Supreme Court Asked to Support Parents Against Schools’ Gender Agenda

The Supreme Court heard arguments Tuesday on an important case involving the intersection of the rights to exercise religion and to direct the upbringing of children. The court’s decision, expected by the end of June, may advance or curtail an expanding recognition of the fundamental right to exercise religion. 

In October 2022, the Montgomery County, Maryland, Board of Education announced a policy requiring the use of LGBTQ-inclusive storybooks as part of the English Language Arts curriculum for elementary school students. One book, for example, depicts a family whose puppy gets lost at a LGBTQ-pride parade. Each page focuses on a letter of the alphabet, with pre-kindergarten children looking for words such as “[drag] queen,” “intersex,” and “underwear.” 

The school board also provided teachers with materials to foster discussion and answer questions about the storybooks’ content. These urge teachers to “disrupt” students’ traditional views about gender by saying, for example, that “people make a guess about our gender” when we are born and “sometimes they’re wrong. … Our body parts do not decide our gender. Our gender comes from our inside.”

In other words, the message of the books and the follow-through by teachers are intended to promote the school board’s view about sexuality and gender. 

This controversial policy quickly ignited a firestorm. Some complaints came from parents on religious grounds, but many were from teachers and administrators questioning the efficacy and age appropriateness of this scheme. Like most other school districts, Montgomery County allows parents to opt their children out of all sorts of instruction and activities to which they object. In fact, parents may opt their children out of instruction on this very subject as part of the health education curriculum.  

In addition, the school board’s “Guidelines for Respecting Religious Diversity” state that schools should accommodate requests that students “be excused from specific classroom discussion or activities that [students or parents] believe would impose a substantial burden on their religious beliefs.” To that end, during the 2022-23 school years, parents were given notice and the opportunity to opt their children out when these storybooks would be used.  

School board reverses course, tells parents they can’t opt out, so they sued  

In March 2023, however, the school board abruptly, and without explanation, not only rescinded this notice-and-opt-out policy, but actually advised teachers not to inform families when these controversial materials would be used.  

A group of parents from various religious faiths filed suit. They did not challenge the use of the storybooks but only sought to reinstate what the school board previously provided: notice and an opportunity to opt their children out. These parents share the belief in their religious duty to guide the upbringing and moral development of their children in a manner consistent with their faith, including on matters of sexuality. This includes shielding younger children from discussion of such matters outside of the appropriate moral and religious context.  

They asked the district court for an injunction against forcing their children to participate in such instruction while litigation about the mandatory policy continued. The district court not only denied their request but said that the policy did not impose any “cognizable burden to the free exercise of their religion” at all. The U.S. Court of Appeal for the Fourth Circuit affirmed that decision. 

Arguing the difference between government coercion and exposure to ideas 

The issue of what constitutes a “burden” on religious exercise dominated the Supreme Court argument, with many questions trying to distinguish between government coercion and mere exposure to certain ideas.  

The Fourth Circuit applied the former narrow definition, limiting a burden on religious exercise to compelling parents or children to change their religious beliefs or conduct or somehow limiting what parents could teach their children at home. The liberal Supreme Court justices took a similar tack, with Justice Ketanji Brown Jackson suggesting that nothing that occurs in a public school can burden religious exercise because parents can homeschool their children or send them to private schools. Even the school board’s attorney insisted that was not their position. 

These justices tried to characterize the parents as saying that any sort of “exposure” to pictures or ideas to which they object would be a religious burden requiring an opt-out. The conservative justices focused instead on the facts of the case before them. Justice Samuel Alito, for example, read a passage from one of the books to show that it “has a clear moral message.” Justice Clarence Thomas observed that topics such as sexuality and gender are known to be controversial and that Montgomery County teachers are encouraged to “disrupt” the “binary” thinking students may have.  

After this litigation began, the school board tried to argue that it rescinded its notice-and-opt-out policy because it was not administratively feasible. The parents’ attorney, however, showed that other opt-outs involved significantly more students. Even if the evidence was otherwise, it would not have been an adequate basis for burdening the parents’ exercise of religion and, in any event, most requests to opt children out of this sexuality and gender instruction were not religious in nature.

A diverse religious and ideological alliance 

Groups as ideologically disparate as the Women’s Liberation Front and Parents Defending Education joined to support these parents. So did the Trump Administration, filing a brief in the case and sending Acting Solicitor General Sarah Harris to participate in the argument. The dozens of organizations, religious groups, members of Congress, and state legislatures filing amicus briefs on either side shows the high stakes of this case.  

In the last decade or so, the Supreme Court has issued numerous decisions in religious freedom cases, with some raising the same issue of what constitutes a burden on the exercise of religion. The court has leaned toward a wider view, and the decision in this case may contribute to this trend.  

Sadly, this case also exposes the growing intolerance, and even hostility, toward religion that pervades almost every sector of society. 

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