What The Hell America!

In one children’s book, a family dog gets lost at a Pride parade. In another on intersectional feminism, a young girl talks about using a wheelchair, while her friend wears a hijab in ballet class. A child who uses multiple pronouns, like she/her and they/them, talks about their gender expression in a different story. 

These books, among others written and illustrated for children, are at the center of an upcoming Supreme Court case. They are being challenged by Maryland parents who say their elementary-age children are being compelled by the Montgomery County Board of Education to learn about gender and sexuality against their religious beliefs. These parents aren’t challenging school curriculum or asking for books to be banned. But since they can no longer opt their kids out of reading these books, they are asking the Supreme Court to intervene. 

Oral arguments for the case, Mahmoud v. Taylor, take place on Tuesday. If the Supreme Court sides with the plaintiffs, experts say that it could have far-reaching effects in education — fostering a culture of pervasive censorship and eroding church-state separation in classrooms since schools cannot accommodate persistent requests to opt students out of instruction. Parents of faith would be given unilateral power to restrict reading materials, classroom discussions and school activities, purely on religious grounds. By doing so, these parents would infringe on the rights of individuals who don’t share their beliefs and stigmatize students from LGBTQ+ families or other groups their religions target.

The Supreme Court is considering this case as states in recent years have increasingly attempted to inject religion into education. States including Louisiana, Oklahoma and Texas have introduced policies to require schools to post the Ten Commandments in classrooms, buy Bibles for all students or include religious stories in the curriculum. These efforts coincide with the White House taking aim at schools and other institutions for promoting “gender ideology” — the point of tension in Mahmoud v. Taylor.  

How could this case impact the future of public education? And what are different religious groups saying? The 19th explains the nuances of this case here.

What is this case about? 

A group of Maryland parents are suing on the grounds that their First Amendment right to freely exercise religion is being violated. They also contend that their parental rights are being trampled — an idea foundational to statehouse bills introduced across the country to stop schools from teaching divisive concepts. Florida’s Parental Rights in Education Act, nicknamed the “Don’t Say Gay” law, is perhaps the most well-known example. That law banned the instruction of sexual orientation and gender identity from kindergarten to third grade — and later, the law was expanded through 12th grade.

The parents named in the lawsuit come from different faiths — Islam, Roman Catholicism and the Ukrainian Orthodox Church — but they all share one concern: that these picture books will confuse their children about what gender and sexuality mean in their respective religions. The parents worry that reading these stories will keep their children from embracing their “biological sex” or cause them to conflate gender identity with sex assigned at birth. 

The fact that the parents did not ask for the books to be banned but for their children to be opted out of instruction still constitutes censorship, according to Tasslyn Magnusson, senior advisor for the Freedom to Read program at PEN America, a nonprofit that fights to protect free expression. The Freedom to Read team documents censorship in K-12 schools through reduction or removal of access to materials.  

“What these parents are doing is basically asking teachers to manage the fact that they don’t want their children to encounter these books ever, and so that is a ban, because those books will not be able to be in that classroom, or we’re going to be pulling kids in and out of classrooms, whether it’s in this district or other districts that will see this case and respond with fear. We’re going to see no more LGBTQ voices in these schools because they won’t be able to manage that.” 

Multiple religious groups oppose the parents’ lawsuit. In a friend of the court brief, Montgomery County faith leaders and parents write that these petitioners “seek to wield the First Amendment to curtail students’ exposure to ideas in the classroom.” In another, groups including the Alliance of Baptists, a Jewish Partnership for Justice and Muslims for Progressive Values argue that the Montgomery County public school curriculum does not coerce parents or their children to act contrary to their religious views, directly or indirectly. 

Allowing students to opt out of certain books would harm religious freedom, those faith groups say. They argue that it would undermine public schools’ ability to foster tolerance, stigmatize children who are not opted out, divide students along religious lines and force schools to tailor their curricula to the religious views of some parents. 

How did we get here? 

For the 2022-2023 school year, the Montgomery County Board of Education introduced LGBTQ-inclusive storybooks for elementary school students in its language-arts curriculum. These books were not used in any lessons related to gender and sexuality, the board says, and students were not asked to change their views on LGBTQ+ identities by reading them. Throughout most of that year, parents were able to opt their children out of reading these books, which were available for individual reading and classroom read-alouds. 

But the lawsuit rests on a decision made in March 2023. In response to growing outcry from parents, the board mandated that in the new school year, no opt-outs from instruction using the storybooks would be granted “for any reason.” Excusing more and more students when the books were read in class led to absenteeism concerns and was becoming unfeasible on a practical level. What’s more, the board worried about stigmatizing students who saw themselves in the LGBTQ-inclusive books. 

In response, parents sued. A district court denied them a preliminary injunction, saying that they failed to demonstrate a clear burden to their religious freedom. The U.S. Court of Appeals for the Fourth Circuit affirmed that decision. Now, the Supreme Court has agreed to step in. 

These Maryland parents are represented by the Becket Fund for Religious Liberty, a conservative legal group known for winning the 2014 case that allowed Hobby Lobby to deny full contraceptive coverage to its female employees. As part of this legal fight, Becket has invoked a phrase often repeated by the Trump White House as it attempts to curtail rights for transgender Americans: “gender ideology.”

“Cramming down controversial gender ideology on 3-year-olds without their parents’ permission is an affront to our nation’s traditions, parental rights and basic human decency,” Eric Baxter, vice president and senior counsel at Becket Fund for Religious Liberty, said in January.  “The Court must make clear: parents, not the state, should be the ones deciding how and when to introduce their children to sensitive issues about gender and sexuality.”

