S6, Ep. 15: Religious objections and curriculum opt-outs: Oral arguments in Mahmoud v. Taylor

A case with a thin record is raising plenty of questions at the Supreme Court. In this episode, Amanda and Holly examine the case of Mahmoud v. Taylor, which involves parents who want to opt their children out of public school curriculum they say conflicts with their religious beliefs. But, what’s the difference between expected exposure and unconstitutional coercion? Does age matter? What happens when opt-out options become too burdensome and overwhelming to accommodate? Amanda and Holly examine the issues in this case as well as the challenges for the school district and for the parents. They also share what the oral arguments revealed about the justices’ interest in the books and discussions outside of the courtroom.  

SHOW NOTES

Segment 1 (starting at 01:50): Remembering Justice David Souter

Amanda and Holly released a live mini-episode on Tuesday, May 27, to review the Supreme Court decision in the religious charter school case, the voucher proposal in the budget reconciliation bill, and a court decision halting the dismantling of the Department of Education. Hear the episode at this link or in your podcast feed, or watch it on YouTube.

Amanda and Holly mention the other two church-state cases this term addressed in previous episodes:

• Catholic Charities Bureau v. Wisconsin in Ep. 12: Back to SCOTUS: Regular business in disturbing times
• Oklahoma Statewide Charter School Board, et al. v. Drummond in Ep. 14: The blockbuster SCOTUS case over religious charter schools

BJC Executive Director Emeritus J. Brent Walker wrote a reflection piece on Justice David Souter when the justice retired in 2009: Walker reflects on Souter’s Supreme Court tenure

Amy Howe wrote a piece on Justice Souter for SCOTUSblog: David Souter, retired Supreme Court justice, dies at 85

Segment 2 (starting at 06:58): The facts (that we know) in the case and what’s at stake

BJC has a post on our website describing Mahmoud v. Taylor: In oral argument, U.S. Supreme Court wrestles with the limits of public school parents’ opt-out rights

The U.S. Supreme Court has a transcript of oral arguments and the audio recording of oral arguments in Mahmoud v. Taylor available on its website.

 

Segment 3 (starting 25:54): The two big substantive points from the oral argument

We played two clips from the oral argument in this segment:

• Justice Elena Kagan and Eric Baxter, who argued on behalf of the group of parents (the petitioners) 
• Justice Samuel Alito and Eric Baxter

Amanda and Holly talked about the Texas Bible curriculum in episode 2 of this season: Oklahoma and Texas try to force Bible teaching in public schools

Respecting Religion is made possible by BJC’s generous donors. Your gift to BJC is tax-deductible, and you can support these conversations with a gift to BJC.

 

Transcript: Season 6, Episode 15: Religious objections and curriculum opt-outs: Oral arguments in Mahmoud v. Taylor (some parts of this transcript have been edited for clarity)

 

HOLLY: Hello, Respecting Religion listeners. It’s Holly Hollman. We want to take a moment to note a few news items that took place after we recorded today’s podcast. On Tuesday, Amanda and I went live on BJC’s social media channels to talk about three things that happened on May 22.

First, the House of Representatives passed a budget bill that contains a troubling school voucher program. The bill is now in the hands of the U.S. Senate.

Then the U.S. Supreme Court released its decision in the religious charter school case. And thankfully, their tie vote leaves the Oklahoma Supreme Court’s decision in place. That decision found the proposed religious charter school unconstitutional.

And on that very same day, a judge issued an order that blocks President Trump’s efforts to dismantle the Department of Education. All of these items impact religious liberty, and we gave our quick reactions to each of them during our live conversation, which we also released as a podcast in this same podcast feed.

So check out that episode — we’ll also link to it in our show notes. And now here’s today’s show, focusing on a different case dealing with religion and the public schools at the Supreme Court.

 

[MUSIC]

AMANDA: At what point do justices of the federal judiciary at any level — but particularly when you get to the highest court in the land — are they substituting themselves as a kind of uber school board?

Segment 1: Remembering Justice David Souter (starting at 01:50)

AMANDA: Welcome to Respecting Religion, a BJC podcast series where we look at religion, the law, and what’s at stake for faith freedom today. I’m Amanda Tyler, executive director of BJC.

