The Supreme Court heard oral argument Tuesday in Mahmoud v. Taylor, a case addressing parental rights in public schools. The lawsuit arose after the Montgomery County Public Schools adopted a new “inclusivity” curriculum for elementary school children that introduced Pride parades, gender transitioning, preferred pronouns, playground same-sex romance, and other controversial topics around sexuality and gender identity. After hundreds of parents—Muslim, Catholic, Ethiopian Orthodox—began opting their children out of the curriculum, MCPS announced that parents would no longer be notified when the books were read and would no longer be allowed to opt their children out.
During the oral argument, several justices were puzzled that MCPS defended this case all the way to the Supreme Court. Justice Kavanaugh—who pointed out that he is a lifelong resident of Montgomery County—was “a bit mystified how it came to this,” noting that “Maryland was founded on religious liberty” and expressing surprise that MCPS had decided that “this is the hill we’re going to die on.” Justice Alito similarly asked what the “big deal” was about allowing parents to opt out. Even Justice Kagan said she suspected there were “a lot of non-religious parents who weren’t all that thrilled about this.” By the end of the argument, it seemed clear that a strong majority of the Court was disposed to rule in the parents’ favor.
Individualized opt-outs are a common-sense way to respect the religious-liberty interests of objecting parents. It’s noteworthy that the parents haven’t challenged the curriculum itself or the presence of the books on classroom shelves or in the library. That is why a number of national commentators and even the Washington Post editorial board said MCPS’s position made little sense.
But if the bottom-line resolution of the case seems obvious, how the Court gets there will be of vital importance. As I see it, there are two significant decision points that remain. One is what Free Exercise Clause theory of liability to use. The Court can choose between ruling on the basis of Wisconsin v. Yoder—a case where it ruled in favor of the Amish based on the right of parents to direct their children’s religious upbringing—or of Employment Division v. Smith, which sets forth a broader Free Exercise standard based on lack of neutrality and general applicability. Yoder is an exception to Smith, so the two cases really represent two separate tracks of Free Exercise jurisprudence.
The oral argument indicated that most of the justices in the presumptive majority were leaning towards deciding the case based on Yoder. That approach would emphasize the special protections that the First Amendment provides for parental rights to control the religious upbringing of their children. By contrast, the Smith neutrality standard could be manipulated on remand by the obviously hostile MCPS leadership, which could tweak the rules slightly and then claim that they have become neutral. Yoder creates more of a focus on the religious burden imposed on the parents than on what MCPS says it is doing, so the Free Exercise protection would be more enduring.
The other remaining question is whether the Court should instruct the lower courts to enter a preliminary injunction for the parents. MCPS has asked the Court not to rule on its strict-scrutiny defense and instead let the Fourth Circuit or Maryland district court take a first crack at deciding whether MCPS’s interests in administrability or promoting gender-inclusivity instruction are compelling enough to outweigh the parents’ First Amendment rights. The Court should reject the idea. If MCPS didn’t put enough evidence in the record, that is its own fault, and it will have the chance to do so before trial. More importantly, requiring a preliminary injunction on remand would protect the parents’ rights while the case continues in district court. That’s exactly what the Court did in similar cases like Carson v. Makin and Fulton v. City of Philadelphia, and it is the right thing to do here.
This case is another example of left-wing culture warriors who aggressively go after religious families with the power of government and then act shocked and disappointed when there is a legal and popular backlash. Let’s hope that a well-deserved loss leads these culture warriors to stop their bullying.