Maryland parents are set to ask the Supreme Court on Tuesday to uphold their religious rights and let them opt their elementary age children out of LGBTQ story time after a public school board stopped notifying them about books that teach about gender transitioning and drag queens.
The Montgomery County Board of Education rolled out an “inclusivity” reading program in 2022 to celebrate pronouns, pride parades and gender transitioning for pre-K through fifth-grade students.
At the time, parents were given notice and told they could opt their children out of the story time, but in 2023 that changed when the board reversed the notification policy.
That prompted a group of parents from various faiths — Muslim, Catholic, Protestant and Jewish — to challenge the lack of notice and opt-out option, arguing that the school system is infringing on their free exercise of religion because their faiths do not support LGBTQ teaching.
Lower courts ruled against the parents in their request for an injunction.
But Nathan Lewin, a lawyer with deep experience before the Supreme Court, says there’s precedent supporting the Maryland parents in their free exercise claim.
He filed a brief half a century ago in support of Amish parents who sought to keep their children out of school after the eighth grade in accordance with their faith. Wisconsin, at the time, had a law that required students to be in school until they were 16. In the 1972 decision in Wisconsin v. Yoder, the high court ruled that the free exercise of religion outweighed the state’s interest in compelling school attendance.
“I believe that the same fundamental principles that I articulated more than half a century ago in support of the Amish vindicate the legal position of the Maryland parents,” Mr. Lewin said.
“The constitutional mandate that this court invoked to resolve the Yoder case in favor of the Amish parents controls this litigation. The state of Maryland must accommodate its public-school instruction to the legitimate and nonharmful beliefs of Maryland parents whose religious beliefs conflict with otherwise prescribed curricular teaching on sexual orientation and gender identity,” he added. “In this case, reasonable accommodation is simple and elementary.”
Robert W. Tuttle, a professor at George Washington University Law School, said the Yoder case is hard to square with current doctrine from the court and that it would be difficult for the school system to come up with a workable opt-out process.
“Yoder is a one-off case. It is the only decision in which the Supreme Court said parents have the right to determine the way the curriculum applies to a child, but there they just excused the children from attendance altogether,” he said. “It is really an outlier. There is nothing in the history of Supreme Court law about religious accommodations that comes close to that decision.”
One of the books used in the curriculum is titled “Pride Puppy,” which is aimed at 3- and 4-year-olds to teach them about Pride parades. It has them spot items that may be present on the page such as an “intersex flag,” “drag queen,” “underwear” and “leather.”
Another book, titled “Born Ready: The True Story of a Boy Named Penelope,” promotes letting children decide their gender and the idea that doctors only guess at birth.
According to court documents, teachers are instructed to tell students that “not everyone is a boy or girl” and “some people identify with both, sometimes one more than the other and sometimes neither.” They are told to encourage the use of preferred pronouns.
A spokesperson from Montgomery County Public Schools did not respond to a request for comment about the upcoming arguments.
In court filings, the school system argues that there is no evidence that the school is forcing children to change their views. It also stated that the opt-out option became unworkable.
“The growing number of opt-out requests … gave rise to three related concerns: high student absenteeism, the infeasibility of administering opt-outs across classrooms and schools, and the risk of exposing students who believe the storybooks represent them and their families to social stigma and isolation,” the school system stated.
“These consequences would defeat [the school system’s] efforts to ensure a classroom environment that is safe and conducive to learning for all students and risk putting MCPS out of compliance with nondiscrimination laws.”
The case is Mahmoud v. Taylor. A decision is expected by the end of June.