HOLLY: And I’m general counsel Holly Hollman. Today we’re back to talk about another church-state case at the Supreme Court that they heard recently. It’s a case that addresses claims of parents to opt out of public school curriculum that they find is in conflict with their religious beliefs.

AMANDA: Hi, Holly. Good to be back.

HOLLY: Nice to see you again.

AMANDA: So this case comes to the Supreme Court out of the state of Maryland. It’s called Mahmoud v. Taylor, and it is one of three church-state cases the Supreme Court is hearing this term. We talked about the blockbuster case of Oklahoma Statewide Charter School Board, et al. v. Drummond, which is about government funding of religious charter schools. And earlier in April, we took a look at a more technical church-state case, the Catholic Charities-Wisconsin case.

But we did want to circle back and cover this particular case. Before we get into that, though, Holly, we did want to mark on Respecting Religion that Associate Justice David Souter, who served on the Court from 1990 to 2009, passed away on May 8, 2025, and we both worked at BJC at times when Justice Souter was on the Court and are familiar with his writing in this particular area of the law and wanted to mark his passing here on the podcast.

HOLLY: Yeah. He was known for his seriousness as a person, both personally and as well as on the Court, and a practical approach in how he addressed cases. That was particularly shown in a couple of church-state cases that are important to us, including the McCreary County, Kentucky, case, one of the Ten Commandments cases back from 2004, where the Court struck a display of the Ten Commandments, and the evidence was so clear that the lawmakers in that case were trying their hardest to promote a very specific Christian perspective and message.

It was kind of a laughable case in the way the facts kept changing in order to hide their intent, but that opinion stands for the idea that the Court doesn’t have to turn a blind eye to something that’s very apparent.

I also would note his concurring opinion in Lee v. Weisman, the graduation prayer case, where in his concurrence, he really demonstrates a textualist approach to judicial interpretation and a historical approach, and cites some important law review articles and demonstrates the Founders’ work in the area of developing the Establishment Clause, and really proves, I think, that the Establishment Clause means something more than just nonpreferentialism.

He also was big on saying that it meant more than simply coercion, and that’s something that, I think, law students continue to read as they learn about the First Amendment and the varying approaches to what the religion clauses mean. So I wanted to at least mention that important contribution.

And, you know, as I looked back at the McCreary County, Kentucky v. ACLU case, I was struck by this line, Amanda, and I think you’d agree with me that it is very apt today as well — maybe doubly so. But he said, quote, “We are centuries away from the St. Bartholomew’s Day massacre and the treatment of heretics in early Massachusetts, but the divisiveness of religion in current public life is inescapable. This is no time to deny the prudence of understanding the Establishment Clause to require the government to stay neutral on religious belief, which is reserved for the conscience of the individual.”

AMANDA: That’s a really powerful statement from Justice Souter and one that I hope the current justices on the Court might go back and revisit as well. You know, we talked last week in the Drummond case about how the Court just didn’t seem all that interested in the Establishment Clause in a case that we felt the Establishment Clause was really crucial to the outcome.

And I’m also struck here in both the examples you give of how Justice Souter was appealing to history in those cases. So if these justices really want to understand history and the Establishment Clause, Justice Souter was a couple of decades ahead of them on that. And [as we] look forward and hope that his writings, as they outlive his life, might have an impact on this Court and on Courts to come.

HOLLY: Former executive director of BJC Brent Walker wrote a nice column, summarizing Souter’s contributions to church-state law back when Justice Souter retired, and we’ll put a link to that in the show notes, along with the Amy Howe article that gives tribute to Justice Souter in SCOTUSblog.

 

 

Segment 2: The facts (that we know) in the case and what’s at stake (starting at 06:58)

AMANDA: So let’s talk about Mahmoud v. Taylor. The case name is named for the group of parents that are suing on behalf of themselves and their minor children against Thomas W. Taylor in his official capacity as superintendent of Montgomery County Schools. Again, that’s in Maryland, right outside of Washington, D.C., and it’s one of the country’s largest school districts. The Supreme Court heard oral arguments in this case on April 22.

HOLLY: Yeah. This is a school district that’s very familiar to us, Amanda. I’m sure you have friends, as I do, that live on the Maryland side of the DMV and send their kids to public schools there, and that was kind of an interesting added flavor to the oral arguments in that we had Justice Kavanaugh later on mention that that’s where his kids went to school.

