and they teach their children consistent with their faith. And teachers are also role models who exercise an outsized influence, especially on young children in elementary school. The Supreme Court has found previously that the social pressure to stand during an invocation at a high school graduation exercises a coercive influence—how much more so a teacher in a classroom with required curriculum?

Many prior lower court lawsuits have tested the balance between the right of the community to determine curriculum in public schools (usually through an elected school board) and the rights of individual parents concerned with what that curriculum teaches. Some judges have simply shrugged and told parents to pay tuition at a private school if they don’t like what their public school teaches.

Thankfully, this case likely signals the end of that sort of philosophy. For one thing, that option is available only to parents with financial means and logistical capacity to select a private school. Parents pay taxes to support public schools, and many may like the programs or teams at their public school but just don’t want ideology that undermines their faith crammed down their kids’ throats as the price.

In the end, the six justices usually aligned with the conservative majority seemed ready to rally around recognizing a right of religious parents to opt-out from curriculum that conflicts with their beliefs, whether on sex or science or anything else. That’s an important step forward, but it still leaves many nonreligious parents without an alternative, as Melissa Moschella writes for the Wall Street Journal. It also does not help religious parents who object to curriculum on a nonreligious basis, like when a teacher talks about a politically charged topic or does a unit on diversity and inclusion.

A win this June, then, is likely just a first step toward a future holding recognizing the right of all parents not under the First Amendment’s free exercise clause, but under the Fourteenth Amendment’s broader (but less textually specific) liberty guarantees. It’s a shame some districts are not ready to extend protections to parents as a matter of legislative grace, but it sounds like the Supreme Court will now require it as a matter of constitutional command.