Story time at the Supreme Court

A religiously diverse group of Montgomery County, Md., parents took their case against so-called “gender-affirming” books in public elementary classrooms to the Supreme Court Tuesday morning. The case will affect not only what is taught in public schools but also who has primary control over public education.

Parents contend that the county violated the First Amendment’s free exercise clause by removing a longstanding practice of providing parents notice and the choice to opt children out of materials that would substantially burden their religious beliefs. The parents objected to materials such as storybooks that celebrate gender transitioning, LGBT pride parades, and pronoun preferences for children as young as 3 and 4 years old. But school officials say the swelling number of opt-outs would be difficult to administer and would undercut an educational interest in ensuring an inclusive school environment.  

The three families—Muslim, Roman Catholic, and Ukrainian Orthodox—along with Kids First, an association formed to advocate for opt-outs, challenged the policy change in July 2023. Parents rallied after a March 2023 decision to move the books from the school’s family life resources to its language arts curriculum made a state opt-out law inapplicable.

A month later, a federal district court sided with the school district. Disappointed parents appealed to the Supreme Court last year after a 2-1 ruling by a federal appeals court backed the district court.

Eric Baxter, senior counsel for the Becket Fund for Religious Liberty, encouraged the court to require that schools treat religious opt-outs the same as opt-outs it already allows for a variety of other reasons, tracing arguments made in the parents’ opening brief. He went on to portray the county as an “outlier” compared to other school districts in the state and country.

Baxter later pointed back to the court’s ruling over 50 years ago, in Wisconsin v. Yoder, where it struck down a mandatory school attendance law after Amish parents challenged it. Justices in that case “recognized ‘beyond debate’ the First Amendment right of parents ‘to guide the religious future and education of their children,’” Baxter said.

On Tuesday, justices considered where to draw the line between mere exposure to objectionable material and coercion that amounts to substantial religious burden.

Justice Sonia Sotomayor hammered Baxter the hardest. “I’ve looked at all the books,” she said, referencing the materials the parents listed. “Is looking at two men getting married—is that the religious objection?” she asked. “The most they’re doing [in the storybook] is holding hands.”

But Justice Elena Kagan, another liberal, seemed to counter that argument. “These are young kids’ picture books, and on matters concerning sexuality, I suspect there are a lot of nonreligious parents who weren’t all that thrilled about this,” she said. “Add in religion, and that’s even more serious.”

In her remarks on behalf of the Trump administration, Principal Deputy Solicitor General Sarah Harris disputed the circuit court’s ruling that the school district did not burden the free exercise of religion because the children were not coerced to believe anything. “When the government forces people to choose between violating sincerely held religious beliefs or forgoing a public benefit, that burdens religious exercise,” Harris told the justices.

School district counsel Alan Schoenfeld repeated arguments that a majority of the lower court justices accepted. Parents lack an important element present in other cases favorable to parents, he told the justices—there is no evidence that the school coerced any child into changing their beliefs on sexuality and gender.

Conservative justices pushed back. Justice Brett Kavanaugh—who reminded the court that he lives in Montgomery County—pointed to Maryland’s founding as a haven for Roman Catholics facing persecution and the religious diversity of the county. He noted that surrounding school districts and others around the country liberally approve opt-outs for many reasons. “Is this really a hill you want to die on?” he asked Schoenfeld.

Justice Amy Coney Barrett told Schoenfeld that the case clearly concerns compulsion, not mere exposure to different ideas. “It’s saying: ‘This is the right view of the world. This is how we think about things. This is how you should think about things,’” she said.

A bevy of friend-of-the-court briefs lined up behind both parents and the school district. In their brief in support of the parents, Regent University School of Law professors Ernie Walton and Eric DeGroff attempted to pivot the court’s attention to parents’ 14th Amendment-derived right to control the education and upbringing of their children. Their brief places children’s education squarely in the hands of parents who only delegate limited authority to public schools.

“Courts have consistently recognized that forcing a child to use a curriculum that conflicts with the values a parent is teaching at home exceeds any authority a parent might willingly delegate,” they contend. They suggest that “the solution to balancing a shared curriculum with respect for religious and parental rights lies in recognizing reasonable opt-outs.”

The Manhattan Institute, a New York City-based conservative think tank, along with seven psychologists, took aim at the radical and damaging nature of gender ideology. Their brief argued that there is a “long tradition, both philosophical and scientific, that suggests that there are fundamental inherent differences between the sexes.” It also pointed to studies tending to show that the ideology has led to increased mental illness and depression among youth.

The American Civil Liberties Union, the National Education Association, and LGBTQ advocacy groups sided with the school district. The NEA objected to the idea that students’ “exposure to diverse ideas” is sufficient to raise constitutional concerns. “The long-standing rule is that the operational needs of schools are superior to a parent’s desire to direct the individual educational experience of a child within the school,” it said.

Walton told WORLD that while both sides argued the case on the basis of free exercise of religion and not parental rights, a victory would signal the court’s support for parental rights.

“Even if it’s a narrow ruling, it reminds school districts and lower courts that parents still have rights at public schools, that they have not lost their rights just because they choose to enroll [their children] in a public school,” said Walton. “So I think it’s the beginning of what will be a reassertion of what the original meaning of the Constitution should be—but one which courts have ignored for far too long.”

A ruling in the case is expected by late June or early July.