And we’ve noted this case before. It is not a case that BJC filed a brief in. BJC promotes religious freedom for all, and where we can make a difference and add value to a case, we like to be able to come in and file an amicus brief. This is one that we looked at that we were very interested in.

And as we talked about it earlier, it has interest broadly on both sides, and that is the interests of parents and individuals to exercise their religion by at times asking for exceptions to a rule, and at the same time, it has state interest about fairness and equality and inclusiveness and administrability.

So with that, let’s talk a little bit about how this case got to the High Court. We were concerned about this going up to the High Court, because of the context — not only how heated things can get when you’re talking about public schools, but also when you’re talking about inclusivity and the rights of minorities, in this case, LGBTQ rights, the right, you know, to be seen and included in the curriculum.

And, we were concerned that the parties couldn’t work this out and find a solution. And, you know, we have some concern, instead, that this case could inflame the culture wars instead of being a vehicle for communities to find a way to accommodate these interests and provide quality education and make sure that that is available to all families.

AMANDA: As we described the case on BJC’s website, Mahmoud v. Taylor involves a challenge from parents who object to certain reading curriculum in their children’s elementary school. Again, this elementary school is in Maryland’s Montgomery County School District.

They objected to the reading curriculum and asked for an ability to opt out of their children being part of the lessons in which that reading curriculum was used. Montgomery County first allowed opt-outs and then changed their policy and revoked the ability to opt out.

The Supreme Court granted certiorari to review a decision from the 4th Circuit Court of Appeals in which the appeals court declined the parents’ request for an injunction that would have required the school district to reinstate the opt-out while this court case continued and was pending.

That circuit court from the 4th Circuit, by a two to one vote, ruled against the parents. They emphasized that the record in the case was, quote, “threadbare,” and lacked sufficient evidence that the parents suffered a, quote, “cognizable burden,” end quote, on their religious freedom. The fact that an opt-out from the reading assignments was not available, the court wrote, is not in and of itself enough to satisfy that requirement.

Here’s a quote from the 4th Circuit’s opinion: “Supreme Court precedent in this context requires some sort of direct or indirect pressure to abandon religious beliefs or affirmatively act contrary to those beliefs, and simply hearing about other views does not necessarily exert pressure to believe or act differently than one’s religious faith requires.”

HOLLY: And, Amanda, the trial court, as the appeals court upheld, put it even more directly. They said, quote, “Public schools are not obliged to shield individual students from ideas which potentially are religiously offensive, particularly when the school imposes no requirement that the student violate his or her faith during classroom instruction. With or without an opt-out right, the parents remain free to pursue their sacred obligations to instruct their children in their faiths. Even if the children’s exposure to religiously offensive ideas makes the parents’ efforts less likely to succeed, that does not amount to a government-imposed burden on their religious exercise.”

So that was the clear statement of the lower courts. But despite the thin record on this preliminary injunction, you know, where the parents are saying, We’ve got to stop this rule, the rule that no longer provided the opt-out, this Court granted cert.

AMANDA: And the question presented by the petitioners — that’s the group of parents that are challenging the school district’s decision to not let them opt out — is this: “Whether 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 a notice or opportunity to opt out.”

HOLLY: And the Court recently heard oral arguments, which made quite an impression on the Court. Again, it was very long. I think it was another two-hour or more hearing. And I say it made quite an impression, because as we’ve noted and probably will note again, this case was still on their mind when they heard the charter school case the week later.

To set the stage for oral argument, we should begin with noting who the advocates are in this case. Eric Baxter from the Becket Fund argued on behalf of the petitioners, Mahmoud, et al., and he had an assist from Sarah Harris, the principal deputy solicitor general at the U.S. Department of Justice. And on the other side representing the superintendent and Montgomery County was Alan Schoenfeld of WilmerHale.

Petitioners’ oral argument began this way: “Parents everywhere care about how their young children are taught sexuality and gender identity. That’s why nearly every public school in the country that provides sexuality education requires parental consent first.”

Now, that’s an important and, some would say, a little bit contrary framing of what’s at stake here, and that’s because the curriculum issue was not specifically about sex education in the way that we typically think about that.

