“Today’s ruling threatens the very essence of public education,” said U.S. Supreme Court Justice Sonia Sotomayor in a dissent after the court decided today that parents have the right to opt out their children before LGBTQ-inclusive books are read in public school classrooms.
The Case and the Ruling
The case, Mahmoud v. Taylor, began when Montgomery County Public Schools (MCPS) in Maryland added several LGBTQ-inclusive picture books to its supplemental curriculum in 2022. The books had been evaluated by a committee of staff members through the district’s usual process and were intended as optional titles for teachers to recommend or read to students if desired.
A group of parents, however, brought a lawsuit in 2023 against MCPS, claiming that the school violated their religious freedom by not giving them the chance to opt out their children from classroom readings of the books. The specific titles they named as objectionable were the picture books Born Ready: The True Story of a Boy Named Penelope; IntersectionAllies: We Make Room for All; Jacob’s Room to Choose; Love, Violet; My Rainbow; Pride Puppy; Prince & Knight; Uncle Bobby’s Wedding; and What Are Your Words?
After a federal district court and appeals court both denied the plaintiffs a preliminary injunction that would have required the district to temporarily grant the parents’ request (a stepping stone to a more permanent settlement), the parents asked the Supreme Court to take the case, Mahmoud v. Taylor, which it did. (For more details on the background of this case, see my earlier piece.)
Justice Samuel Alito wrote the decision (PDF) for the 6-3 court, granting the parents the injunction, saying that without it, “the parents will continue to suffer an unconstitutional burden on their religious exercise, and such a burden unquestionably constitutes irreparable injury.” He explained that “A government burdens the religious exercise of parents when it requires them to submit their children to instruction that poses ‘a very real threat of undermining’ the religious beliefs and practices that the parents wish to instill.”
As for the books in the case, Alito called them, “unmistakably normative,” saying, “They are clearly designed to present certain values and beliefs as things to be celebrated and certain contrary values and beliefs as things to be rejected.” He said of the books that include same-sex weddings, for example, that while many Americans would view them with approval (and have the right to do so), “other Americans wish to present a different moral message to their children. And their ability to present that message is undermined when the exact opposite message is positively reinforced in the public school classroom at a very young age.”
He used Uncle Bobby’s Wedding as an example of a book that “presents a specific, if subtle, message about marriage”—that two people can marry, regardless of gender. “It is significant that this book does not simply refer to same-sex marriage as an existing practice. Instead, it presents acceptance of same-sex marriage as a perspective that should be celebrated.”
If you have read the book, as I have, you’ll know that this is a misleading interpretation. Yes, the book celebrates Uncle Bobby’s nuptials, but does so in the same way it would if he were marrying a woman. It does “simply refer to same-sex marriage as an existing practice.”
Undeterred, Alito said that books involving gender identities are much the same. In IntersectionAllies, for example, “The book and the accompanying discussion guidance present as a settled matter a hotly contested view of sex and gender that sharply conflicts with the religious beliefs that the parents wish to instill in their children.”
Therefore, Alito said, “We cannot accept the [MCPS] Board’s characterization of the “LGBTQ+-inclusive” instruction as mere ‘exposure to objectionable ideas’ or as lessons in ‘mutual respect.’ As we have explained, the storybooks unmistakably convey a particular viewpoint about same-sex marriage and gender.” Because of that, it violates parents’ religious freedom if they can’t opt out their children when the books are used in the classroom.
Justice Thomas, in a concurring opinion, also addressed the Board’s argument that there would be logistical and administrative challenges in allowing students to opt out when LGBTQ-inclusive books are read, saying, “The Board easily could avoid sowing tension between its curriculum and parents’ First Amendment rights. Most straightforwardly, rather than attempt to ‘weave the storybooks seamlessly into ELA lessons,’ the Board could cabin its sexual- and gender-identity instruction to specific units.” Justice Sonia Sotomayor, in the dissent, addresses this ridiculous idea. (See below, under “Broader Implications for Curriculum.”)
