The Supreme Court rounded out its term in June with another blow to LGBTQ rights. In Mahmoud v. Taylor, the Court’s six Republican-appointed justices sided with parents in a case involving religious rights and LGBTQ-inclusive storybooks. The parents (of Muslim, Catholic, and Orthodox Christian faiths) asked the Court to require Montgomery County, Maryland, to reinstate a policy allowing them to opt their children out of story hours that include books with LGBTQ themes, including a same-sex wedding. They argued that exposing their children to the works interferes with their ability to exercise their religious values freely.
On its face, supporting the parents’ request for an injunction against the school board—effectively reinstating the opt-out option as litigation continues—may not seem like a setback for LGBTQ rights. After all, in the short term, the outcome only affects the district’s opt-out procedure. During the proceedings, the Court did not question the board’s authority to choose the content and feature the books. Neither does it directly impact other jurisdictions.
However, the Court’s rationale—and its characterization of the storybooks—opens a window for future religion-based attacks on LGBTQ-relevant content, particularly where parental rights are involved.
Yoder and Free Exercise
In 2022, the Montgomery County school district, among the nation’s largest and most religiously diverse, updated its K-5 language arts offerings to include books with marginalized communities among the many available options in a classroom library, as recommended readings or as part of classroom instruction or read-aloud. Among the books were stories featuring same-sex marriage and discussions about gender identity. The school board asked teachers to notify parents when these books were scheduled for class discussion and allow parents to excuse their children if they desired. Many parents used this option, especially for LGBTQ books. The district determined it was too difficult to manage and, in 2023, it removed the opt-out option.
The Constitution’s First Amendment protections prevent Congress (and by extension the states) from infringing on free speech and the “free exercise of religion.” It also prohibits the establishment of any state-mandated religion. First Amendment cases, especially those involving free exercise, often require the Court to balance competing rights-based claims: an individual’s right to exercise religion without governmental interference and the state’s obligation not to favor a specific religious perspective. The Court’s long history of religious rights cases reflects the weighing of these constitutional mandates.
In Mahmoud, the Court relied primarily on Wisconsin v. Yoder, a 1972 case involving Amish parents’ rights to keep their children home after 8th grade rather than comply with the state’s compulsory education law, which dictated that they attend high school. In an opinion by Chief Justice Warren Burger, the majority determined that the law violated the parents’ religious rights to educate their children at home. Compliance would force Amish parents to expose their children to educational programs that sat “in sharp contrast with the fundamental mode of life mandated by the Amish religion.”
The Mahmoud majority relied on this logic in an opinion written by Justice Samuel Alito, who argued that, as with Yoder, without an opt-out alternative, parents were forced to send their children to schools whose curriculum contrasted with their fundamental religious values. In doing so, the Board “imposed upon children a set of values and beliefs that are ‘hostile’ to their parents’ religious beliefs.”
Sotomayor’s Dissent
The parents’ request—and the result—may seem reasonable. The Court’s argument, on its face, does not prevent the school district from including books centering LGBTQ inclusion in its curricula. And the opt-out would only, in theory, affect those students whose parents wish to keep their children home.
However, as with many Court decisions, the devil is in the doctrine. The doctrines––or rationales––allow judges to use the same logic in future cases. Despite the narrow facts of this case, Mahmoud’s logic could be used in many instances involving parental rights, free exercise, and LGBTQ content.
In a dissent joined by Justices Elena Kagan and Ketanji Brown Jackson, Justice Sonia Sotomayor wrote that the Court’s doctrine in this case “offers no limiting principle.” Its new logic could legitimize a wide range of religious-based challenges to initiatives, particularly those involving LGBTQ communities.
The decision, according to Sotomayor, “distorts” Yoder and “invents a Constitutional right to avoid exposure to ‘subtle’ themes ‘contrary to the religious principles’ that parents wish to instill in their children.” Simply exposing children to the “message that LGBTQ people exist and that their loved ones may celebrate their marriages and life events, the majority says, is enough to trigger the most demanding form of judicial scrutiny.”
First, the majority confected a new, and much lower, “burden” for free exercise claims to prevail in parental rights cases. Past rulings attempted to balance free exercise rights against individuals’ responsibility to comply with otherwise reasonable state laws. Mahmoud lowers that bar, all but inviting individuals to claim that state policies impose a free exercise burden. Past cases like Yoder and others argue that claims must demonstrate that a policy “substantially interferes with the [child’s] religious development and… integration into the way of life of” the parent’s faith.
In Mahmoud, Alito’s interpretation of Yoder only requires claimants to hypothesize potential religion-based burdens. He argues that “a plaintiff need not wait for the damage to occur.” He continues, “We do not need to ‘wait and see’ how a particular book is used in a particular classroom on a particular day before evaluating the parents’ First Amendment claims. We need only decide whether—if teachers act according to the clear and undisputed instructions of the Board—a burden on religious exercise will occur.” In particular, Alito suggests it would be too onerous for parents to obtain the necessary evidence.
Alito’s new “test” is unworkable in two ways: it has no limits and is highly subjective.
