Supreme Court to rule on parental opt-out for LGBTQ books in Schools
The Supreme Court on Tuesday was sympathetic to a group of Maryland parents who want to be able to opt their elementary-school-aged children out of instruction that includes LGBTQ+ themes. The parents argued the refusal of the local school board to allow them to make this choice violated their religious beliefs, and therefore their constitutional rights to freely practice their religion. During the nearly two-and a half hours of oral arguments, the majority of justices seemed to agree, and several justices questioned whether there would be any harm in allowing parents to excuse their kids from the instruction.
The parents of the children in this case are from Montgomery County, a county in the Washington, D.C. suburbs that is one of the religiously most diverse in the United States. Parents include Tamer Mahmoud, Enas Barakat and Melissa and Chris Persak who are Roman Catholics, as well as Svitlana Roman and Jeff Roman who are Ukrainian Orthodox Roman Catholics. In 2022, the county school board approved books with LGBTQ+ characters to be used in its language arts curriculum. One book tells the tale of a girl who attends her same-sex uncle’s wedding, while Pride Puppy tells the tale of a lost puppy during a Pride Parade. The board announced the following year that parents would no longer be able to excuse their children’s education by using LGBTQ-themed stories. The parents in this case then went to federal court to argue that the board’s refusal of allowing them to opt out of instruction using the LGBTQ-themed storybooks violated their First Amendment rights to freely exercise their faith because it stripped them from their ability to teach their children about gender and sexuality based on their respective religions and control how and when they are exposed to these topics. The lower courts refused to require the school board temporarily to notify parents when storybooks will be used and allow them to opt out of instruction. A federal appeals judge reasoned that the parents did not prove that exposing their kids to the storybooks forced them to violate their religious beliefs.
Several Justices had questions regarding what it meant for children to be “exposed”. Clarence Thomas asked Eric Baxter, who argued for the parents, whether the LGBTQ-themed stories were simply present in the classroom or instead actively used to supplement the curriculum.
Baxter explained to Clarence Thomas that teachers were required to use the books. The school board suggested that they do this five times before the year’s end. He stressed that the purpose of including storybooks in the school curriculum was to ensure that all students would be taught using them. Justice Amy Coney Barrett said that teaching the content of the storybooks could be more than just exposure. She argued that presenting an idea as a fact, like telling students “this is the correct view of the world,” is different from exposing them to it, like telling students “some people believe” a certain thing. Justice Neil Gorsuch echoed the idea that a teacher telling students that “some people believe X and X is hurtful and negative” would be more than “exposure on your theory.” Justice Sonia Sotomayor argued that it did not. But Chief Justice John Roberts was more skeptical. He asked Alan Schoenfeld, who represented the school board, about a scenario in which a teacher told students that anyone who believed that same-sex marriage was not moral “is not a good person.” He asked Alan Schoenfeld who represented the school district about a hypothetical scenario where a teacher said that anyone who believes that same-sex married is not moral is not a good man. Justice Elena Kagan asked Baxter first to explain his rule. Kagan asked Baxter if it was true. When he said yes, Kagan expressed concern that parents would decide it was unfair that their children had to leave the class to avoid materials that they objected to. This could lead to a challenge of the materials.
Kagan and Schoenfeld returned to the topic, noting that Baxter had said that opt-outs are rare in other scenarios such as high school and the teaching evolution. This suggests that they would be limited if a court ruled for the parents.
Schoenfeld told Kagan, “if you constitutionalize this, people will use it.”
Justice Sonia Sotomayor agreed with Kagan, stating that parents have objected to books that feature divorce, interfaith weddings, and immodest clothing. She asked where parents would draw the line, beyond requiring that the school inform them of the program and then allow them the option to opt out.
Justice Ketanji Brown Jackson expressed similar skepticism. She asked how far this rule would go. She asked, for example, if a parent could ask that her child be placed in a class with a teacher who is gay and has pictures of their same-sex marriage in the classroom.
Several justices seemed to think that the question was a straightforward one. Justice Brett Kavanaugh questioned Baxter that the parents were not “seeking a stop to instruction in the classroom,” they only wanted to “not be forced to participate.” Alito then asked “what’s the big deal if they are just seeking to have their kids excused from the instruction using storybooks?” But some justices were not convinced. Alito observed that students can opt out of health class, while Kavanaugh expressed frustration that the school board couldn’t accommodate the parents when “every other school board has opt-outs for all sorts of things” – as does Montgomery County itself.
Schoenfeld countered that “dozens of students” had been opting out, and that it was not possible for school officials to make arrangements for the space, supervision, and alternate instruction needed for the many students who would opt out. Jackson added that the storybooks weren’t being used to teach a specific unit, such as gender or sexuality. Instead, they were being used as part of the English curriculum. She said that it was “pretty infeasible” for people to leave the classroom when these storybooks were being used in English classes.
Baxter said that the school board only raised the issue of opt-outs after the litigation. He said that the school board had initially stated that it wanted to eliminate opt-outs to ensure that everyone could benefit from the lessons of inclusivity that storybooks were meant to teach.
Kavanaugh said that the goal of the court’s religious cases is to “find the win/win”, allowing both religion and the government to pursue their goals. He stressed that the parents in this case “aren’t requesting MCPS to alter its curriculum,” but “just want to have the ability to opt their child out so that they aren’t exposing them to things that are contradictory to their own religious belief.” By the end Tuesday’s oral arguments, a majority appeared to be poised to grant them that opportunity.
Posted in Featured, Merits Cases
Cases: Mahmoud v. Taylor
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Amy Howe
Supreme Court to rule on parental opt-out for LGBTQ books in Schools
SCOTUSblog
(Apr. 22, 2025, 5:45 PM),
