Supreme Court leans toward parents in dispute over LGBTQ storybooks in school

(WASHINGTON) -- The Supreme Court’s conservative majority on Tuesday signaled that it is poised to establish a right of parents to opt-out their children from public school instruction that conflicts with sincerely held religious beliefs.

The case, brought by a group of Christian, Muslim and Jewish parents from Montgomery County, Maryland, specifically seeks a guaranteed exemption from the classroom reading of storybooks with LGBTQ themes, including same-sex marriage and exploration of gender identity.

The parents allege use of the books in elementary school curriculum -- without an opportunity to be excused -- amounts to government-led indoctrination about sensitive matters of sexuality. The school board insists the books merely expose kids to diverse viewpoints and ideas.

The justices engaged in spirited debate for more than 2 1/2 hours of oral arguments, wrestling with where to draw the line between exposure and coercion, which is forbidden under the First Amendment.

“Is merely being exposed to the reading of the book out loud coercion?” asked Justice Sonia Sotomayor of the parents’ attorney Eric Baxter. “Is looking two men getting married -- is that the religious objection?"

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

Several of the court’s conservative members suggested an opt-out for sensitive subjects should be common sense.

“I’m a bit mystified as a lifelong resident of the county how it came to this,” said Justice Brett Kavanaugh. "I'm surprised that this is the hill we're going to die on, in terms of not respecting religious liberty."

In 2022, after introducing several LGBTQ-themed books into the language arts curriculum, the school board allowed parents to opt-out if the content was deemed objectionable as a matter of faith. One year later, officials reversed course and said an opt-out program had become unwieldy and ran counter to values of inclusion.

“I’m not understanding why it’s not feasible,” Kavanaugh said later. “The whole goal of some of our religious precedents is to look for the win/win.”

Justice Samuel Alito, who appeared most sympathetic to the parents, said he believes the five books in question -- out of more than 100 in the school curriculum -- “have a clear message” and that “a lot of people disagree with it.”

“What is the big deal about allowing them to opt out?” Alito asked Alan Schoenfeld, the county’s attorney. “Why is it not administrable? They are able to opt-out of the health class, right?”

Chief Justice John Roberts questioned whether elementary school students could realistically be assumed to understand that a presentation of the books was different than a teacher’s endorsement of them.

“I understand the idea when you're talking about a sophomore, a junior, whatever, in high school," Roberts said, "but I'm not sure that same qualifying factor applies when you're talking about five-year-olds."

Justice Neil Gorsuch suggested the board may have exhibited discriminatory “hostility” toward religion in reversing course on the opt-outs, while Justice Amy Coney Barrett appeared inclined to believe the board’s distinct purpose was to coerce children into accepting beliefs about sexuality.

“It was part of the curriculum to teach them that boys can be girls or boys can -- or that your pronouns can change depending on how you feel one day to the next?” Barrett asked skeptically.

“Federal courts are not meant to sit as school boards in deciding these curriculum disputes,” Schoenfeld said later, noting that the Montgomery County board was democratically elected by local residents.

The court’s three liberal justices all vigorously challenged the parents’ request in the case, seeing opt-out rights as a slippery slope.

Sotomayor said the list of potential religiously offensive content is limitless, from depictions of women who work, to stories involving divorce, pictures of interfaith marriage, even teachings around evolution.

Justice Elena Kagan said the constitutional right parents are claiming is remarkably broad. “I’m searching for what in the legal arguments would allow us to draw lines in this area, and I’m not finding it,” Kagan said. “It’ll be like opt-outs for everyone.”

Justice Ketanji Brown Jackson worried aloud that a decision siding with the parents could have far-reaching implications beyond books.

She asked about a gay teacher with a photo of his wedding on a desk, or a student group putting “love is love” posters around the campus, or about exposure to a transgender student in the classroom, where a teacher refers to them by their preferred pronouns?

“Is it a burden for a religious student who is being taught at home and through their religion that gender is not a situation that can be changed ... to be in a public school classroom where the teacher is referring to another student by what this student believes is the wrong pronoun?” Jackson asked.

“That would, in fact, constitute a burden on religious exercise,” replied Baxter, implying such a student might have a case for an opt-out.

A decision in the case is expected by the end of June.

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