SCOTUS Seems Likely To Allow Parental Right to Opt Kids Out of “Gender and Sexuality” Instruction

SCOTUS Seems Likely To Allow Parental Right to Opt Kids Out of “Gender and Sexuality” Instruction

You may recall that in early March, the Legal Insurrection Foundation (LIF) filed an amicus curiae, or “friend-of-the-court”, brief with the U.S. Supreme Court in a case filed by parents’ with religious objections over the Montgomery, Maryland school district’s refusal to let them opt their kids out of really heinous “gender and sexuality” curriculum — for kids as young as 3-4 years old:

• Brief Supporting Parental Right to Opt Kids Out of “Gender and Sexuality” Instruction Filed by Legal Insurrection:

This case concerns the Montgomery County School District, the largest in Maryland, and whether they should be able to prevent parents from opting their kids, as young as 3-4 years old, out of school curriculum describing, among other things, drag queens, gay sex, and other topics including transgenderism. After a group of parents sued, the case made its way to the U.S. Fourth Circuit Court of Appeals, which covers Maryland, Virginia and West Virginia, and the Carolinas. That court said no. No opt-outs.

So several parents applied to the U.S. Supreme Court, and on January 17, 2025, the Court decided to review the case.

This case was a bit unusual for us for two reasons. First, the Equal Protection Project (EPP) has filed most of our recent “amicus” briefs, but we thought since this case didn’t involve any kind of racial or sex discrimination, but was still a very important case, that we would file it under the LIF, rather than the EPP banner. Second, LIF’s amicus brief was authored by Attorney Eric A. Hudson of the Terrazas PLLC law firm in Austin, Texas, pro bono, rather than in house, and Eric just did a fantastic job with the brief, which you can review here.

Anyway, the “Question Presented” in the case, or, in other words, the exact legal question the Supreme Court has to decide is:

Do public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out?

If a majority of the Supreme Court answers that question yes, then that means the Montgomery County School Board is currently violating parents’ First Amendment “Free Exercise of Religion” rights and the Board will have to allow opt-outs.

LIF, in the amicus brief, first explained LIF’s interest in this case:

Legal Insurrection Foundation (LIF), whose tagline is “Liberty, Equality, Family,” is a Rhode Island tax-exempt not-for-profit corporation devoted, among other things, to advancing the liberty interests of American citizens, including the rights of parents to direct the upbringing of their children…

At bottom, LIF has long documented citizens’ struggles for religious liberty, free expression and racial discrimination, and has long held a deep and abiding interest in ensuring religious freedom for all citizens of all faiths and parents’ rights to raise their children in the religion of their choice. While LIF supports Petitioner’s arguments, it submits this amicus brief to highlight the fundamental constitutional nature of parental rights, this Court’s established recognition of the unique vulnerability of youth in matters of religious liberty, and the unconstitutional Hobson’s choice imposed by the Board.

LIF’s brief then made the following three key arguments:

First:

The decision below conflicts with this Court’s precedent, allowing the government to coerce parents into choosing between their children’s right to a public education and their right to raise them as observant religious citizens. But parental authority over a child’s upbringing is a fundamental liberty, deeply rooted in this Nation’s history. For over a century, this Court has affirmed that parents—not the State—hold primary authority in the care, custody, and education of their children.

This principle is settled law…The Fourth Circuit disregarded this settled precedent. By trivializing parental concerns in deference to state imposed curricula, the lower court undermined “the private realm of family life which the state cannot enter.” This Court must reaffirm that parental authority over their children’s moral and religious development is paramount.

Second:

[C]ompelling young children to participate in classroom activities that contradict their family’s religious beliefs violates the Free Exercise Clause. What may be exposure for adults is indoctrination for impressionable children. Petitioners’ children are elementary-school age—an age when authority figures heavily shape beliefs. Coercing them to accept, or at minimum, refrain from dissenting against, state-imposed moral views pressures them to abandon their faith. The State has no authority to override parents in shaping their children’s worldview on profound moral questions. The Free Exercise Clause prohibits not only bans on religious worship but also government actions that burden religious upbringing. Here, the burden is clear: the Board’s curriculum signals to children that their family’s religious beliefs are invalid or, at best, no more valid than their opposites. Courts have rightly recognized this as coercive. The same holds true here. The Board’s forced curriculum violates Petitioners’ religious exercise.

Third:

[T]he Board’s policy is coercive in another way: it forces religious parents to choose between their faith and a public benefit—access to public education. Decades of Free Exercise jurisprudence confirm that the government may not condition public benefits on the surrender of religious rights. Here, the benefit is a fundamental right—public education, an essential service supported by taxpayers and legally mandated for all children. The Board conditions full enjoyment of that benefit on submission to state-imposed instruction that violates religious convictions. Devout parents who cannot, in good conscience, expose their children to such teachings must either withdraw from public schools—bearing the financial burdens of private or home education—or face truancy penalties. The Free Exercise Clause prohibits such coercion.

