The Principle Beneath Mahmoud v. Taylor

UPDATE:

In a recent 6-3 decision in Mahmoud v. Taylor,the Supreme Court ruled that public schools violate parents' First Amendment Free Exercise rights when they require elementary students to participate in or be exposed to instruction on gender and sexuality that conflicts with their religious beliefs without offering an opt-out.

Key Details of the Ruling:

• Parental Rights: The Court determined that a Maryland school district's refusal to allow parents to opt their children out of LGBTQ-themed storybooks placed an unconstitutional burden on their religious upbringing.
• Notice & Opt-Out Requirements: Schools must now provide advance notice to parents when addressing sensitive topics related to gender, sexuality, or moral belief systems, and they must allow students to opt out without penalty.
• State & Local Impact: States and school districts nationwide have been updating their curriculum transparency and accommodation policies in response to the ruling.

Montgomery County, Maryland, is not the textbook conservative county. With 11% employed by the federal government and another 9% by local government, its demographic suggest rather the opposite- as does its proximity to Washington DC. Still out of that county comes Mahmoud v. Taylor, another case that recently received a decision from the Supreme Court, and the argument that parents can actually choose to withdraw their children from “instruction that includes LGBTQ+ themes.” Thankfully, the Supreme Court made the right decision- but we shouldn’t stop here.

Now, the verdict here isn’t final. The Supreme Court granted a preliminary injunction, a decision granting the parents the ability to opt out pending the actual decision on the case. Preliminary injunctions are supposed to be granted only if the court granting believes the party asking for the injunction has a plausible case and will suffer irreparable harm without the injunction. As Alito states, “… we conclude that the parents are likely to succeed in their challenge to the Board’s policies” (Page 8 (All page numbers refer to PDF linked)). This doesn’t guarantee victory for the party seeking injunction. It just means the Supreme Court thinks the case has a good chance in front of a fair judge (which the case may not get, this being Maryland, a very liberal jurisdiction).

Justice Alito writes the majority decision of the court, and he introduces the principle of their decision straightforwardly: “A government burdens the religious exercise of parents when it requires them to submit their children to instruction that poses ‘a very real threat of undermining’ the religious beliefs and practices that the parents wish to instill” (Page 7). He points to several books in the school library, quoting one discussion guide which states that “’Kate prefers the pronouns they/their/them’” and asks “‘What pronouns fit you best?’” (Page 11).

Even in a county directly bordering DC, such works proved less than popular with parents. “‘According to one MCPS official, the Board decided to change its policy because, among other things, ‘individual principals and teachers could not accommodate the growing number of opt out requests without causing significant disruptions to the classroom environment’” (Page 15). Thus the lawsuit, a response to the school board’s refusal of opt-outs. The court is right in saying that “the parents have shown that they are entitled to a preliminary injunction” (Page 7), certainly morally so.

I want to direct your eye past this undoubtedly encouraging decision. We must look at the principles underlying it. Alito states, “We acknowledge that ‘courts are not school boards or legislatures, and are ill-equipped to determine the ‘necessity’ of discrete aspects of a State’s program of compulsory education’” (Page 46). So far so good, but it contains an implication that the state has a right to engage in compulsory education. He does not contrast the courts’ capacity with the right and capacity of parents to decide how their children are raised; he contrasts it with the rights and capacity of school boards and legislatures.

He continues, “It must be emphasized that what the parents seek here is not the right to micromanage the public school curriculum, but rather to have their children opt out of a particular educational requirement that burdens their well-established right…” (Page 46).  In other words, parents have some role in education, but only in specific circumstances. Unless they can allege that “‘very real threat of undermining’ the religious believes and practices that the parents wish to instill” (Page 7), parents have little say in the process.

Justice Sotomayor has a much stronger statement on the matter: “The Court, in effect, constitutionalizes a parental veto power over curricular choices long left to the democratic process and local administrators” (Page 108). Her position is the liberal position, of course. On pretext of democracy, despite a reality of bureaucracy and manipulated decisions, the government has the right and the power to decide what children will learn. Parents are to be locked out of the process. The government, after all, can’t trust that the parents will expose their children to “new ideas” (as Sotomayor puts it), ideas like self-castration and sexual perversion. The government must be careful to teach “not the teachings of  a particular faith,” which Christian parents might be liable to do, “but a range of concepts and views that reflect our entire society” (Page 108). Should children be taught the entirety of our modern society’s views? Any conscientious parent will recoil from the thought.

Many parents find these ideas repulsive. Of course parents are supposed to teach their children. Of course parents are supposed to pass their faith down to their offspring, so that “My Spirit that is upon you, and My words that I have put in your mouth, shall not depart out of your mouth, or out of the mouth of your offspring, or out of the mouth of your children's offspring… from this time forth and forevermore” (Is. 59:21). Even the Muslims and other non-Christians responsible for bringing suit in Mahmoud v. Taylor can recognize this (Matt. 7:11).

We must recognize, however, that “the very essence of public education” (Page 108) is this tyranny, this grasping after power. Justice Alito and his colleagues, however conservative, hold to the basic principle Sotomayor relies on: government’s right to control your children’s education. Alito limits this right. He holds religion apart. He accepts the basic premise of governmental interference and control, however, and in accepting that premise he gives up the entire argument. If the government has the right to decide what children learn, and parents have at most the right to opt out of particularly egregious choices, if even the education parents give at home is subject to governmental oversight (Page 9), then the ground has been ceded already. The question is how long it will take for the government to finish establishing its control over that ground. Here the court’s decision is helpful, slowing that takeover, but the principle still remains: the government, not you, will raise your children.

God bless.

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