Legal Docket: Supreme Court upholds parental rights

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JENNY ROUGH, HOST: It’s Monday the 30th of June.

Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Jenny Rough.

NICK EICHER, HOST: And I’m Nick Eicher.

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EICHER: First up on The World and Everything in It: Legal Docket. There is so much to cover, the final week of the Supreme Court term last week produced an enormous caseload. So many of them are of particular interest that we simply did not want to cram everything into a single day, and wind up giving you the superficial read on these cases that you can get anywhere.

We’ve divided up the work between our two main legal journalists, Jenny and Mary, and over the next four days, we’ll get everything covered without a fatiguing single day or two. So with that in mind, I’ve asked Mary Reichard to step in as well: good morning to you.

MARY REICHARD: Good morning. I like being called a legal journalist. So much better than being an illegal one.

EICHER: Tell a bit about what’s on your plate.

REICHARD: Yeah, I’m glad you did that. There were lots of opinions to read, not just in the number of cases, but the dissents and the concurrences. There’s a lot of reading between the lines, too, which I’ll say more about in a moment.

For me, I’m working on five decisions, including the birthright citizenship case, which really wasn’t about birthright citizenship, but about the separation of powers—which may in itself be of equal importance.

Then there’s the inmate on death row who wants his DNA tested. He won, but why he won is interesting. Also, a decision about the nondelegation doctrine—that’ll make your eyes glaze over—

EICHER: Yeah, but I noticed it’s about those taxes you pay on your phone bill, so that’s caught my attention!

REICHARD: Two others: One on sentencing criminal defendants and another on illegal aliens who overstay their visas.

But staying on immigration-related issues, the big “birthright citizenship” case I mentioned Trump v. CASA interpersonal sparks flew. The relationships among the justices and the Fourth of July fireworks flew early between Justices Amy Coney Barrett and Ketanji Brown Jackson. Justice Barrett utterly dismissed Justice Jackson’s bitter dissent as hypocritical—saying here’s a justice saying no one is above the law, and she ought to look in the mirror, in effect.

EICHER: Yeah, you know it’s going to be a zinger when it begins this way: Justice Jackson’s argument is, quoting here, “at odds with more than two centuries’ worth of precedent, not to mention the Constitution itself.” She went on—“Justice Jackson decries an imperial Executive while embracing an imperial Judiciary.” Continuing the quote: “Justice Jackson would do well to heed her own admonition: ‘[E]veryone, from the president on down, is bound by law.’ That goes for judges too.”

REICHARD: Hoo-boy. So I called up a friend who’s a former clerk to Justice Neil Gorsuch, someone who’s seen the Court from the inside. We’ve had him on before, Lael Weinberger, he’s now a law professor at George Mason, at the Scalia Law School. Just real quickly, here’s what he had to say about the sparks.

WEINBERGER: That line about an imperial executive doesn't justify an imperial judiciary? That is going to be a memorable encapsulation of this disagreement.

That’s tomorrow!

EICHER: Mary, thanks. I’ll let you get back to it.

REICHARD: Thanks!

EICHER: Now, Jenny, what’s on your plate today is the hugely significant Mahmoud case, dealing with parental rights in public education, and that one turned on the First Amendment freedoms for parents to direct the religious upbringing of their children. But quickly, what else are you working on?

ROUGH: A Texas law that requires porn websites to verify the ages of users, a case that asks if a state can block Medicaid payments to Planned Parenthood, and a case brought by Christian businesses who don’t want to pay for drugs that encourage high risk sex.

EICHER: With that, let’s jump in to Mahmoud versus Taylor and we begin in a children’s storybook.

LOVE, VIOLET: Mira was magnificent.

ROUGH: The book Love, Violet is about a little girl who wants to give a valentine to her crush, another little girl classmate named Mira.

LOVE, VIOLET: Suddenly Violet’s heart thundered like a hundred galloping horses … thumpity, thumpity, thumpity. … All day long Violet’s stomach lurched. What if Mira didn’t want her valentine? What if they never adventured?