This Court has long held that government cannot force citizens to choose between their religious beliefs and receiving a government benefit. That principle controls here. The Board’s policy excludes religious families from public schooling unless they submit to ideologically charged curricula.

[citations omitted; emphasis added]

So, on Tuesday morning at 10 a.m., the U.S. Supreme Court heard oral argument in the case.

Interestingly, the Trump Administration’s Solicitor General not only filed an own amicus brief supporting the parents, Acting Solicitor General Sarah M. Harris filed a motion to participate in oral argument — an interesting motion in its own right and available for review here:

The United States has filed a brief as amicus curiae supporting petitioners — arguing that the Board’s policy has burdened petitioners’ religious exercise — and requests that the United States be allowed ten minutes of argument time. Petitioners [i.e. the parents] have agreed to an allocation of ten minutes of argument time to the United States and therefore consent to this motion.

The United States has a substantial interest in this case. As a general matter, the United States has a substantial interest in the preservation of the federal constitutional right of free exercise of religion…Participation by the United States could therefore materially assist this Court in its consideration of this case.

On Friday, April 17, the Supreme Court posted this to the case docket:

Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED.

The oral argument seemed to go fairly well for the parents.

From Deseret News: What the Supreme Court said Tuesday about LGBTQ rights, public schools and a children’s book on same-sex marriage:

Mahmoud v. Taylor stems from a conflict between the Montgomery County Board of Education in Maryland and a group of Muslim, Jewish and Christian parents with kids in some of the district’s elementary schools.

The parents filed the lawsuit after school officials took away the option of opting out of its inclusive storybook program. Parents say opt outs are required by the First Amendment’s free exercise clause since classroom discussions on LGBTQ issues interfere with the religious messages they’re seeking to pass on to their kids.

School officials reject that claim, arguing that families don’t have a First Amendment right to avoid stories with LGBTQ characters. The goal of books like “Uncle Bobby’s Wedding” is to encourage respect for one’s neighbor, not to influence readers’ beliefs about marriage, they say…

Three words came up again and again during Tuesday’s debate: coercion, exposure and burden.

All three were used as the justices attempted to sort out whether the storybooks actually interfere with parents’ religious freedom rights or if, instead, the parents are being too sensitive about references to LGBTQ issues.

The court’s three more liberal justices repeatedly challenged the parents’ interpretation of past rulings on the First Amendment, arguing that hearing stories about gay or transgender characters is quite different than being coerced into changing your beliefs…

By comparison, the more conservative justices seemed much more willing to see the storybook program as a burden on the free exercise of religion. They pushed the attorney for the school district to explain why the option of opting out is now off the table…

Although it was only briefly discussed on Tuesday, the justices will be wrestling with the school district’s attitude toward religious families as they put together the ruling in the case, which is expected by early July.

Baxter said some school board members made unacceptable, anti-religious comments when they faced pushback over the storybook program, the kind of comments that often come up when someone raises religious freedom concerns about policies on LGBTQ rights.

“The board accused them of using their religious beliefs as a reason to hate,” Baxter said.

Schoenfeld acknowledged that some “intemperate” language was used, although he said the comments came after the opt out policy was changed.

The justices’ views on the comments — and beliefs about when they were made — may end up being significant.

[emphasis added]

We will update you when the case is decided.

In the meantime:

SCOTUS is hearing Mahmoud v. Taylor to decide if schools can force kids to read explicit content.

While the lead plaintiffs are Muslim parents suing on behalf of their Islamic faith, this affects families of all types.

No parent should be shut out for saying no to lewd content. pic.twitter.com/Bqs9MWG271

— Gays Against Groomers (@againstgrmrs) April 22, 2025

NOW: The Supreme Court is hearing oral arguments in Mahmoud v. Taylor, which considers whether religious parents can opt their young children out of mandatory readings of LGBTQ storybooks.

This is one of the books in the case, “What Are Your Words?”

“My pronouns are like the… pic.twitter.com/4XffL7iMCp

— Katelynn Richardson (@katesrichardson) April 22, 2025

“This was clearly targeted at religious parents.”

Eric Baxter, Attorney for Mahmoud in Mahmoud v. Taylor, explains to SCOTUS how Montgomery County Public Schools methodically attacked and undermined the rights of religious parents to decide what their children can be taught. pic.twitter.com/DSFFW0aikm

— Nicki Neily (@nickineily) April 22, 2025

Randi Weingarten admits she wouldn't read the books parents want to opt their children out of in Mahmoud v. Taylor: "These are not the books I would be reading as a classroom teacher to kids who kids who are four and six years old."

Oral arguments for the case were heard at the… pic.twitter.com/7ZKEpknQyU

— Kendall Tietz (@kendall_tietz) April 22, 2025

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