The Dissent
Let’s dig into the scathing dissent by Justice Sonia Sotomayor, which Justices Elena Kagan and Ketanji Brown Jackson joined. Sotomayor started by observing, “Never, in the context of public schools or elsewhere, has this Court held that mere exposure to concepts inconsistent with one’s religious beliefs could give rise to a First Amendment claim,” although that is exactly what the majority of the court has done.
Chaos and Censorship
Public schools, Sotomayor said, “offer to children of all faiths and backgrounds an education and an opportunity to practice living in our multicultural society. That experience is critical to our Nation’s civic vitality. Yet it will become a mere memory if children must be insulated from exposure to ideas and concepts that may conflict with their parents’ religious beliefs.”
She explained, “Exposing students 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.” Given the diversity of religious beliefs in our country, however, “countless interactions” every day “might expose children to messages that conflict with a parent’s religious beliefs.”
“The result will be chaos for this Nation’s public schools,” she asserted, between the administrative burden on teachers and the disruptions and absences that could harm children’s learning and development. To avoid those problems, “Schools may instead censor their curricula, stripping material that risks generating religious objections.” The majority’s ruling “will have serious chilling effects on public school curricula…. In effect, then, the majority’s new rule will hand a subset of parents a veto power over countless curricular and administrative decisions.”
She also observed, “The Court today subverts Maryland’s functioning democratic process, whistling past decades of precedent that recognizes the primacy and importance of local decisionmaking in this area of law.”
Misinterpretations by the Majority
Sotomayor also took issue with the majority’s interpretation of the books in the case, saying pointedly of Uncle Bobby’s Wedding, “Because the majority selectively excerpts the book in order to rewrite its story, readers are encouraged to go directly to the source, reproduced below.” And she continued:
The majority strains to cast the book as a story about a child who is apprehensive that her uncle is marrying a man. The book is “coy,” the majority claims, about the reason the protagonist, Chloe, asks her mother, “Why is Uncle Bobby getting married?” With respect, the reason is plainly stated in the book and has nothing to do with the gender of anyone involved: “Bobby was Chloe’s favourite uncle,” the book explains, and Chloe “do[esn’t] think [Uncle Bobby] should get married” because she “wants [them] to keep having fun together like always.” Perhaps conscious of its creative reading, the majority admits the message it identifies is “subtle.” The right word, instead, might be “imagined.”
“If even potentially imagined ‘coy’ messages hidden in a picture book are sufficient to trigger strict scrutiny when they conflict with a parent’s religious beliefs, then it is hard to say what will not,” she stated, adding, “How many children’s books, after all, end with a joyous wedding and the couple living happily ever after?”
Furthermore:
The majority’s myopic attempt to resolve a major constitutional question through close textual analysis of Uncle Bobby’s Wedding also reveals its failure to accept and account for a fundamental truth: LGBTQ people exist. They are part of virtually every community and workplace of any appreciable size. Eliminating books depicting LGBTQ individuals as happily accepted by their families will not eliminate student exposure to that concept.
Broader Implications for Curriculum
MCPS, wrote Sotomayor, wants diverse groups of students to be represented in curricular reading materials, but it cannot do so “simply by consolidating all books involving LGBTQ characters into a single inclusivity hour and allowing opt outs, as the majority appears to believe.” To do so would emphasize difference and “foster exclusion’; in contrast, “The point of inclusivity is to use books representing a diversity of identities and viewpoints the same way one might use any other book, communicating that one’s LGBTQ classmates should be treated in the same manner as anyone else.”
The danger is not just in relation to LGBTQ-inclusive books, she continued, explaining:
Books expressing implicit support for patriotism, women’s rights, interfaith marriage, consumption of meat, immodest dress, and countless other topics may conflict with sincerely held religious beliefs and thus trigger stringent judicial review under the majority’s test. Imagine a children’s picture book that celebrates the achievements of women in history, including female scientists, politicians, astronauts, and authors. Perhaps the book even features a page that states, “Girls can do it all!” … In the majority’s view, it appears, that is sufficient to trigger strict scrutiny of any school policy not providing notice and opt out to objecting parents.