So just to go over some of the facts: Montgomery County introduced what they called an LGBTQ-inclusive curriculum, basically storybooks for students in elementary school, with guidance for their teachers, that introduced LGBTQ themes through the introduction of characters and events. Some of the books that were mentioned in oral argument and got a lot of attention in the press were books like Puppy Pride, which is an alphabet book where a little puppy gets lost at a Pride parade and kids read through following the puppy and learning letters of the alphabet.

But there are other books, one called, Intersection Allies, that was described by the petitioners as inviting children to ponder their pronouns and what it means to be transgender or nonbinary. And the one that got a lot of attention during oral argument was Uncle Bobby’s Wedding.

So it was clear that the justices had taken a closer look at this material, and as we had heard leading up to this case and certainly in oral arguments, there was a lot of disagreement about how the books were used or were planned to be used, and really what the perspective was and whether it matched the county’s intent.

AMANDA: I think some of that disagreement came on just the posture that this case came up to the Court. Right? As you’ve noted, it came on application for preliminary injunction. At that stage of the litigation, there have not been all of the discovery and other factual development in the case. And because of that, we didn’t have a lot of record development before the Court, and that did come out some in the oral argument, about what exactly was the harm, how exactly were these books being used, and, you know, there were, I think, some isolated examples that people really pointing to scripts or other information that might be provided to teachers but without a sense that any of those scripts had actually been used.

And so there was some, I think, debate in the argument itself about, well, how much harm do the kids need to be subjected to, again in the eyes of these parents and these petitioners, before they’re allowed to bring a claim? But what happens then when you bring a case like this to the Court with such [a] bare record is that they’re really trying to write a rule without fully understanding what’s at stake in this case, let alone what might be at stake in how this case is applied in other contexts.

HOLLY: And, instead, then, we are just left with a record that has parents from various religious traditions saying that their religion requires certain teachings about gender and need to embrace their biological sex, and they talk about the importance of family and ideas about family and their religion. Some of them talked about their religion requiring a view that gender is unchanging and emphasizing these differences for flourishing. And some said that petitioners have a sacred obligation to shape and safeguard their children’s understanding of gender and sexuality.

And, of course, one could agree with that or could very easily see that interest, and yet not know for sure in this case whether or not that has actually been burdened, because as you said, Amanda, we don’t have a lot of examples about what happened or would happen if the facts had been developed more fully.

AMANDA: Yeah. And what we do have are a couple of these books. And so I think what we saw, instead, were the justices really hone in on the text in the books themselves and engage in some — I don’t know — literary analysis of these storybooks and interpretations. And at one point, Justice Alito even referenced having a conversation off the bench with Justice Sotomayor where they were, you know, kind of discussing different interpretations of Uncle Bobby’s Wedding. It was kind of a surreal moment about how justices might engage and what their off-the-bench reading material might look like.

HOLLY: That’s right. And for our listeners who are curious and don’t have time to go back to the oral arguments to listen about this, Uncle Bobby gets married — as the book, I guess, is called – [] Uncle Bobby’s wedding. And Justice Sotomayor was trying to really ask the advocate for the parents, What is objectionable; just, you know, what is objectionable? It looks like two mice that look very similar, and they’re getting married.

And so even the way she said it, it was like, Is it — you couldn’t even tell if the point was that they are of the same gender. And then Justice Alito picked up on that and really promoted the idea that, no, the message is clear: Uncle Bobby is marrying a man, and his niece Chloe has some questions about that, and her mother has to console her, let her know everything’s okay. And so he really is asserting that the book is not just showing gay characters, but is instead promoting an idea that you should not ever be upset by marriage.

And then later in the argument, I think Justice Sotomayor picked up and said, no — or someone else in reading the book said, no — it was all about Chloe being sad that Uncle Bobby’s not going to have enough time for her, because when people get married to people they love, they tend to spend a lot of time with them. So, anyway, interesting to think about the justices really diving in to the material and the way it could be viewed differently.

And at the very least, that shows a little bit of insight into these materials being something that parents could be very interested in and feel like the school may be promoting, either fairly or unfairly, ideas that are at odds with their beliefs and what they think is appropriate at this age.

AMANDA: And can we just take a quick step back, Holly, because I think that when we think about — and for listeners, when we’re thinking about what’s appropriate, what’s appropriate for these Supreme Court justices? And this came out at one point. You know, at what point do justices of the federal judiciary at any level, but particularly when you get to the highest court in the land, are they substituting themselves as a kind of uber school board? Right?

