The Supreme Court on Tuesday will hear a case brought by Maryland parents who say public schools are trampling their religious rights.
At issue is whether Montgomery County Public Schools violated the Constitution by requiring elementary school children to sit through LGBT-themed story time without notifying parents or letting them opt out of books about gender identity, Pride parades, and same-sex relationships.
Outside the high court, a coalition of Muslim, Catholic, Protestant, and Jewish parents is expected to rally in support of restoring what they describe as a simple and long-standing accommodation: the right to be notified and say no.
Montgomery County had initially provided opt-out notices when it rolled out its “inclusivity” reading program in 2022. The books, used for children as young as three years old, include Pride Puppy, which asks students to identify images such as a “drag queen,” an “intersex flag,” and “leather,” and Born Ready, which encourages students to embrace self-defined gender identity and questions the role of doctors in determining a newborn’s sex.
The lawsuit at issue was filed the following spring after the school board reversed its plans to allow parents to opt their children out of LGBT-related content, according to Michael O’Brien, an attorney with the Becket Fund for Religious Liberty, who spoke to the Washington Examiner.
“On March 22, 2023, [the board] publicly reaffirmed that notice and opt outs would continue. And then, literally overnight on March 23, 2023, the board posted on its website, without explanation, that the opt outs would now be barred and no notice would be afforded to parents when the instruction would take place,” O’Brien said.
Becket lawyers argue that the school board’s sudden reversal violates both Maryland law and the board’s own prior policies.
In a similar episode nearly two decades ago, the district introduced controversial materials in middle school sex education, and at the time it not only followed opt-out rules, but offered an opt-in — an extra safeguard, O’Brien noted, that implicitly recognized the religious sensitivity of such topics.
The parents are asking the justices to affirm that the curriculum imposes a “substantial burden” on their free exercise rights and to apply the strict scrutiny test the Supreme Court has used in similar religious liberty cases.
“The board hasn’t come close to meeting its burden,” O’Brien said, noting parental rights have been under violated for nearly two years. “The court has everything it needs to resolve this now — before another school year starts and more harm is incurred.”
Montgomery County says its curriculum is age-appropriate and necessary to foster an inclusive learning environment. Officials argue that broad opt-outs would make it impossible to administer consistent instruction and expose LGBT students to isolation and stigma.
Maryland Attorney General Anthony Brown, a Democrat, argued in an amicus brief to the Supreme Court that “declining to allow opt-outs reflects a determination that, whatever one’s views about whether being LGBTQ is ‘right’ or ‘wrong,’ students must learn to treat LGBT people with respect and dignity.”
Lower courts sided with the school system, with the U.S. Court of Appeals for the 4th Circuit ruling there was no evidence students were being compelled to change their religious views. But in dissent, Judge A. Marvin Quattlebaum Jr. said the policy “burdened these parents’ right to exercise their religion and direct the religious upbringing of their children.”
O’Brien noted that nothing at issue before the justices Tuesday is asking them to tell schools what they can and cannot teach to students.
“Parents aren’t trying to change the curriculum — they’re just asking not to be kept in the dark, and to opt out when this kind of instruction substantially interferes with their right to guide their children’s religious upbringing,” O’Brien added.
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The case is one of three major religious liberty disputes the justices are weighing this term, alongside a challenge to Oklahoma’s approval of a Catholic charter school and a Wisconsin tax exemption case involving Catholic Charities.
A decision in the case, Mahmoud v. Taylor, is expected by the end of June.