Last Friday, the Supreme Court granted certiorari in its latest religious freedom case, Mahmoud v. Taylor, which involves another variation on the sadly familiar theme of rogue school boards. It provides the Court an opportunity to push back on attempts to weaken First Amendment protections for parents whose children attend public school.
In 2022, the board of education in Montgomery County, Maryland, mandated an assortment of storybooks for young children that promote sex changes, Pride parades, and same-sex romance between young children. In what reads like a bad joke, the board deems such a one-sided curriculum on sexuality to be “inclusive.” While mainstream media tends to present a sanitized version of the content, the Becket Fund for Religious Liberty offers a more candid sampling:
[O]ne book tasks three and four-year-olds to search for images from a word list that includes “intersex flag,” “drag queen,” “underwear,” “leather,” and the name of a celebrated LGBTQ activist and sex worker. Another book advocates a child-knows-best approach to gender transitioning, telling students that a decision to transition doesn’t have to “make sense.” Teachers are instructed to say doctors only “guess” when identifying a newborn’s sex anyway.
Becket represents parents of Muslim, Christian, and Jewish faiths who seek not a ban on the objectionable storybooks, but the ability to opt their children out when they are read. Anything short of that would violate their religious beliefs. When the mandate was initially announced, no litigation was in sight. The board had promised parents they would be notified when the material was read and given the opportunity to opt out.
But in 2023, the board reversed course, ending their notice and opt-out policy. That despite continuing to allow opt-outs from sex education classes for older students. When parents attended school board meetings and voiced their religious objections, they were denigrated by board members as racists and xenophobes who were promoting “hate.” Invoking the Free Exercise Clause, the parents sued the board based on its refusal to accommodate them and sought the restoration of the earlier promised right to opt out.
The parents were denied a preliminary injunction by the district court, a ruling affirmed by the Fourth Circuit by a 2–1 vote. There was missing “a cognizable burden to support their free exercise claim,” the panel held, because the lack of opt-outs does not “compel[] the Parents or their children to change their religious beliefs.” But a burden does not have to rise to the level of such compulsion to be a burden—and here, of course, schoolchildren were being compelled to take part in instruction that conflicted with their faith.
A rich body of case law from Sherbert v. Verner (1963) to Fulton v. City of Philadelphia (2021) recognizes indirect pressure to be a burden to free exercise. Perhaps the most relevant precedent is the landmark school case Wisconsin v. Yoder (1972), which recognized “the fundamental interest of parents, as contrasted with that of the State, to guide the religious future and education of their children.” That case involved the successful challenge by Amish parents to a requirement for their children to attend one or more years of secondary school. The ask in Mahmoud is modest by comparison.
While the Fourth Circuit joins four other circuits that reached the same conclusion versus a single outlier that disagreed (the Eighth Circuit), it may be a promising sign that the Supreme Court is taking this case. Yoder was undisturbed by Employment Division v. Smith (1990), the decision that narrowed free exercise claims, and remains good law, although a majority of the current Court is on record in Fulton wanting Smith itself revisited or overturned outright.
As Becket’s cert petition for the parents argues, public schools should not be exempt from the free exercise protections that protect citizens against other government actors. A Court that has been correcting past judicial disparagement of free exercise should ensure that that right is not diminished in the context of education, which has one of the richest pedigrees of recognition from the Court.