The Supreme Court Majority Seems Likely to Side with Religious Parents

Oral Argument in Mahmoud v. Taylor

​It was reading time at the U.S. Supreme Court today, though the oral argument in Mahmoud v. Taylor did not end with milk, cookies, and a nap. It did indicate, however, a likely victory for the plaintiffs.

Much of today’s oral argument centered around the storybooks included in the pre-K to 6th grade curriculum in Montgomery County schools. One such storybook, Prince & Knight, factored into the discussion.

Here’s a summary of that book written for children ages 4 to 8: Once upon a time, there was a prince who was urged by his royal parents to visit neighboring kingdoms to find a suitable bride. But the prince did not find the woman he loved. While on his journey, the prince was informed that a dragon was attacking his kingdom. He joined forces with a dashing knight, who used his shield to blind the monster. This allowed the prince to successfully ensnare the dragon. When the prince tripped, the knight came to his rescue and caught him in his arms. That’s when the prince realized that he was, in fact, in love. And soon prince and knight were warmly received into the kingdom, which joyfully celebrated their royal wedding.

Another such book, Love Violet, tells the story of a girl who harbors a secret crush for another girl in her class.

In the eyes of many, Prince & Knight and Love Violet spin tales that help children to grow up with respect and acceptance. In the eyes of families that are adherents of great world religions – from Roman Catholicism to Christian evangelicalism, to Islam and Orthodox Judaism – these stories indoctrinate children into celebrating relationships that their religions reject as sinful. Forcing this instruction, therefore, is a violation of the First Amendment rights of the parents’ free exercise of religion.

No one in this case is seeking suppression of these books and teachings. Religious parents of Montgomery County school children are merely seeking the right to opt out their children from the books and its related curriculum. The Montgomery County school board at first allowed such opt-outs, then denied them, claiming that allowing them would be impractical to manage. The Fourth Circuit Court of Appeals upheld the school board’s decision, finding that “simply hearing about other views does not necessarily exert pressure to believe or act differently than one’s religious faith requires.”

In today’s oral argument, Justice Samuel Alito pushed back on that notion. Given that these books are read to children as young as age four, he said many will lack the faculties to dispute or disagree with what they are being told.

“I don’t think anybody can read that and say, ‘Well, this is just telling children that there are occasions when men marry other men,” said Justice Alito. “It has a clear moral message, and it may be a good message. It’s just a message that a lot of religious people disagree with.”

Justice Elena Kagan acknowledged that what some Montgomery County principals had flagged – regardless of gender, the storybooks’ focus on romantic relationships was a questionable choice for children as young as four. “I too, was struck by these young kids picture books and, on matters concerning sexuality, I suspect there are a lot of non-religious parents who weren’t all that thrilled about this.”

But Justice Kagan stuck to the notion that if opt-outs are allowed in this instance, they will have to be allowed for a host of other objections, perhaps even to the teaching of evolution in biology class. Justice Kagan said: “Once we articulate a rule like that, it would be like opt-outs for everyone.”

Justice Ketanji Brown Jackson’s questions centered around the point that an opt-out rule would “constitutionalize” local decisions on curricula best left to the communities. “Maybe in one community, one set of values, these books are fine, but in another community with a different set of values, they’re not,” she said.

Justice Alito returned to the point that the plaintiffs were not asking that the books be removed. “What’s the big deal about allowing them to opt out?” he asked. “I am not understanding why it’s not feasible,” said Justice Brett Kavanaugh.

Overall, the tone and tenor of today’s oral argument indicates a solid majority will come down on the side of observing the right of religious parents to opt-out their children.

Two minutes into this two-and-a-half hour-long hearing, Eric Baxter of the Becket Fund for Religious Liberty, which represents the parents, drew on Protect The 1st’s own amicus brief for his presentation. In that brief, Protect The 1st declared: “Properly understood, the First Amendment forbids the government from imposing such coercive choices on parents as a precondition to participating in a public benefit, including public education.”
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Though we rarely make predictions about how the Court will decide, we believe that will be the likely stance the Court majority will take.

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