Supreme Court appears inclined to rule for parents seeking opt-outs for LGBTQ-themed instruction

The Supreme Court appeared inclined Tuesday to side with a group of parents objecting to their school district including books with LGBTQ themes in its elementary school curriculum.

Across more than two hours of arguments, a majority of the justices sympathized with the Montgomery County, Md., parents’ claims that the lack of an opt-out option substantially burdens their First Amendment rights to freely exercise their religion.

“What is the big deal about allowing them to opt out of this?” conservative Justice Samuel Alito asked.

Montgomery County, which serves more than 160,000 students in the Maryland suburbs of the nation’s capital and is one of the country’s most diverse school districts, began introducing LGBTQ-inclusive books in its elementary school language arts curriculum at the start of the 2022-23 school year.

The books include titles like “Born Ready: The True Story of a Boy Named Penelope,” which is centered on the author’s transgender son, and “Love, Violet,” which tells the story of two young girls in a same-sex romance.

“The book has a clear message,” Alito said of one of the books, indicating he had read several of the titles.

“And a lot of people think it is a good message. And maybe it is a good message, but it is a message that a lot of people who hold on to traditional religious beliefs don’t agree with,” he added.

Initially, the school board allowed parents to opt out their children, but the county rescinded the option beginning the following school year.

Justice Brett Kavanaugh repeatedly questioned why the school district was refusing the option and walked through Montgomery County’s history of being a “beacon” of religious liberty.

“I guess I am a bit mystified, as a lifelong resident of the county, how it came to this,” Kavanaugh said.

As the county removed the opt-out option, an organization and three sets of Muslim, Roman Catholic and Ukrainian Orthodox parents sued, represented by the Becket Fund for Religious Liberty, which regularly brings religion cases before the high court.

“The First Amendment demands more,” Eric Baxter, senior counsel at Becket, told the justices of the county’s policy.

The parents argue the county’s decision violates the Supreme Court’s holding in a 1972 case, Wisconsin v. Yoder, in which it ruled Wisconsin couldn’t require Amish children to attend public school beyond the eighth grade, because parents have the constitutional right to guide the religious future and education of their children.

But lower courts declined to put the county’s policy on hold as the case proceeded, saying the plaintiffs didn’t show their religious exercise was substantially burdened. The parents appealed to the Supreme Court after a divided panel on the 4th U.S. Circuit Court of Appeals rejected their bid.

Though a majority of the court’s conservatives seemed ready to rule with the parents, the justices explored several different legal avenues for how to get there.

Justices Neil Gorsuch and Amy Coney Barrett, two of President Trump’s appointees to the court, repeatedly questioned if they should consider whether the county’s policy demonstrates hostility against certain practices that amounts to religious discrimination.

Meanwhile, the court’s three liberal justices raised concerns about where to draw the line, peppering hypotheticals about a gay teacher who has a photo of their same-sex spouse on their desk or a teacher who calls a transgender student by their preferred pronouns.

“It’ll be like opt-outs for everyone,” Justice Elena Kagan said.

Outside the courthouse, dozens of protesters gathered at side-by-side competing rallies.

The group supporting the county read some of the books used by the school district, carrying signs with messages such as “Our Love is Louder.” The competing group included demonstrators who held signs displaying slogans like “Let Kids be Kids” and “Let Parents Parent.”

The case is the first of two this session in which the justices will delve into religion and schools. Next week, the Supreme Court will hear arguments on the bid in Oklahoma to create the nation’s first religious public charter school.