That same outcry has been a foundational part of state efforts to challenge schools over curricula or books that deal with LGBTQ+ topics, as well as Republican-led attempts to restrict the teaching of critical race theory and Black history. PEN America has documented almost 16,000 instances of book bans since 2021. The censorship followed an executive order Trump issued in September 2020 “to combat offensive and anti-American race and sex stereotyping and scapegoating” and the teaching of “divisive concepts” related to racism and sexism in the federal workforce. The order saw states across the country introduce legislation using similar language to censor books and lessons about race or sex in schools. According to Eileen Hershenov, PEN America’s chief legal officer and deputy CEO, 30 percent of recent bans have targeted books with LGBTQ+ themes or characters. 

While bans have come through parent outcry or decisions made at varying levels of government, “increasingly we see one area by which books are being challenged, and that is free exercise of religion. Basically it’s the same books, and it all comes down to disfavored ideas and viewpoints, but it’s a potentially potent argument to say, ‘Wait a minute, there’s a constitutional right at issue.’” 

The First Amendment’s free exercise clause grants the right to religious freedom, but Hershenov said the public can’t argue that something constitutes a First Amendment burden simply because they disagree with it on religious grounds.

Kelly Parry-Johnson, senior staff attorney for the nonprofit Advocates for Trans Equality (A4TE), said that, on a societal level, this case represents the belief that religion and LGBTQIA+ inclusion are at odds with one another. But from her organization’s perspective, this isn’t true. A4TE filed an amicus brief for this case on behalf of LGBTQ+ Muslims, who say that their faith does not have a monolithic stance on gender and sexuality. 

“Too often, trans and queer Muslims and other members of religious minorities are really left out of these discussions of religious liberty,” she said. “For our clients, acceptance of gender and sexual diversity and a commitment to justice for every single person, including LGBTQI+ people, are core religious beliefs and practices.” 

What’s at stake? 

Attorneys and experts worry that a Supreme Court ruling siding with the Maryland parents in this case could lead to a “snowball effect” that would weaken the country’s ability to operate its public education system. 

“If the opt-out is mandated, it’s going to effectively mean that the books will be taken out of the curriculum for all students, and this would grant religious objectors a heckler’s veto over the language arts curriculum and open the door to other such vetoes,” said Rachel Laser, president and CEO of Americans United for Separation of Church and State, a nonpartisan advocacy organization. “Like next, will it be vetoing teaching about evolution instead of creationism?” 

Magnusson said that allowing these parents to opt their children out of instruction will have a chilling effect that amounts to a gag order because classrooms can’t function efficiently amid ongoing opt-out requests. To avoid getting into trouble, teachers will preemptively remove materials they suspect might lead to objections. She cites Iowa, which passed a law in 2023 prohibiting the inclusion of books with so-called sexual content in K-12 school libraries, as a case in point. After the policy, which a court recently struck down, took effect, “Some districts pulled all the books, including art books that might have naked bodies in them,” she said.

Other districts pulled nothing, leading to an uneven application of the law. 

 “The real story will be the loss for readers who could enjoy these picture books,” Magnusson said of Mahmoud v. Taylor’s potential outcome. 

“I think it’s worth saying these books are not really about sexual identity,” she continued. “They’re not coming out stories. They’re stories about common experiences that kids have, learning how to talk to people, if it’s the ‘What Are Your Words?’ book. Learning that two dads can get married, but everybody loves a wedding, and learning also about crushes. ‘Love, Violet’ is such a beautiful little book. The fact that it’s a little girl who has a crush on another girl is one aspect of the story, but it’s about a universal feeling of being young and having a crush on a classmate.”

A win for the plaintiffs in this case, Laser said, would also conflict with the First Amendment’s free exercise clause, a point Americans United emphasized in its “friend of the court” brief.  

“Religious freedom does not apply to government actions that are secular and merely offend religious beliefs,” Laser said, citing 1986’s Bowen v. Roy. “That is part of living in a pluralistic democracy. Public schools play a vital role in fostering acceptance and preparing students for a life in a diverse society. So allowing opt outs would undermine that acceptance and stigmatize students who remain in class. It basically takes what some, and not all, religious parents believe in and imposes that on all other families from different belief systems and backgrounds, and that’s not OK.”

In fact, Laser said, that is a religious shaping of public education that violates church-state separation. 

What happens after oral arguments? 

After oral arguments conclude on Tuesday, the justices will meet to decide the case and write the opinion of the court — typically accompanied by a dissenting opinion. The Supreme Court is expected to issue that ruling in June. Given how the court, which has had a 6-3 conservative majority since 2020, has decided other cases involving religion, Laser is not hopeful that the school district will emerge the victor in Mahmoud v. Taylor. 

“The [Justice John] Roberts court has ruled on the side of the religious plaintiffs over 85 percent of the time, so the odds are with the religious plaintiffs here, even though I’d like to point out that we have worked with a diverse coalition of Christian, Jewish and non-Abrahamic faiths who oppose the opt out,” Laser said. “So I don’t want to concede that the plaintiffs in this case are on the side of ‘religion.’​ But that said, because they are before the court representing a request for a religious right of refusal, we can look to the Roberts court record of ruling repeatedly, and in most cases, in support of the religious plaintiff.”

Although the lead plaintiff in this case is a practicing Muslim, Laser said that a win for the parents in this case will largely benefit Christians, specifically White Christian nationalists.

“This creates a scenario that advances a political agenda that entrenches the traditional power structures into our public schools,” she said. “It’s part of a larger effort by religious extremists to indoctrinate a new generation of Americans in their philosophy, and their philosophy is un-American because it supports the idea that America was intended for White Christians, and advances the conservative agenda of keeping power with White Christian straight, cisgender men in our society.”