The Supreme Court Ponders a Landmark Religious Rights Case

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On April 22^nd the Supreme Court heard oral arguments in a constitutional rights case dealing with the free exercise of religious beliefs. Parents of several religious faiths with young children in Montgomery County Maryland public schools have challenged a rule that prohibits their children from opting out of class while books with LGBTQIA+ themes are being used.

The plaintiffs who are challenging the school board’s opt-out prohibition include Christian, Jewish, and Muslim parents. They are appealing the lower courts’ denial of a preliminary injunction they requested asking for the parents to receive advance notice and the right to have their children opt out of class for religious reasons during LBTQIA+ storybook times. The parents were not asking the Montgomery County public school system to change what was being taught in the classroom. They just did not want their children as young as four-or five-year old spoon-fed with values that are directly contrary to the religious beliefs the parents themselves want to instill in their children.

The Supreme Court has concluded in a line of cases stretching back a century that the “liberty” specially protected by the Due Process Clause of the Fourteenth Amendment includes “the liberty of parents and guardians to direct the upbringing and education of children under their control.”

In 1996, none other than the late liberal Justice Ruth Ginsburg wrote for the majority in a parental rights case: “Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as ‘of basic importance in our society,’ rights sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.” (Emphasis added)

Based on what various justices asked and said during the oral arguments, the Montgomery County parents should have a good chance of winning their case.

Montgomery County’s public-school board had previously allowed children whose parents objected to specific storybooks on religious grounds to opt-out during class time when such storybooks were being used as part of classroom instruction. But the school board decided to withdraw the opt-out option without providing any notice to the students’ parents. The excuse that the school board offered, after the fact, was that permitting these opt-outs was not administrable. Several justices were skeptical of what looked like a pretextual rationale.

For example, Justice Brett Kavanaugh said during the oral arguments that “I’m not understanding why it’s not feasible…The county has opt-outs for all sorts of things. The other Maryland counties have opt-outs for all sorts of things. And yet, for this one thing, they changed in mid –midyear and say no more opt-outs. I’m just not understanding feasibility.”

The Montgomery public school system is engaging in religious discrimination. It is allowing opt-outs in some cases but not in others. Counsel for the plaintiffs provided the justices with several examples. The school board, for instance, still allows opt-outs for students who object to storybooks that portray an image of the Prophet Muhammad but no longer allows opt-outs for storybooks focusing on gay weddings and transgenderism. “Exempting students for some religious reasons but not others cannot be squared with the First Amendment,” plaintiffs’ counsel said.

Moreover, Montgomery County public school students can opt out of class when family life and healthy sexuality are being taught. But parents are not permitted to have their little children opt out when stories about LGBTQIA+ families and gender identity are being read aloud in class. As Justice Kavanaugh pointed out, family life and healthy sexuality class is “the most similar substantively to what we have here, and there’s an opt-out allowed there.”

For her part, Justice Ketanji Brown Jackson supported the distinction drawn by the school board between the stated purposes of the two classroom courses of instruction. Referring to the LGBTQIA+ storybooks, she claimed that the board was “explicit that the books were to be used only to supplement the English language arts curriculum as reading instruction and not to teach about gender or sexuality.” However, this is a distinction without a difference.

Impressionable kids as young as four years old are compelled to remain in class while stories about LGBTQIA+ families and gender identity are being read aloud. But students are allowed to opt out of family life and healthy sexuality classes. This discriminatory treatment of religious parents who request opt-outs for their children during LGBTQIA+ storybook times raises serious First Amendment issues under the Free Exercise clause.

Counsel for the Montgomery Public Schools argued that the books at issue in this case are only “meant to foster mutual respect in a pluralistic school community.”  But the instructional materials that are provided to teachers to help them answer children’s questions regarding what is being read to them prove otherwise. The use of these storybooks in class tips the scale towards teaching the young children how they should judge same sex relationships and change of gender identity.

For example, the instructional material for teachers includes this passage: “When we’re born, people make a guess about our gender and label us boy or girl based on our body parts. Sometimes they’re right; sometimes they’re wrong. When someone’s transgender, they guess wrong. When someone’s cis gender, they guessed right.”

Justice Amy Coney Barrett used this example to point out that what this case involves is “less about communicating respect for those, you know, who are transgender, who are gay, and more about how to think about sexuality.”

One of the storybooks being used in the classroom, entitled “Born Ready: The True Story of a Boy Named Penelope,” was written by the LGBTQIA+ activist and author Jodie Patterson. Based on Ms. Patterson’s own child’s change of gender identity revelation, the book is about Penelope, a five-year-old biological girl who one day declared, “No, Mama, I don’t feel like a boy. I AM a boy.” Mom immediately affirmed her transgender son’s self-proclaimed new gender identity.

“We will make a plan to tell everyone we love what we know…. You are a boy,” the mother said proudly. Evidently, she did not think to consult with a professional counselor first even once to be sure her child was not just going through a phase or acting out to get attention.

During an interview, Ms. Patterson said that “I hope this book evokes a radical parenting movement.”

The religious parents who are being prohibited from opting their children out of class when Ms. Patterson’s book is being used in their children’s classroom are not interested in joining the LGBTQIA+ activist ‘s “radical parenting movement.” They are perfectly content with their traditional mode of parenting and want to maintain the ability to direct the religious upbringing of their children without interference from public school administrators and teachers.

Several justices inquired whether it matters that parents who have religious objections to what the public schools are teaching their children in class are free to choose to send their children to private school or to home-school them instead.

Justice Jackson seemed to think so. She emphasized that parents “have a choice. You don’t have to send your kid to that school. You can put them in another situation. You can home-school them. How is it a burden on the parent if they have the option to send their kid elsewhere?”

Justice Jackson conceded that, “as a matter of practicality,” some parents are not in an economic position to take advantage of these choices to avoid interference from the public schools with their First Amendment free exercise rights. But this very liberal justice downplayed the constitutional relevance of affordability. She said that “in so many other constitutional doctrines, we don’t focus on whether people actually can afford to protect their rights.”

With such an attitude, Justice Jackson has shown herself to be an elitist. She is also wrong as a matter of constitutional law in the context of this case.

As Justice Barrett noted, “you’re compelled to send your child to public school on pain of fine unless you take advantage of an exemption.” Moreover, parents are required to pay taxes to support public schools whether they decide to send their own children there or not. This means that parents who decide for religious reasons to pay for private school or to devote substantial resources to homeschooling their children must incur an extra price to exercise their free exercise and parental constitutional rights.

Justice Kavanaugh showed some frustration as the oral arguments were winding down. “I guess I am a bit mystified, as a lifelong resident of the county, how it came to this,” he said. “Maryland was founded on religious liberty and religious tolerance,” he observed, before adding that Montgomery County has been a “beacon” of “religious liberty” for years. Addressing the attorney arguing for the Montgomery public school system, Justice Kavanaugh expressed his surprise that “this is the hill we’re going to die on, in terms of not respecting religious liberty, given that history.”

The Supreme Court is expected to deliver its decision in late June or early July. Hopefully, the Court will protect the parents’ fundamental right to direct the religious upbringing of their children without encroachment by public school administrators and educators.