Another Expected Win for Religious Conservatives in Mahmoud v. Taylor

 So far, every time the Supreme Court has considered a challenge where conservative religious rights and LGBTQ rights were at odds, it has favored conservative religion. That is likely to be the case again in Mahmoud  v. Taylor, whose oral arguments were held Tuesday morning. In Mahmoud, parents argued that it violates their religious liberty if their children in public school read books with LGBTQ characters.

The trouble started when the Montgomery County Public Schools in Maryland added LGBTQ-inclusive books to its English curriculum. The alphabet primer Pride Puppy, for example, follows a little puppy who gets lost in a Pride Parade. In Uncle Bobby’s Wedding, a child attends her much-loved uncle’s same-sex wedding. Instead of losing an uncle, she gains another one!

Although the district originally allowed parents to pull their children when these books were read, it changed its mind on the grounds that the option proved too onerous and led to too much absenteeism. It also did not want to stigmatize members of the LGBTQ community. Several parents sued. Among their arguments, and the one before the Supreme Court, was that they have a free exercise right to notice and to opt their children out of books in the curriculum that do not align with their faith. More specifically, they claim it violates their religious exercise for their children to be exposed to views antithetical to their religious beliefs, and therefore they are entitled to be exempt from that exposure via the notice and opt out.

Currently, there is no precedent that directly supports a religious right of parents to selectively remove their children from curriculum requirements if they object to the lesson on religious grounds. The Supreme Court has held that parents could choose to send their children to a private religious school rather than the public school, but it has not granted them the constitutional right to choose public school and then insist their child participate in only those parts of the public school education that match their religious views. Although the counsel cited Wisconsin v. Yoder (1972), Yoder is about whether Amish children had to attend public school until age sixteen rather than receive vocational instruction in their own community, not whether Amish children must satisfy the curriculum requirements if they stayed in public school.

One major question in the case was whether exposure to Pride Puppy, Uncle Bobby’s Wedding, and the other children’s books substantially burdened the parents’ religious exercise. Generally, religious exemptions to laws are only granted if the law imposes a significant burden on the ability to fulfill religious obligations. Sensibly, the lower courts held that it does not violate anyone’s religion to know that LGBTQ people exist, or that all people do not condemn same-sex marriage. Indeed, the Fourth Circuit held that “Simply hearing about other views does not necessarily exert pressure to believe or act differently than one's religious faith requires.”

But even this exposure was too much for the parents and probably at least five Justices. To inform their children about the existence of gay couples or transgender people without accompanying condemnation violates their religious rights.  Just to be clear about what the parents’ claim is: it burdens their religious exercise—substantially burdens it—to teach their children that there are gay and transgender people in the world and that we should be inclusive and treat them with respect.

This is an extraordinary claim about substantial religious burden. (That's apart from the fact that one might have expected that lessons on coexisting with all kinds of people would be part of any public school education whose goal is to prepare its students for citizenship in the United States.) It illustrates just how broad and diluted the legal concept of substantial burden has become. Early claims involved the government preventing someone’s fulfillment of a central religious tenet or a sacrament (such as resting on the Sabbath). The Roberts Court then expanded it to include the state forcing someone to endorse or facilitate someone else’s sinful conduct (such as by requiring objectors to bake a wedding cake or design wedding invitations for same-sex couples). Now, apparently, it stretches to just learning that people of the same sex sometimes marry and some people do not mind.

If that were not problematic enough (and it is highly problematic), counsel for the parents never articulated a clear limiting principle for the right to hear about and opt out of potentially offensive lessons. Is it limited to instruction to young children? Is it limited to books about LGBTQ people? What if a parent’s religion opposes interfaith couples, or interracial couples, or women working outside of the home? Are their children excused from books that touch on these topics? What if parents do not want their teenagers to learn evolution, which clashes with their literal interpretation of the Bible? Do they skip  the evolution unit in biology? What if parents object on religious grounds, as counsel agreed some would, to a teacher using the appropriate pronouns for a transgender classmate? Is this new right even limited to schools? What if parents object to bus ads announcing that the town clerk will happily perform same-sex marriages?

There are several other doctrinal questions (including whether it is even necessary to make a separate showing of substantial religious burden if the law is not neutral and generally applicable). But they are ultimately besides the point. If conservative Christians are among those seeking an accommodation at the expense of the LGBTQ community, everyone knows which way the Roberts Court will rule.

--Caroline Mala Corbin