SCOTUS Poised To Back Parental Opt-Out For LGBT Content

A majority of Supreme Court justices on Tuesday appeared to be in favor of backing parents’ rights to opt their children out of explicit LGBT content in schools during oral arguments in a Maryland religious liberty case.

The case, Mahmoud v. Taylor, revolved around Muslim, Christian, and Jewish parents from Montgomery County, Maryland. The county school board would not allow these parents to remove their elementary school children from portions of class actively advocating for things like gay marriage, trans-identifying children, pride parades, and the idea that a child can change his “gender identity” at any given moment.

Attorneys for the county board are claiming the purpose of the instruction was to simply engender “inclusivity,” and that the children who were being exposed to the material, ranging from pre-kindergarten to sixth grade, were only being shown that gay “marriages” exist. But that narrative was swiftly cut down by questioning from Justice Samuel Alito to parents’ attorney Eric Baxter, senior counsel at the Becket Fund for Religious Liberty.

“It has a clear moral message,” Alito said of Uncle Bobby’s Wedding, one of the books in question, which the justice said he has read. “And it may be a good message. It’s just a message that a lot of religious people disagree 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.’”

Alito pointed out that while every character in the book was excited and supporting the gay wedding, the only character “who has reservations about it,” a little girl named Chloe, was quickly corrected for her wrong thought and told she should have zero reservations at all.

Questioning the county’s evolving claim that the forced exposure to different sexual proclivities among extremely young children was not actually advocacy, Alito asked Alan Schoenfeld (who argued on behalf of the Montgomery County School Board), “Why is the Montgomery County Board of Education in this argument running away from what they clearly want to say?”

“They have a view that they want to express on these subjects, and maybe it’s a very good view, but they have a definite view, and that’s the whole point of this curriculum; is it not?” Alito said.

The books and instruction materials themselves are incredibly controversial, particularly for the exclusively young and captive audience they are meant for in Montgomery County, and Justices Alito and Brett Kavanaugh were both perplexed as to how it became unfeasible for the schools to allow an opt-out choice for parents.

The county offers opt-outs for “virtually everything else under the sun,” said Principal Deputy Solicitor General Sarah Harris, who is representing the Trump administration on the side of the parents. But when it comes to force-feeding children gay and trans propaganda, the opt-out is “not administrable,” according to Schoenfeld.

“The plaintiffs here are not asking the school to change its curriculum,” Alito pointed out to Schoenfeld. “They’re just saying, ‘Look, we want out.’ Why isn’t that feasible? What is the big deal about allowing them to opt out of this?”

Schoenfeld never gave a clear answer in the multiple times he was asked. But he did let the cat out of the bag in other respects, telling the justices that the sheer number of opt-outs — both from religious points of view and from non-religious parents who believed the content was not age appropriate regardless — would have made it difficult for schools to find alternative accommodations.

Even Justice Elana Kagan noted that numerous non-religious parents “weren’t all that thrilled” with the content.

Montgomery County maintains that no one receiving the instruction is required to agree or “affirm” the concepts being taught, but rather just be exposed to them. But Chief Justice John Roberts questioned how that was even possible when dealing with extremely young children who are not going to have the cognitive capacity to reject concepts being taught by schools.

“Is that a realistic concept when you’re talking about a 5-year-old?” Roberts asked.

Justice Amy Coney Barrett took a different route, noting how Montgomery County’s policy is not one that simply exposes children to a concept, but rather relays a point of view as an unquestionable fact.

“It’s saying: ‘This is the right view of the world,’” Barrett said. “This is how we think about things. This is how you should think about things. This is like, 2+2 is 4.”

The school board also claims that there is no religious hostility in the requirement, but Justice Neil Gorsuch pointed to instances where board members said students were repeating their parents’ religious “dogma,” and expressing anger that the issue has some Muslim parents joining forces with others who they described as white supremacists and xenophobes.

Schoenfeld kept claiming that “history” was on the county’s side with regard to its authoritarianism on forcing the content in front of children, even going as far as to cite Donahoe v. Richards, an 1854 case where a Catholic student was expelled for not wanting “to be required to read the King James Bible.” He even admitted in oral argument that Donohoe “reeks of anti-Catholic bias.”

But Kavanaugh, who mentioned he is a lifelong resident of Montgomery County, brought up a broader historical context when talking to Schoenfeld, saying, “Maryland was founded on religious liberty and religious tolerance, a haven for Catholics escaping persecution from persecution in England going back to 1649.”

“Montgomery County has been a beacon of that religious liberty for all these years, with strong Catholic population, a substantial Jewish population, lots of different Protestant — you drive down any … Connecticut Avenue or Georgia Avenue, and you know, you see religious building after religious building. And I guess I’m surprised, given that this is, you know, the hill we’re going to die on in terms of not respecting religious liberty.”

Kavanaugh ended his questioning by telling Schoenfeld that it was a “tough case to argue” but thanked him for his effort.

Breccan F. Thies is a correspondent for The Federalist. He previously covered education and culture issues for the Washington Examiner and Breitbart News. He holds a degree from the University of Virginia and is a 2022 Claremont Institute Publius Fellow. You can follow him on X: @BreccanFThies.