The US Supreme Court heard arguments on April 22 in the case of Mahmoud v. Taylor concerning whether Maryland parents’ constitutional rights were infringed when they were denied the ability to opt their children out of instruction about gay and transgender themes. The case centers on the religious liberties of Muslims and other faith traditions to be exempt from the indoctrination of children as young as three years of age concerning sensitive matters regarding human sexuality. The Court’s questions to the counsel may indicate how the case will be decided.
Supreme Court Hotspot
The controversy has pitted educators against parents, left against right, and secularists against those of religious belief. How much should schools teach children about moral values, and at what age? Is the dispute about exposure to a broad community of beliefs or about a secular government inculcating those beliefs in very young minds in contravention of devout faith? Given its strong history as a bastion for religious freedom, Maryland is an unexpected locale for this conflict to have percolated to the nation’s highest court.
Justice Samuel Alito focused on the impressionable age of the students and their ability to understand what they were being taught critically, asking the counsel:
“Would you agree that at a certain age, students are capable of understanding this point, which is probably not a point that can be understood by a four- or five-year-old, and that is, that my teacher, who is generally telling me that certain things are right, and certain things are wrong, isn’t necessarily going to be correct on everything. It is possible for one to disagree.”
Justice Amy Coney Barrett homed in on the legal burden that the petitioning parents were required to demonstrate to overrule the Fourth Circuit’s decision in favor of the schools:
“It seems to me that the questions that you are getting are about line drawing … and one place where some of that line drawing might happen is in the definition of burden. So I think the definition of burden is important, and really, that’s the main thing that’s before us. The question of whether you get an opt-out ... We don’t even have to decide that, right? We don’t have to decide whether you get the opt-out, we just have to decide whether the Fourth Circuit accurately defines what a burden is.”
Indoctrination or Education?
The implicit inquiry here was whether the parents had to show that schools were actively coercing their children in conflict with their religious faith or simply exposing them to books or ideas that conflicted with their faith. The parents’ counsel argued the schools were indoctrinating children in moral ideas, not merely using the controversial books to teach how to read, stating, “The Board said when you select these books we want you to select books that will disrupt cisnormativity, [and] disrupt heteronormativity.”
Justice Barrett focused on this distinction when challenging the legal counsel for the government and read the following excerpt from the teachers’ instructions:
“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 guessed wrong, and when cisgendered they guessed right.”
Justice Barrett then inquired of the government attorney whether such questions “seem to be more about influence, and shaping of ideas and less about communicating respect.” In this, she was implicitly joined by Justice Elena Kagan, who asked the petitioners’ counsel directly, “Are your clients objecting to exposure or to indoctrination?” She pressed the petitioners’ attorney to distinguish between reading from the books as part of teaching versus objecting to the books being accessible, concluding:
“OK, so it’s not about exposure, it’s not about books on the shelf, it’s not about books in the library, it’s about actually reading the books with the text that communicates the ideas that are contrary to your clients’ sincerely held religious beliefs.”
Jackson Hints at Her View
In a posture that may hint at her eventual ruling, Justice Ketanji Brown Jackson pressed the counsel about (1) whether there was sufficient evidence for the courts to rule, and (2) whether parents had any rights when they could simply withdraw their children from school. As to the sufficiency of evidence, she wondered "whether this case is really the right vehicle to evaluate any of these issues." She continued:
“How can we say that you meet any definition of the burdens … when we don’t even know how these books are actually being used in the classroom? I mean, this is what I understand the Fourth Circuit’s primary holding to be: that the record is threadbare, it contains no information about how any teacher or school employee has actually used any of the books or what any child has been taught … Why wouldn’t we wait until we have a record regarding those things before we make any legal pronouncement about what’s happening in this case?”
In an additional effort to kick the can on the case, Justice Jackson questioned whether the plaintiffs were burdened at all since public school is not compulsory:
“But if you have an option to do something else, I guess I’m just worried about suggesting that exposure to things you disagree with in a situation in which you have the option not to expose yourself to that because you can do something else, counts from the standpoint of substantial burden.”
This seems a weak reed upon which the Supreme Court would jettison parents’ rights. It assumes “exposure” as opposed to “indoctrination,” which Justice Sotomayor also deemed worthy of distinction – opting out of direct instruction versus the mere presence of books on shelves. Moreover, Justice Jackson ignored that poor citizens cannot afford to “have the option to do something else.” As Ashley McGuire wrote in the National Review on April 22: “[N]ot everyone can afford a five-figure opt-out – if there is even an alternative nearby. The result is a kind of socioeconomic religious discrimination: religious freedom for rich people.”
The Supreme Court appears to be leaning toward overturning the lower court decision in favor of the school board, and giving parents the relief they seek. Americans must await the full decision to find out.
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