These are the kinds of conversations and reading of curriculum that we would expect at our local school board — or even at a state board of education — but seems really out of place in a federal courtroom. And I think that was one of these kind of overarching questions that some of the justices raised.

You know, are we substituting our judgment for the political judgment that is appropriately made at the local level about what curriculum is appropriate for kids in our public schools, because we know that education, by and large, is a local enterprise? It’s not something that’s determined at the federal level, including by the U.S. Supreme Court. And so I think some of the discomfort or strangeness of this whole argument was also just, What is the role of the federal judiciary in these kind of curricular decisions?

HOLLY: Yes. And as the Court dealt with that question, we heard argument about how parents should address problems with curriculum and the political process for doing so — that was particularly an important part of the oral advocacy for the attorney representing Montgomery County.

He said that in this case, there was no burden on the parents and all, because this was mere exposure to ideas. It wasn’t promoting an agenda, and it wasn’t forcing anyone to change their beliefs or to agree with any perspective, but that it was consistent with a long line of cases, that mere exposure to different ideas that one has objections to, religious objections to, does not create a Free Exercise right.

And, you know, in this case, Amanda, as I was looking through the briefs on either side, I was particularly struck by a brief that talked about the way local school districts make these decisions and the variety in laws across the country about how curriculum is developed, what oversight there is, how parents can engage in that, and when they provide opt-outs, and that was really the crux of this case: whether or not opt-out was a constitutional right versus something that the school could just administer as it could see fit but was not constitutionally required to do so.

AMANDA: Yeah. And I think from the point of view of Montgomery County, I think that’s the hardest fact for them — right? — is the fact that most school districts, and indeed, their school district, have provided opt-outs in cases like this. They had provided an opt-out, and then they changed their tune and said, no, actually these opt-outs are too difficult for us to administer, so we are now going to say, no opt-outs at all — so [they] really did a 180 on their position, and I think found it very difficult then to defend it.

And so there was some conversation and questioning of the advocate for the school district about really explaining why exactly this was not feasible for them to allow the opt-out. I think this is where the thin record made it difficult for him to develop his argument but also for the other side to really defend why they needed it — and again, seeing again why this probably was premature for the Supreme Court to take this case at this juncture.

HOLLY: Yeah. The facts happened on a really short time frame. I mean, they announced one fall, fall of 2022, that they were going to introduce this new curriculum that promoted inclusivity with the purpose of cultivating an environment where all are accepted and that would have books that highlight LGBTQ communities in the reading class.

And as you noted, there was an opt-out. But they changed it the following March 2023, no longer offering notification that the books would be used in the classroom and the opportunity to opt out. And at oral argument, the school’s perspective, the county’s perspective, was clearly that it became unadministrable. It was too difficult, that they had a lot of opt-outs.

Well, we know that it hadn’t even gone into effect everywhere, but it appeared that in at least a few schools in the county, there were many requests — you know, news stories broke about this curriculum, and people were very interested in it and there was a lot of public engagement, and so there were a lot of requests, and it proved too difficult to accommodate.

That was their perspective, that they didn’t have to do it and they tried it, but it didn’t work. And that seems like a legitimate, non-religious-based reason to change policy, but it also is very difficult when you said that you could do it and then you take something back.

 

 

Segment 3: The two big substantive points from the oral argument (starting at 25:54)

AMANDA: So I think that gets us to the two big substantive points of the argument that we want to focus in on. And there’s a challenge for Montgomery County, and there’s also a challenge for the parents. So the challenge for Montgomery County coming from the justices was really trying to push the school district to admit and recognize that there was a burden here.

The Court seemed unlikely to see no burden at all on the parents, and part of that is because as they were saying, their only recourse if you don’t allow an opt-out is for them to go and get education elsewhere. And that meant paying private school tuition, and that certainly couldn’t be the response, the justices said, that to just say, You have to pay private school tuition if you’re going to get an education in this state that doesn’t conflict with your religion.

HOLLY: Yeah. And, Amanda, that was pretty offensive to Montgomery County, too, and people who are invested in public education, to suggest that they were offering a curriculum that was so offensive, you would have to leave the public schools, as opposed to what we assume happens in public schools where there’s education about different religions and a lot of diversity, and not everything that is presented or taught is done so in a way that is indoctrinating or presents a challenge to the students’ religious beliefs and exercise.