As Sotomayor argues, the majority opinion does not establish standards of evidence for claimants to meet in future cases that rely on Mahmoud. If parents need only suggest a plausible burden, what are the contours of that burden? And how must one demonstrate its likelihood? In Mahmoud, the parents could not point to any specific, substantial intrusions on their ability to impart their religious values to their children stemming from using the books during classroom instruction. And yet they could compel the Court to require the opt-out. How will future cases, different policies, and other contexts fare under this new doctrine when evidence is no longer required, when a plaintiff only needs to claim a plausible burden? Must schools featuring books about gay families or transgender kids offer parents a way out?
This new test amplifies the power of judges, particularly their reliance on intuition, as they divine both the likelihood and magnitude of the burdens to religious values. This can amplify judicial bias. For example, in his effort to demonstrate the “normative” nature of the curricula and the district’s guidelines for managing related classroom discussions, Alito took aim at Uncle Bobby’s Wedding, a picture book for 3–6-year-olds that includes a same-sex wedding. In this book, a young girl, Chloe, is upset that her favorite uncle is getting married; she worries about what will happen if “Uncle Bobby no longer has time for picnics, swimming, or flying kites.” The book is about a young person’s fear that her relationship with her uncle will change after he is married, not her attitude toward LGBTQ relationships.
Alito focuses on Uncle Bobby’s partner, Jamie, who is a man. He describes the book as “coy” but threatening because, after Chloe wonders why her uncle is getting married, her mom says, “Bobby and Jamie love each other. When grown-up people love each other that much, sometimes they get married.” Specifically, Alito laments the following passage, describing those attending Bobby and Jamie’s wedding: “Everyone was smiling and talking and crying and laughing,” even adding emphasis to underscore his point.
Leaning on these passages, Alito described the book as “not simply refer[ring] to same sex marriage as an existing practice” but “present[ing] same-sex marriage as a perspective that should be celebrated.”
Alito has made no effort to hide his opinion on Obergefell v. Hodges, the 2015 decision that outlawed bans against same sex marriage. He and Justice Clarence Thomas have been featured speakers at the Federalist Society, criticizing the decision and saying that it threatens free speech and free exercise. For Alito, Obergefell endangers the right of people to say that “marriage is a union between one man and one woman” without “being labeled as bigots and treated as such by governments, employers, and schools.”
Yet, as Sotomayor pointed out, “LGBTQ people do exist” and, thanks to Obergefell, they can—and do—get married. Indeed, it is common for those attending a wedding to be happy for the newlyweds. Regardless of one’s religious beliefs, the fact of married gay couples and their weddings cannot be refuted. Indeed, the book would read identically if Jamie were a woman instead of a man. Yet, according to Alito, the story is “unmistakably normative” about same-sex marriage. One book featuring a same-sex wedding threatens the religious rights of parents, according to Alito’s reasoning. By this logic, a children’s book that featured a Hindu wedding or an inter-denominational ceremony would potentially be so unsettling to some Christian or Jewish parents that they could demand an opt-out, especially if the attendees in the story enjoy the ceremony.
Alito uses the same interpretive lens when analyzing the board’s teacher guidance for leading class discussions. It issued specific directives for teachers to accept differing opinions about sexual orientation and gender identity. It also encouraged faculty to teach students that “in any community, we’ll always find people with beliefs different from our own and that is okay—we can still show them respect.” The guidance offers language on promoting “respect and kindness” across differing identities and perspectives.
Still, Alito described the guidance as “reprimand[ing] children who disagree” and “encourag[ing] the teachers to correct children and accuse them of being ‘hurtful’ when they express a degree of religious confusion.” But that is not the case. Sotomayor points out that the majority can only reach this opinion “by omitting portions of the student commentary to which the teachers are responding in the guidance.” For instance, the board encourages teachers to use the word “hurtful” in response to anti-gay comments, like “that’s so gay,” not, as Alito would have us believe, in the context of sincere and respectfully stated concerns about sexuality and identity. No one’s faith is being chastised.
Mahmoud and the Future of LGBTQ Rights
What does the future hold for LGBTQ cases that might rely on Mahmoud? No one knows. But the Court has supported numerous efforts to limit LGBTQ-supportive expression, especially in First Amendment cases.
In 1995, the Court sided with a Boston-based St. Patrick’s Day Parade organizer who refused to allow the Irish American Gay, Lesbian, and Bisexual Group of Boston (GLIB) to march. The Court reasoned that LGBTQ people could participate as individuals. But a group with a pro-gay banner ran afoul of the parade organizer’s beliefs protected under the First Amendment. In 2000, the Boy Scouts similarly convinced the Court that, despite a New Jersey law against sexual orientation discrimination, it had a right to fire James Dale as a scoutmaster when they discovered that he was openly gay. Both Dale’s orientation and openness put him at odds with the values of the Boy Scouts.
Mahmoud is in a similar vein. Even though the Court itself has sanctioned the rights of gay people to marry and of gay and trans people to work openly, Mahmoud opens the door for a host of questions and potential setbacks. Amid a multi-year upswing of state and federal LGBTQ rights retractions, one wonders what’s next and who gets to decide. Will opt-outs for LGBTQ-supportive topics be required for every school under Mahmoud? And if a book referencing gay nuptials is an “obvious” trigger for a parental release, what’s to stop a parent from asking for an opt-out when a classmate with gay parents discusses their family? Or when a transgender child speaks openly about their gender identity? If children’s books with same-sex weddings are threats to religious freedom, are the children of same-sex marriages threats as well?