The book is written for kids between the ages 4 and 8. And it’s one of five such books at issue in the case the Supreme Court ruled on last Friday.

EICHER: Back in 2022, Montgomery County Public Schools in Maryland introduced storybooks with gay and transgender themes into its elementary curriculum. But a group of parents raised religious objections.

In a 6 to 3 decision, the court ruled in favor of them. It will allow parents to opt-out their kids from the LGBTQ lessons. Justice Samuel Alito wrote the majority opinion, joined by Chief Justice John Roberts, as well as Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Justice Sonia Sotomayor wrote the dissent, joined by Justices Elena Kagan and Ketanji Brown Jackson.

ROUGH: Sahar Smith was standing outside the court the day of the decision.

SMITH: I absolutely believe that parents are the first and foremost responsible for their children’s education, not government. So I’m grateful for the opinion. … I listened to oral arguments, and the type of books being pushed on the children … robs children of their innocence.

Others feel they’ve been robbed. Mark Eckstein is a gay parent with kids in the Montgomery County school system.

ECKSTEIN: I wasn’t surprised but I was really disappointed. I get religious freedom, and I get this idea that parents want to control and have a say in the education of their child. That swings both ways. … I want my parental rights.

Montgomery County is the most religiously diverse in the nation, it’s culturally diverse, too.

ECKSTEIN: We have gay principals, here we have a council member who’s openly gay. I go in, in third grade, fourth grade, me and my husband … so the kids talk about it. So this notion that in elementary school some of the parents don’t want these themes until they go to college, it’s just wrong.

EICHER: Before analyzing the opinion, let’s recap the facts: After Montgomery County’s schools introduced the storybooks, some parents got active.

They wanted to instill different beliefs in their kids: namely, that marriage is between a man and a woman, that biological sex reflects divine creation that sex and gender are inseparable and it doesn’t change.

TRIMBLE: This right of raising your children … is dear to the heart of those of us who are Christians. But it was the Muslim community that first raised the alarm on this.

ROUGH: David Trimble is an attorney and the president of the Religious Freedom Institute in Washington.

His organization’s been involved in this case from its early days.

TRIMBLE: Before there was ever a legal case, we were on the ground working with parents.

In addition to the Muslim parents, many other parents wanted to protect their kids from classroom instruction using the books. At first, the school board said okay, you can opt-out. But with so many parents making the request, it did an about-face.

TRIMBLE: Students were required and not given, parents were not given the option of opting their children out of exposure to these materials. And the school made the claim these books aren’t really about sex education, they’re introducing real facets of life and culture.

The school board said the books were intended to teach respect and civility.

TRIMBLE: Those are certainly social behaviors we want to teach our children, but it doesn't have to be within the fabric of progressive ideology and sex related ideology.There's different ways to teach toleration and kindness and things of that nature. And I think it's disingenuous to say that there was not an ulterior aim by the school board to advance a progressive agenda.

EICHER: Over 1,000 parents signed a petition asking the school to restore the opt-outs. But the school dug in. The Muslim parents sued, and Catholic and Ukrainian Orthodox parents joined with them.

What they sought was a preliminary injunction.

HASSON: An injunction is where people come to the court and they, and basically, you say, make them stop.

Mary Hasson is a lawyer with the Ethics and Public Policy Center.

HASSON: Make them stop forcing our kids to be instructed in this material. And usually in a question of a preliminary injunction, the court is supposed to look and weigh certain things. It's supposed to ask, what's the likelihood that they're going to succeed?

In other words, the court has to ask: Are the parents likely to prevail in their argument that the school policy burdens their right to freely exercise their religion? The court thought they would.

HASSON: In the majority opinion, Justice Alito said the First Amendment protects religious freedom. And it's hard to imagine an expression of religious freedom that's greater than a parent's commitment to raise their children in their own religion. … So the state needs to respect that.

ROUGH: The court also weighed another significant aspect.

HASSON: Is the person who's seeking the injunction, in this case, the parents, are they going to suffer irreparable harm if they don't get it?