AMANDA: Yeah. So the advocate for the school district was really making the point, Look, Montgomery County has made a curricular decision that they think it’s important in our pluralistic society and in our community to, from a very early age, [to] instill a sense of respect for people from all different kinds of difference.

And so — in this particular — we’re going to respect different family configurations. We’re going to respect same-sex marriages. We’re going to respect different gender identities, and we want, from a very early age, through teaching through these age-appropriate, in their mind — you know, and that’s another debate here, but in their mind, age-appropriate ways, teach basic respect.

They say, We’re not having a normative argument. We’re not saying this is a preferred way of living. We’re just saying, Let’s all respect one another. That’s their perspective.

And so then this is where the point comes up that you teased earlier, Holly. Where’s the line between just exposure to different kinds of people and family configurations — What’s the difference between exposure and coercion? And that very quickly evolved into a conversation about the age of the kids involved here, which is particularly age pre-K, which is three or four years old, to sixth-graders.

HOLLY: And, again, this problem with the record came out in that there was some question about whether the parents would have brought this case if the books had just been on the shelf or had been read by a teacher along with other books, just kind of in the general mix, versus, I guess, a more full implementation that had the teacher engagement the way the guidelines provided.

And, you know, we didn’t have a record that said that, so we had a lot of disputing about how far the parents were pushing, which brings us to the challenge for the parents that the Court pushed back on. The challenge for the parents was to recognize there has to be some kind of limiting principle to what they were arguing was a presumptive right to opt out of any religiously offensive instruction or exposure.

And that was really an issue that the Court got to right away. I think we should play Justice Kagan addressing this at the outset of the case.

 

JUSTICE KAGAN: I guess I’m interested in what the nature of the rule you’re asking for is. I mean, when you started, it was about, you know, matters pertaining to sex. But as you’ve answered some of these questions, you’ve basically said, Well, you know, my clients have religious principles that conflict with what is being taught.

 

And does it go that far? In other words, you know, does it matter what the subject matter is? Does it matter what the age of the child is? Does it matter what the nature of the instruction is? If so, how does it matter? Or in the end, is what you’re saying, when a religious person confronts anything in a classroom that conflicts with her religious beliefs or her parents’, that the parents can then demand an opt-out?

MR. BAXTER: It’s really the latter, Your Honor, and that’s exactly what Montgomery County allowed in its own religious diversity guidelines. Anything that violated a student’s or imposed a substantial burden, in their language, on a student’s religious or parents’ religious beliefs, they had the right to opt out.

 

AMANDA: Well, the problem with that response from Mr. Baxter is it’s not much of a limiting rule. And so we see the justices continue to struggle, particularly, I think, Justice Jackson did quite a bit of questioning on this and Justice Kagan in the rest of the argument was, where exactly do we draw this line.

And I did see some interest in different members of the Court in drawing the line around age. Like could there be a sense that what might be mere exposure to a 16-year-old, the same content can look like coercion to a five-year-old? And I think that Justice Alito — you will not often hear me say this, listeners. But I thought Justice Alito did a really effective job of making this point, and so we’ll play this clip here.

 

JUSTICE ALITO: All right. So you’re talking about children maybe in the age of five to eleven or four to eleven. Now, would you agree that at a certain — at a certain age, students are capable of understanding this point, which probably is not a point that can be understood by a four- or five-year-old, and that is that my teacher, who is generally telling me that certain things are right and that certain things are wrong, isn’t necessarily going to be correct on everything; it is possible for me to disagree with him or her on certain subjects? Would you agree that there comes a point when a student is able to make that distinction?

 

MR. BAXTER: That’s right. And many of our clients’ objections would be diminished as their children got older, but here we’re in a situation where Montgomery County’s own principals objected that these books were inappropriate for the age, that they were dismissive of religion and shaming toward children who disagreed. The board itself withdrew two of the books for what it said were content concerns, because it finally agreed that what parents and its own principals are saying was accurate.

