Justices appear to favor Montgomery County parents opposed to LGBTQ-themed books

Supreme Court justices appeared to side Tuesday with Montgomery County parents who say the county’s refusal to let them opt their children out of classes with LGBTQ-themed books violates their right to raise their children according to their faith.

The case, Mahmoud v. Taylor, stemmed from a 2023 lawsuit filed by a group of Muslim, Jewish and Christian parents after the school board introduced books for classes as early as pre-kindergarten that had stories featuring transgender or same-sex characters.

When the books were introduced in the 2022-23 school year, the school system let parents who objected to the books opt their children out of classes that used the books, as they can opt children out of health education classes they find offensive. But the board reversed itself in March 2023, saying students could not get out of the language arts classes using the books, which the schools called part of an inclusive curriculum that also helps teach civility and respect.

But to the parents in the case, it’s a religious issue, and “Parents, not school boards, should have the final say on such religious matters,” said Eric S. Baxter, the attorney representing the parents.

The question before the court was whether “public schools burden parents’ religious exercise by compelling elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without the opportunity to opt out?”

Two lower courts have said it does not, ruling that books are not a religious burden because they do not compel students to change their beliefs. But in 2.5 hours of arguments Tuesday, the conservative majority appeared to question that, and to side with parents’ call for an opt-out.

“The plaintiffs here are not asking the school to change its curriculum,” said Justice Samuel A. Alito Jr. “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?”

School board attorney Alan E. Schoenfeld said it could create dozens of students not being in classes, while teachers and staff would need to create additional instruction for those students and accommodate them in other places within the school.

“I think it is infeasible,” Schoenfeld said.

Justice Brett M. Kavanaugh said he was “a bit mystified, as a lifelong resident of the county, how it came to this.” He asked Schoenfeld how Montgomery County, a “beacon of that religious liberty” in a state founded on religious liberty and tolerance, had reached a point of “not respecting religious liberty, given that history.”

“I just want to give you a chance to respond to how you situate that in Maryland and Montgomery County’s history,” Kavanaugh said.

Schoenfeld said the county’s 160,000-student public school system is the most religiously diverse in the country, and the school board has a difficult job “balancing the interests of a diverse community.”

“Montgomery County did its best under these circumstances, given their curricular goals,” he said. “That seems to me a fundamentally different question, and it’s an important one, but it is a fundamentally different question about whether there’s a constitutional right to opt your child out of curriculum that you deem religiously offensive.”

Meanwhile, the liberal justices questioned whether the mere presence of the books is coercive, and where the court should draw the line if it tries to create a rule on when parents can opt their children out of a class.

Justice Sonya Sotomayor highlighted one of the books, “Uncle Bobby’s Wedding,” about a girl worried that she will lose time with her uncle once he gets married, until his boyfriend befriends her. Sotomayor said no one in that book or any others “are even kissing.”

“The most they’re doing is holding hands. That mere exposure to that is coercion?” Sotomayor asked Baxter.

“Our parents would object to that,” Baxter replied.

Justice Kentaji Brown Jackson grilled Baxter and Sarah M. Harris, principal deputy solicitor general representing the Trump administration, noting that parents are not compelled to send their children to public school. If they object to LGBTQ-themed materials, she said, they can homeschool their children or send them to a private school.

“Most parents don’t have that option,” Baxter said. “They have two working parents. They can’t afford to send [their children] to private school.”

“I guess I’m worried about … a world in which there is an option to send your kid somewhere else, it seems to me that these parents would be dictating what this school does,” Jackson said.

LGBTQ+ liberation vs. indoctrination

The case has national implications on the tension between religious freedoms and schools’ attempt to present an inclusive curriculum.

As oral arguments went on inside the courthouse, advocates on both sides of the case held rallies outside the courthouse. The two sides kept mostly to themselves, but on the few occasions they engaged, the debate was largely civil.

On the left side of the court plaza was a sea of rainbows and pride flags, as several dozen advocates played pop hits, sang, danced, and performed spoken word poetry in support of curriculum that includes LGBTQ+ people and issues.

Lee Blinder, executive director of Trans Maryland and co-chair for the Coalition for Inclusive Schools & Communities, said that “young people do not deserve the message that they and their families are not a full and complete part of this society.”

“One cannot opt out of our existence because we are your loved ones. We are your teachers, your janitorial staff, your fellow students, the families of your fellow students. We are an inalienable part of the fabric of this society,” Blinder said.

Del. Gabriel Acevero (D-Montgomery), a member of the Legislative LGBTQ+ Caucus, stressed the importance of inclusive curriculum in schools.

“We’re here to say that we are not just going to honor our history – we are going to make sure that every single generation is aware and taught about, and our contribution is incorporated into every school instruction,” he said. “We know this country has denied the rights and dignity of a number of people, and we refuse to stand by as it erases, not just the contributions of queer folks, but it chooses to erase us as a people altogether.”

On the right side of the courthouse plaza, a few dozen supporters of parental opt-outs in education stood and sat in the shade listening in to the oral arguments being played on speakers.

Billy Moges, director of a coalition of parents called Kids First, said that it is “our constitutional right to parent and for our kids to believe in what they believe in.”

When arguments concluded shortly after 12:30 p.m., Baxter felt confident that the Supreme Court was more sympathetic to the plaintiff’s side.

“The court recognized that the books themselves were problematic,” he said to reporters. “Add on to that instruction from teachers – that these books were intended to encourage kids to explore different identities, to ignite their curiosity, to teach them that they can be a boy or a girl or both or neither.

“Parents aren’t asking to stop educating their children about the world around them,” Baxter said. “What they’re asking is to stop having them be indoctrinated on things that violate their religious beliefs.”

– Reporter Danielle J. Brown contributed to this story.