Conservative members of the U.S. Supreme Court seemed to favor an argument Tuesday that parents with religious objections should be allowed to opt out of lessons in Montgomery County public elementary schools that involve storybooks with LGBTQ+ characters, according to Tuesday’s oral arguments.
Much of the judges’ questioning on Tuesday centered around whether the lack of an opt-out option for parents violated their rights to free exercise of religion and the possible implications for their ruling. The questioning lasting more than two hours largely fell along the ideological lines of the judges.
The case before the court was brought by a group of parents who unsuccessfully sued Montgomery County Public Schools (MCPS) for not having a policy to notify families when LGBTQ+ storybooks are used in elementary school classrooms and not allowing families to opt out of those lessons.
The court said in January that it would hear the case, which The Washington Post first reported. The parents asked the Supreme Court to take on the case in September, after a U.S. Circuit Court of Appeals upheld a lower court’s denial of a preliminary injunction in May 2024. Following Tuesday’s arguments, the court is not likely to release a decision until the summer.
The group filed a federal lawsuit in May 2023, arguing against the county school board’s decision to incorporate LGBTQ+ inclusive storybooks into the English language arts curriculum in elementary schools and its policy to not allow parents to opt out their children from instruction. The policy was first articulated by the school board in March 2023 after the district added six LGBTQ+ inclusive books to its supplemental curriculum for pre-kindergarten through fifth grade. MCPS revised the opt-out policy at that time, which stated that teachers would not notify or send a letter home to families when inclusive books are read in the classroom.
Three MCPS families filed the lawsuit against the county school board and the MCPS superintendent, alleging that the no-opt-out policy violated their constitutional right to religious expression and Maryland law. The lawsuit also alleged the inclusive books promote “political ideologies about family life and human sexuality that are inconsistent with sound science, common sense, and the well-being of children.”
In August 2023, a federal judge denied a motion for an injunction that aimed to force MCPS to rescind its no-opt-out policy temporarily.
A U.S. Circuit Court of Appeals upheld the lower court’s decision to deny a request for a preliminary injunction in May. According to the ruling by the 4th Circuit Court of Appeals in Richmond, Virginia, the parents who filed the appeal of the lower court’s denial in the lawsuit against the school system did not provide enough evidence to support their request.
The parents “have not come forward with sufficient evidence of cognizable burden on their free-exercise rights,” the ruling said in part.
In court Tuesday, Eric Baxter, senior counsel for Becket Fund for Religious Liberty, the law firm representing the parents, said the storybooks and lack of an option to opt out amounted to indoctrination and infringed on parents’ rights to direct the religious upbringing of their children.
Alan Schoenfeld, the lawyer representing MCPS, argued that exposure to curriculum materials parents might find offensive didn’t infringe on the parents’ rights. Schoenfeld said the district tried to implement opt-outs, but found it wasn’t feasible.
According to briefs submitted to the court, schools faced hurdles in using the storybooks and honoring opt-out requests.
“The need to shuttle students in and out of the classroom would, moreover, disrupt those classrooms and undermine MCPS’s curricular goals by making it impossible to weave the storybooks seamlessly into [English Language Arts] lessons,” The MCPS brief said.
The point of the books, Schoenfeld said, was to foster respect for all students and their lifestyles.
Conservative members of the court, who currently hold a majority of seats, including justices Samuel Alito and Brett Kavanaugh, said they couldn’t see why it wasn’t feasible to allow opting out of the curriculum, especially if the district allows opting out of lessons in other subject areas, such as health education.
“I’m just not understanding why it’s not feasible,” Kavanaugh said, one of three justices who live in Montgomery County but did not enroll their children in MCPS.
Kavanaugh noted several times that the parents weren’t asking to change the district’s curriculum. Instead, they were requesting to opt out of instruction to which they objected.
Alito said one book used by MCPS, Uncle Bobby’s Wedding, which is a story about two men getting married, depicted more than just exposure to the idea of gay marriage, and implied that gay marriage was acceptable. Same-sex marriage has been legal nationwide since the Supreme Court’s landmark 2015 ruling. Alito dissented in that ruling.
“We could have a book club and have a debate about how Uncle Bobby’s marriage should be understood, but I think it clearly goes beyond [exposure to the idea],” Alito said.
Alito said MCPS has a viewpoint it wants to impose through the curriculum, and questioned why the county school board was “running away from what they clearly want to say.”
Justice Amy Coney Barrett said the court doesn’t technically need to decide if parents should be allowed to opt-out of the district’s curriculum. Instead, the court only has to rule whether the 4th Circuit Court of Appeals accurately defined a “burden” to the free exercise of religion when it upheld the lower court’s decision to deny the parents’request for a preliminary injunction.
Justices Sonia Sotomayor and Ketanji Brown Jackson, two of the three liberal judges on the court, heavily questioned Baxter on the implications of the court’s potential rulings. At one point, Jackson questioned whether opting out could apply to students who are taught by gay teachers or who have transgender classmates.
Justice Elena Kagan said she could imagine there were parents that also were upset with the books without having a religious objection and asked where Baxter would draw the line for opting out of curriculum. Baxter said if parents have a sincere religious objection, regardless of the instruction of the topic or the age of the student, that objection should result in the choice to opt out.
“Once we say something like what you are asking us to say, it will be like opt-outs for everyone,” Kagan said.
Tuesday’s arguments in the case drew dozens to rallies organized by supporters and opponents outside the Washington, D.C., court.
What happens if the court rules against MCPS?
If the U.S. Supreme Court rules in favor of the parents and against MCPS, it could mean that parents would have the option to not participate in any curriculum that involves the LGBTQ+ storybooks in MCPS.
Depending on how broad the ruling is, it could also mean that parents across the country could opt out of any curriculum offered in public schools due to religious beliefs, including in Montgomery County public schools.
An amicus brief supporting MCPS filed by Yale constitutional law professor Justin Driver and First Amendment law professor Eugene Volokh at the University of California Los Angeles argues that if the court rules in favor of the parents, schools across the country will be forced to change their curricula across several subjects. The amicus brief cites previous challenges to curricula that failed in court, including one case in which parents challenged science courses that referenced elements of evolutionary theory.
“Most obviously, an opt-out regime would impose costs on public school teachers, administrators, and their students,” the amicus brief argues. “On subject after subject, schools would have to choose between substantially narrowing their curricula and sacrificing legitimate pedagogical goals along the way or implementing onerous and impracticable systems for giving notice and opt-out rights to individual students.”
When the court’s liberal justices brought up concerns of the possibility of parents opting their children out of a wide range of curricula or objecting to them being in classrooms with LGBTQ+ students or teachers, Baxter argued that those cases wouldn’t occur often or would fail in court.
This is a developing story and will be updated with more information.
