The U.S. Supreme Court’s conservative majority on Tuesday appeared strongly inclined to support the right of religious parents to excuse their children from a Maryland school district’s use of LGBTQ+ storybooks in its elementary schools.
“The plaintiffs here are not asking the school to change its curriculum. They’re just saying, ‘look, we want out,’” Justice Samuel A. Alito Jr. told the lawyer for the Montgomery County school district during two-and-a-half hours of arguments in . “What is the big deal about allowing them to opt out of this?”
The district began using the storybooks in its English/language arts curriculum in 2022 and initially allowed religious parents to keep their children out before reversing course and ending the opt-out option. A group of Muslim, Roman Catholic, and Ethiopian Orthodox parents sued the district, arguing the reversal violated the First Amendment’s guarantee of free exercise of religion. Two lower courts declined to grant a preliminary injunction.
The case holds major implications for religious-based challenges to school curriculum materials across the country. But Justice Brett M. Kavanaugh was another conservative justice who said he could not understand why the school district could not find a way to accommodate the religious parents.
“I guess I am a bit mystified, as a life-long resident of the county, how it came to this,” he said, noting that Maryland was founded on religious liberty and tolerance, and “Montgomery County has been a beacon of that religious liberty.”
He wondered whether “this is the hill we’re going to die on, in terms of not respecting religious liberty, given that history.”
District’s LGBTQ+ storybooks are major focus of oral argument
Alan A. Schoenfeld, the lawyer for the 160,000-student district located near the nation’s capital, said “every school board walks a tight rope,” and that “it’s a difficult job balancing the interests of a diverse community. Montgomery County Public Schools are the most religiously diverse in the country.”
He said the five books “are meant to foster mutual respect in a pluralistic school community. … The lesson is that students should treat their peers with respect.”
The storybooks currently in use in pre-K and elementary grades are Born Ready; Intersection Allies; Love, Violet; Prince & Knight; and Uncle Bobby’s Wedding—all feature LGBTQ+ characters and themes.
At least one justice appeared to bring copies of the books to the bench, and several quoted passages during the argument. Alito had a bit of a skirmish with Justice Sonia Sotomayor over Uncle Bobby’s Wedding, which tells the story of a young girl who expresses some reservations about her uncle marrying another man before coming around.
Sotomayor, a liberal who appeared supportive of the school district, suggested that Uncle Bobby’s Wedding was a fairly innocent portrayal of the fact that some members of the same sex do get married.
Alito countered, “We could have a book club and have a debate about how Uncle Bobby’s Marriage [sic] should be understood.”
The book “has a clear message” in support of same-sex marriage, Alito said. “And a lot of people think it’s a good message, and maybe it is a good message, but it’s a message that a lot of people who hold on to traditional religious beliefs don’t agree with.”
Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Neil M. Gorsuch, and Amy Coney Barrett also asked questions or made comments that suggested that they leaned toward the parents.
Barrett suggested the school district was going beyond teaching respect for LGBTQ+ students and families with books that were “validating the other world view here, the one that is different from the [religious parents] by saying no, no, no, this is right.”
When Shoenfeld said the goal of the program was teaching “mutual respect,” Barrett asked, “So it was part of the curriculum to teach them that boys can be girls … or that your pronouns can change depending on how you feel one day to the next?”
Advocates for parents argue religious rights are infringed
Some of the Montgomery County parents who sued were in the courtroom. Eric S. Baxter, a lawyer with the Becket Fund for Religious Liberty, which is representing the parents, emphasized that his clients are not seeking to remove the LGBTQ+ storybooks from the Montgomery County district’s curriculum. They are only seeking to opt out their children, he said, the way that the district and most others around the country offer such accommodations for sex education.
“But Montgomery County is an extreme outlier, insisting that every elementary school student must be instructed that, among other controversial matters, doctors guessed at their sex when they were born and that anyone who disagrees is hurtful and unfair,” Baxter said.
Baxter was challenged by liberal Justice Elena Kagan, who said, “In the end, is what you’re saying: When a religious person confronts anything in a classroom that conflicts with her religious beliefs or her parents’ [beliefs], that the parent can then demand an opt-out?”
When Baxter said yes, Kagan said she worried that religious parents’ next legal case would be a broader challenge to alter the curriculum for all students.
Baxter disagreed, saying that no student or parent “has the right to tell the school what to teach or to tell other students what they have to learn.”
Liberal Justice Ketanji Brown Jackson pressed Baxter about whether religious parents could seek similar opt-outs when a gay teacher displays a photo of her wedding on her desk or talks about her spouse in class.
When Baxter said he thought the same requirement for opt-outs should apply, Jackson said, “So this is not just about books.”
The parents who filed the lawsuit had the support of President Donald Trump’s administration, with Sarah M. Harris, the principal deputy U.S. solicitor general, saying, “Montgomery County offers a free public education to parents only if their children use books featuring same-sex relationships and transgender issues. That burdens parents of multiple faiths whose religious duty is to shield their young children from such content.”
Controversial Pride Puppy! book eventually gets a mention
The argument tended to keep returning to the books.
Jackson said it was her understanding that the Montgomery County district was explicit that the LGBTQ+ storybooks “were to be used only to supplement the English/language arts curriculum as reading instruction and not to teach about gender or sexuality.”
She said it seemed “infeasible” in elementary school English lessons that “every time this particular kind of book comes out, we have to start letting people leave the classroom.”
Throughout the long argument, none of the justices or the lawyers representing the parents and the Trump administration had mentioned two books that were initially part of the Montgomery County program but were later pulled, My Rainbow and Pride Puppy!
So it was a bit of a surprise when Schoenfeld, the district’s lawyer, brought up Pride Puppy!, a book aimed at 3- and 4-year-olds which has drawn controversy from some quarters for asking readers to search, on pages of an LGBTQ+ pride parade, for images including “underwear,” “leather,” “lip ring,” and "[drag] queen.”
When Gorsuch asked about what kind of lessons were being offered to pre-K students as young as three, Schoenfeld noted Pride Puppy! and that it was no longer part of the curriculum.
Gorsuch pounced.
“That’s the one where they are supposed to look for the leather and things, and bondage—things like that, right?” he said, adding “a sex worker?”
Schoenfeld suggested some of those descriptions were inaccurate and that even Pride Puppy! helped influence students “towards civility.”
A decision in the case is expected by late June or early July.