 

HOLLY: I agree that part of the oral argument really had an emotional and practical effect. You could understand that and feel that, and it painted a picture in a way that was different from what the school had said, which, you know, on its face sounded fine, that there was nothing in the record that said that the parents or the children had, in fact, been asked to affirm views contrary to their own views on gender and sexuality or to disavow their views, their religious views, or to otherwise affirmatively act in some way.

You know, that’s important, that the county could say that. But it may not have been enough in light of this particular subject and the age of the kids. I think that’s effective, Amanda, as you know and as I know, that as parents, when kids are young and first going to school, there’s so much they have to learn, and of course, it’s the parents’ primary objective to teach your values and your religious values, and at the same time, those first teachers are so important and what they say carries a lot of weight. And this can be very sensitive, and so these decisions need to be made really carefully.

AMANDA: I have to say that when I heard this particular exchange and any kind of reference to, you know, the same material hits different with younger kids than older kids, I thought about what we’re going through in Texas right now, and these debates about English and language arts curriculum, same curriculum in Montgomery County, but the curriculum that’s being put forward in Texas incorporates the teaching of Bible stories.

You know, these are actual religious texts, the text that not everyone in the public schools is going to agree on or even those who share the religious texts might not agree with the way that they’re being interpreted or used in the public school context.

And we’ve made this very argument to the [Texas] State Board of Education and to local school districts, that because of the age of the kids involved, it’s not age-appropriate and it’s not subject matter-appropriate, because of the weight that that elementary school teacher’s opinion and teaching holds for these kids. They are not old enough to tell the difference between a faith claim and a truth claim, and I think that that same rationale may very well apply in this case as well.

And so if the justices go this route, it will be very interesting to see how that potential ruling might be applied in other curricular settings when other state boards of education or other local school boards are adopting curriculum that actually incorporate religious teaching into the curriculum in ways that would violate religious freedom rights of other people in the community.

HOLLY: Well, Mr. Schoenfeld, on behalf of the county, said you’ve got to leave it to the school, the school board, and that these sensitive issues will be addressed, you know, by the schools, and that’s where the decision should lie. He notes that some of the briefs in support of his side mention a line of case going back to the 1980s, particularly the Mozert case, Mozert v. Hawkins County Board of Education out of Tennessee.

And that’s a case where the Court held that in the absence of a showing that some participation entailed affirmation or denial of a religious belief or performance or nonperformance of a religious exercise or practice, you know, that there’s not an unconstitutional burden on the parents.

And that was just a reminder that there are cases in the past where plaintiffs have brought lawsuits to say that it was a violation of their Free Exercise rights, when kids were exposed to books that teach witchcraft or other forms of magic and occult activities, referring to storybooks, or that teach attitudes, values, and concepts that disrespect or disobey parents. I mean, that’s a pretty common theme in children’s books. Right?

And those cases have fairly consistently held that exposure to these ideas did not amount to a cognizable right to opt out or that did not violate the religious rights of the parents and students. Of course, now, several decades later we’re looking at different facts. We’re looking at how our culture has changed.

And I could see the Court really forming some new law here, really because of the concerns that we’ve mentioned, and just noting that things are different. We have a different Court, and we have facts that deal with young children, and we have the context of LGBTQ inclusivity, and that is something that we know members of this Court continue to be concerned about, really going back to the same-sex marriage case, Obergefell, and what their expectations are for how to treat people who disagree with the idea of same-sex marriage.

AMANDA: So pretty much immediately after the argument concluded, the media reports were that this Court seems likely to rule with the parents, and in fact, in the Drummond case, even the advocate for the state of Oklahoma there seemed to assume that this Court was going to rule for the parents, in how he mentioned how that case might relate to the case that was before the justices there.

So we’ll have to see. And, of course, in all of these cases, we’ll have to see exactly how they might rule for the parents and how broad or narrow a ruling might be and what the implications could be there. And we will be looking and expecting a ruling by the time this term ends, likely by the end of June.

HOLLY: And that brings us to the close of this episode of Respecting Religion. Thanks for joining us. For more information on what we discussed, visit our website at RespectingReligion.org for show notes and a transcript of this program.

AMANDA: Respecting Religion is produced by Cherilyn Guy and edited by Nasim Bowlus. Learn more about our work at BJC defending faith freedom for all by visiting our website at BJConline.org.

HOLLY: We’d love to hear from you. You can send both of us an email by writing to [email protected].

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