Supreme Court allows religious parents to opt-out of LGBTQ curriculum

The Supreme Court has held that the Free Exercise Clause of the First Amendment requires public school districts to allow parents to withdraw their children from classes that assign books that showcase LGBTQ themes. 

The case is Mahmoud v. Taylor, issued on June 27. The parents in this case live in Montgomery County, Maryland, where the school district introduced LGBTQ+ texts into the public school curriculum, approved for students from kindergarten to fifth grade. The religious parents wanted their kids to opt-out of this curriculum, but the school district declined. Hence, this lawsuit.

Writing for the six-Justice majority, Justice Alito opens with a discussion of several prior Supreme Court cases, including West Virginia v. Barnett (1943), where the Court said the Free Exercise Clause bars schools from coercing children to recite the pledge of allegiance. That case was brought by Jehovah's Witnesses. Since Barnette is not quite this case, in that it involves coerced speech, Alito turns to Wisconsin v. Yoder, a Supreme Court ruling from 1972, where the Court held that the Free Exercise Clause required public schools to exempt Amish children from their high school education entirely on the basis that compulsory high school education posed "a very real threat of undermining" the religious beliefs and practices that the parents wished to instill in their children.The substantial burden that Wisconsin's compulsory education law posed to the parents' religious rights led the Court to allow them to remove their kids from high school on religious grounds.

On the basis of Yoder, the Court says that the LGBTQ+ books carry "a very real threat of undermining the religious beliefs that the parents wish to instill in their children. Like the compulsory high school education considered in Yoder, these books impose upon children a set of values and beliefs that are 'hostile' to their parents' religious beliefs. And the books 'pressure to conform' to their specific viewpoints." Elsewhere, Alito writes that "the storybooks unmistakably convey a particular view point about same-sex marriage and gender," substantially interfering with the parents' right to instill certain religious values in their children.

Three Justices dissent: Sotomayor, Jackson and Kagan. All three were appointed by Democratic presidents. The six-justice majority are Republicans. This pattern is now commonplace at the Supreme Court. Sotomayor starts out by stating the majority has seriously misread Yoder because the Court ruled as it did in that case because compulsory high school education would not simply undermine the parents' religious values but would entirely foreclose Amish religious practice "by taking children away from their community at a time when they must acquire . . . the specific skills needed to perform the adult role of an Amish farmer or housewife," requiring the parents to "abandon" their faith. This would "result in the destruction of the Old Order Amish church community as it existed in the United States" as "compelled attendance effectively barred integration of the Amish child into the Amish religious community."

As Sotomayor sees it, the books in this case would never have the substantial adverse effects that compulsory high school education would have on the Amish religion. That would distinguish this case from Yoder. Sotomayor reviews the content of these childrens' books (and reprints some of them in her opinion) and finds nothing coercive about them, only that they would expose children to the LGBTQ+ world no differently than schoolhouse lessons about other cultures in the United States. Moreover, she worries, "given the multiplicity of religious beliefs in this country, innumerable themes may be contrary to the religious principles that parents wish to instill in their children." The majority's holding, Sotomayor writes, would give any number of religious groups the open to opt-out of public school curricula and wreak havoc on public education.

What we see in this case are two very different visions of what the Free Exercise Clause requires under the First Amendment. We also see to very different ways to interpret a 53-year-old Supreme Court ruling. All the justices who resolved Yoder are no longer with us, and several have been replaced several times over. This is an excerpt from the Yoder ruling:

As the record shows, compulsory school attendance to age 16 for Amish children carries with it a very real threat of undermining the Amish community and religious practice as they exist today; they must either abandon belief and be assimilated into society at large or be forced to migrate to some other and more tolerant region. 

In sum, the unchallenged testimony of acknowledged experts in education and religious history, almost 300 years of consistent practice, and strong evidence of a sustained faith pervading and regulating respondents' entire mode of life support the claim that enforcement of the State's requirement of compulsory formal education after the eighth grade would gravely endanger, if not destroy, the free exercise of respondents' religious beliefs.

You can see how unusual the Yoder case was: the parents asserted that sending their kids to high school would seriously damage their religion. Yoder is sufficiently unusual that, to my knowledge, no cases with facts like this have arisen in the Supreme Court ever since. But Yoder is still good law; it has never been overturned. The disparate interpretations of Yoder had by the current Supreme Court demonstrate how old precedents never die and can be reinterpreted over time.