Censoring People, Not Just Books
And as I’ve written myself, it doesn’t stop with books. Sotomayor noted that interactions among teachers and students at a school could also be called into question:
A female teacher displaying a wedding photo with her wife; a student’s presentation on her family tree featuring LGBTQ parents or siblings; or an art display with the phrase “Love Is Love” all could “positively reinforc[e]” messages that parents disapprove on religious grounds. Would that be sufficient to trigger strict scrutiny if a school fails to provide advance notice and the opportunity to opt out of any such exposure? The majority offers no principled basis easily to distinguish those cases from this one.
Not only that, but lessons on mutual respect and bullying prevention could become challenging:
If a student calls a classmate a “sinner” for not wearing a headcovering or coming out as gay, how can a teacher respond without “undermining” that child’s religious beliefs? Can parents litigate the content of teacher responses and impose scripts or opt-out policies for everyday interactions designed to foster tolerance and civility? Again, the majority gives no guidance.
One thing is clear, however: The damage to America’s public education system will be profound.
She concluded:
Today’s ruling threatens the very essence of public education. The Court, in effect, constitutionalizes a parental veto power over curricular choices long left to the democratic process and local administrators. That decision guts our free exercise precedent and strikes at the core premise of public schools: that children may come together to learn not the teachings of a particular faith, but a range of concepts and views that reflect our entire society. Exposure to new ideas has always been a vital part of that project, until now.
The reverberations of the Court’s error will be felt, I fear, for generations. Unable to condone that grave misjudgment, I dissent.
The Books’ Creators Respond
Many of the authors and illustrators involved in the case released a statement via GLAAD, noting that they “strongly disagree” with the court’s decision and explaining, “To treat children’s books about LGBTQ+ characters differently than similar books about non-LGBTQ+ characters is discriminatory and harmful. This decision will inevitably lead to an increasingly hostile climate for LGBTQ+ students and families, and create a less welcoming environment for all students.”
“We created our books for all children,” they asserted, saying that it is important for all young people to see both themselves and people different from themselves in books, which “can help them understand one another and learn to treat each other with acceptance, kindness and respect.”
They added:
We know there are families and educators across the country who are committed to creating inclusive classrooms that meet the needs of the diverse groups of students in their school districts. We are with them in spirit as they work to ensure that all students are seen and supported. We will continue to support LGBTQ+ families and children everywhere and advocate for the right of all students to read freely.
The Way Forward
This is an awful ruling, part of a wider effort to restrict and erase LGBTQ identities, as exemplified in the recent presidential executive order declaring there are only two genders, the efforts to remove mentions of LGBTQ and other marginalized people from federal websites, and the Supreme Court’s decision a week ago to allow states to ban gender-affirming health care for transgender youth. There will be a lot more analysis and commentary in the coming days, and I’ll cover the highlights here.
For the moment, I’ll leave you with a quote from GLAD Law Senior Director of Civil Rights and Legal Strategies Mary Bonauto, who argued before the Supreme Court in the Obergefell case that made marriage equality law nationwide 10 years ago (and is also a queer mom). GLAD Law is one of several LGBTQ advocacy organizations that submitted friend-of-the-court briefs in Mahmoud. Bonauto emphasized in a statement: “Today’s ruling does not change schools’ obligation to prepare students to interact with and thrive in a diverse and ever-changing world.” She praised the “‘windows’ and ‘mirrors'” approach that MCPS took to its curriculum, and asserted:
LGBTQ+ people and families exist, students in our public schools have LGBTQ+ parents, and books that include LGBTQ+ people should not be treated differently than those without LGBTQ+ people. The Court’s decision does not require our schools to abandon these efforts. Parents, students, educators, and neighbors can encourage opportunities for learning about diverse people and families by staying involved with school districts, school boards, and in our local communities.
Let’s take that mission with us as we move forward from here.