During oral arguments Tuesday in the case of Mahmoud v. Taylor, Justice Samuel Alito asked about the ages of Maryland elementary school students taught from LGBTQ books in their class.
“These books were approved for pre-K, which in Montgomery County could start as early as three if they are going to turn four that fall,” answered Eric Baxter, the attorney for a group of Maryland parents suing the Montgomery County public school system. He noted it goes up to the sixth grade.
Alito clarified, “So you’re talking about children in ages 5 to 11 or 4 to 11.”
Here are four takeaways from today’s arguments. A decision is expected by the end of June.
1. Coercion or Mere Exposure?
Age aside, the oral arguments before the Supreme Court centered on whether the books were mere exposure or coercion violating the religious beliefs of parents.
Later during the argument Chief Justice John Roberts pressed Alan Schoenfeld, attorney for Montgomery County Public Schools.
“You said that nothing in the policy requires students to affirm what is being taught or what is being presented in the books. Is that a realistic concept when you are talking about a 5-year-old?” Roberts asked. “Do you want to say, ‘You don’t have to follow the teacher’s instructions? You don’t have to agree with the teacher’?”
Schoenfeld framed this as similar to a 1943 Supreme Court precedent on the Pledge of Allegiance in the case of Barnette v. West Virginia State Board of Education.
“I would point the court to Barnette. The kids were young. They were 8 and 10, and the court made a distinction between being required to pledge allegiance and affirm a belief in a graven image and merely being required to remain passive during the pledge ceremony, and being instructed on what the pledge was, what the flag was and what it meant,” Schoenfeld said.
Justice Neil Gorsuch followed, noting that teacher guidance says that if a student says a boy can’t be a girl, a teacher should respond that such a comment is “hurtful,” and you shouldn’t use negative words to talk about someone’s identity.
“Is that exposure or is that something else for a 3-, 5-year-old?” Gorsuch asked.
Schoenfeld replied, “These were recommended potential answers for questions that students might pose.”
Gorsuch followed, “Let’s say a teacher does as instructed and uses that. Is that exposure or is it coercion?”
Schoenfeld replied, “It is exposure to particular ideas in teaching students to be civil in the classroom.”
2. Pull Your Child From Public School, If You Don’t Like It
During the arguments, Justice Ketanji Brown Jackson suggested to Baxter, the lawyer for the parents, that it’s not coercion because children can attend private schools or be homeschooled.
“Assuming there is no opt-out in this environment, are students being coerced into being in that school at all?” Brown asked.
“We could have set up a constitutional framework in which all students are required to attend public school. They have to go to public school,” Jackson continued. “In that situation, you would have a pretty strong argument that it burdens a parent’s religious exercise if a public school teaches a student something that contradicts a parent’s religious beliefs. … I’m struggling to see how it burdens a parent’s religious exercise if the school teaches something the parent disagrees with. You have a choice. You can put them in another situation. You can homeschool them. How is that a burden on the parent?”
Baxter replied: “In the world we live in, most parents don’t have that option. We have two working parents. That’s the reality for our parents.”
Jackson countered, “In so many other constitutional doctrines, we don’t focus on whether people can afford to protect their rights.”
3. Are the Books Just There or Are Kids Being Taught Out of the Books?
Justice Clarence Thomas asked, “Are the books just there and no more or are they actually being taught out of the books?”
Baxter affirmed the books were required to be taught since being introduced in August 2022, and said the board of education suggested the books be used five times before the end of the school year.
“One of the schools, the Sherwood school in June for Pride Month, said that they were going to read one book each day to celebrate Pride Month,” Baxter said. “That was the entire point of withdrawing the opt-outs and removing even notifying parents who were not allowed to know, it was so that every student would be taught from the inclusivity textbooks.”
Plaintiffs were suing on religious grounds, including Catholic, Muslim, and Ukrainian Orthodox. Plaintiffs say they were initially offered the chance to opt out, but the school district reversed the offer. The school district has said it tried to accommodate, but the parent requests became unworkable.
The plaintiffs referred to the 1972 precedent of Wisconsin v. Yoder, where the high court held Amish families couldn’t be forced to send children to school after the eighth grade. Parents say they are asking for a far more narrow First Amendment accommodation. However, the Montgomery County school district contends this would mean no limit for accommodations.
4. Debating ‘Uncle Bobby’s Wedding’
Both Alito and Justice Sonia Sotomayor referred to one of the books, “Uncle Bobby’s Wedding,” about a same-sex wedding.
Sotomayor asked, “So, what you’re saying is that the exposure of children to the fact that two people are getting married is coercion, that two people of the same sex is coercion?”
Baxter clarified, “Our clients have not raised that objection.”
Baxter stressed that the high court’s ruling in 2015 in Obergefell v. Hodges that legalized same-sex marriage, that “parents would be able to teach what this court called decent and honorable beliefs that same-sex marriage is immoral, according to their beliefs.”
“It’s a far stretch from that for schools to compel students to attend,” he said.
Alito argued that the book “Uncle Bobby’s Wedding” didn’t present a factual case to leave it up to the students.
“The book has a clear message. And a lot of people think it’s a good message, and maybe it is a good message. But it’s a message that a lot of people who hold onto traditional religious beliefs don’t agree with,” Alito said. “I don’t think anyone can read that and think, well, this is just telling children that there are occasions when men marry other men. … Everyone accepts this except for little Chloe who has reservations about this. And her mother corrects her. It has a clear moral message.”
Sotomayor later objected that she interpreted the book differently to mean that the little girl was worried her uncle would spend more time with his husband than her.