For this, the court relied heavily on a case from 1972: Wisconsin versus Yoder. Back then, the court said a law requiring school attendance until age 16 violated the religious beliefs of Amish parents. It said a high school environment would expose their kids to pressures, influences, and attitudes hostile to Amish beliefs. The court applied similar principles here.

HASSON: One of the things that Justice Alito kind of honed in on is that when you look at these books, it has normative purpose. It’s designed to help kids think a certain way, and that happens to be in direct conflict with their religious beliefs. When the state is promoting and instructing kids using materials and the discussion guides, et cetera, that are designed to shape the child's beliefs and values, and at the same time to minimize, reject, or tell them that the beliefs that they're learning at home are wrong—

EICHER: The damage that does rises to a level the law calls “irreparable harm.”

Here’s Justice Alito at oral argument talking about the message in the book Uncle Bobby’s Wedding, in which the uncle marries a man.

ALITO: The book has a clear message, and a lot of people think it's a good message, and maybe it is a good message, but it's a message that a lot of people who hold on to traditional religious beliefs don't agree with. I don't think anybody can read that and say, well, this is just telling children that there are occasions when men marry other men. Uncle Bobby gets married to his boyfriend, Jamie, and everybody's happy…

But the school board argued the storybooks didn’t force kids to change beliefs. They simply exposed them to different beliefs. Justice Sotomayor made that point in her dissent. And also at oral argument.

SOTOMAYOR: I’m looking at the books. I’ve looked through all of them. They have two men … where they’re getting married. Is looking at the pictures, is there any affidavit from any parent, that merely looking at people getting married, holding hands, none of them are even kissing in any of these books, the most they’re doing is holding hands, that mere exposure to that is coercion?

ROUGH: But in his opinion, Justice Alito pointed out that younger kids are impressionable. They don’t tend to question authority figures, like teachers, who take up specific viewpoints.

HASSON: It's like the court finally recognized what a burden that is when your kids are in a classroom with a teacher they love, who's teaching them something deliberately that is intended, not just accidentally, but intended to undermine their beliefs because the school district has taken the viewpoint that these things are right, good, and should be celebrated.

Unlike high schoolers, elementary kids haven’t yet learned how to challenge widespread approval of certain beliefs.

EICHER: The court didn’t buy the school board’s argument that parents could put their kids in private school. Or homeschool.

Here’s what the Court did conclude: That subjecting kids to lessons that go against parents’ religious beliefs does burden their First Amendment rights. But that’s not the end of the analysis. The burden might be constitutional if it can survive strict scrutiny. It’s not easy, but not impossible, either: The school will have to show the no opt-out policy advances a compelling interest that was narrowly tailored to achieve that interest.

Alito and the majority didn’t think so. And by 6-to-3, the court granted the preliminary injunction.

ROUGH: Justice Sotomayor’s dissent raised the point that opt outs don’t work well in practice.

HASSON: One of the concerns of the dissent was, it's unworkable. So this is going have a chilling effect. In other words—

Instead of allowing opt-outs…

HASSON: They’re going to pull these books.

The opt-outs apply to the books in question and “similar books.”

Mark Eckstein … the dad with kids in the schools … says the school has already adopted a new curriculum.

ECKSTEIN: We don’t use those books anymore. … They’re not banned, but they’re not used in the curriculum. We have a brand new curriculum. It’s different types of inclusion, it’s not these polarizing books. There’s a section on Sally Ride, who’s an LGBTQ American...

So what happens next? Unless the school district settles, the case will go back down to a lower court for trial, to determine whether the preliminary injunction should become permanent.

But for this case, the writing is on the wall. Here’s David Trimble again:

TRIMBLE: It really reinforces … you know, parental rights and religious freedom, their right to raise their children within their own faith tradition, teaching them their fundamental traditional values, is protected by the Constitution.

He adds this:

TRIMBLE: Look, if one group loses religious freedom, it affects us all. And religious freedom is something that is a precious and inalienable right granted to us by God. And we want to protect it for every person. It's rooted in our human dignity and that's for all of us.

And that’s today’s Legal Docket. More tomorrow.

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