S6, Ep. 18: End of term roundup

On our season 6 finale, Amanda and Holly explore some of the consequential decisions from the final days of the Supreme Court term, including Mahmoud v. Taylor – which involves parents who want to opt their children out of curriculum they find in conflict with their religious beliefs – and U.S. v. Skrmetti, which focuses on access to medical care for transgender youth. They discuss the real world implications of these and other recent rulings. Amanda and Holly also celebrate a decision from the 5th U.S. Circuit Court of Appeals striking down Louisiana’s law requiring the posting of the Ten Commandments in every public school classroom and share why this case might find its way up to the Supreme Court before too long.  

SHOW NOTES

Segment 1 (starting at 00:38): Recent activities and news

For the latest on the budget reconciliation bill and ways to make your voice known, visit BJConline.org/budgetbill2025

Segment 2 (starting at 07:01): A federal court decision and a Supreme Court case with far-reaching implications

Roake v. Brumley is the 5th U.S. Circuit Court of Appeals case that struck down the Louisiana law mandating the posting of the Ten Commandments in classrooms. Read more about the decision and BJC’s brief on our website: Federal appeals court finds Louisiana’s Ten Commandments law unconstitutional as Texas enacts a similar measure

Trump v. CASA is the case often called the “birthright citizenship” case that is about national injunctions. Amanda and Holly recommended listening to the oral arguments and reading the decision and the dissent. All are available on the Supreme Court’s website. 

 

Segment 3 (starting at 19:07): The decision in Mahmoud v. Taylor and its potential impact

Amanda and Holly discussed oral arguments in Mahmoud v. Taylor in episode 15 of season 6. You can read the decision and the dissent on the Supreme Court’s website.

Holly mentioned this piece on the case from Religion News Service: ‘We were called book burners’: Families react to SCOTUS LGBTQ+ books decision

 

Segment 4 (starting 46:13): U.S. v. Skrmetti and what’s ahead for the Court

Amanda and Holly discussed U.S. v. Skrmetti in episode 6 of season 6. You can read the decision and the dissent on the Supreme Court’s website.

For more on the case involving the Religious Land Use and Institutionalized Persons Act that the Supreme Court will hear this fall, read this piece by Adam Liptak for The New York Times: Supreme Court to Hear Rastafarian Prisoner’s Suit Over Shaved Dreadlocks

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 18:   End of term roundup (some parts of this transcript have been edited for clarity)

 

AMANDA: There is great irony that on the same day the justices said, Lower courts really can’t do much to stop clearly unconstitutional actions of the executive, they say, Oh, but courts have a lot to say about analyzing school curriculum.

Segment 1: Recent activities and news (starting at 00:38)

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. The Supreme Court has released its final decisions of the term, as well as continuing to take on cases for the next one. Today we’ll discuss the most recent decision, as well as other important news in our orbit.

Specifically, we’ll talk about the decisions in two cases of interest that we covered at the oral argument stage, one involving parents who want to opt their children out of curriculum they find in conflict with their religious beliefs and another one about medical care for transgender youth. Plus, today we have an important development in the unconstitutional and severely misguided efforts to require posting Scripture in public school classrooms with the release of a good and clear decision out of the Fifth Circuit that struck down Louisiana’s plan to post the Ten Commandments in every classroom.

AMANDA: You ended with the good news that we have to share with our listeners today, and, you know, just — there has been so much going on. We are recording on the morning of July 1. Hard to believe that we’re already in July, but there have been just so many things going on since we last recorded.

I mean, we saw these attacks in Iran. We saw a horrific murder tied to political violence in our own country. And we continue to see debate about this budget reconciliation bill. We’ll cover that briefly.

So we just want to kind of start out with noting some of the stories that are coming out that we’ve been watching. We could not possibly cover everything that’s been going on, but this is the last episode of this season, and so before we go on our season break, wanted to talk about a few of these things and then get pretty quickly to the Court cases that you mentioned at the top.

HOLLY: And I think people listening with that litany of what’s going on, Amanda, kind of situate where we are today. We’ve both been traveling a good bit, and as we travel, we get to run into listeners of Respecting Religion. So off the top, I want to say thank you to all our listeners for being on this journey with us.

AMANDA: Yes. Absolutely. It really keeps us going, to meet people out who say they’re listeners, and we love hearing from you always, so it’s why we do the show.

First, you know, we have talked in the past — I wanted to do an update on where we are with the budget reconciliation bill. This is President Trump’s major legislative agenda item at the time, with a lot of huge tax cuts included in this bill and also some really concerning budget cuts to try to pay partially for those tax cuts, so it continues to add trillions of dollars to the national debt.

The part that we’ve been most focused on is the inclusion of a national school voucher program in this bill. We’ve talked about that previously. We were very pleased late last week when the Senate Parliamentarian ruled that that initiative was not appropriate to be put in this budget reconciliation bill and — at least for a time — stripped that language out.

Now, those who are pushing for this program have tried to make some edits to it, tried to add it back in, and as we record, we still do not know the final fate of that provision or of the bill. The outcome is not at all determined at this point, including what amendments might be offered and what might be struck from the final version.

So we will have to wait and see, but we want to encourage listeners to continue advocacy on this point, because no matter what happens in the Senate, that version will have to go back to the House, so you still have time to make your voice known, and we’ll put in the show notes a link to the page on the BJC website where we cover all of this and give you direct links to make your voice known to your elected representatives.

HOLLY: I’ll tell you, here on Capitol Hill, you can just feel the intensity and activity in this ongoing process of this huge legislation that, as we are inundated with news and advocacy and efforts in the nation’s capital about this, it’s very concerning, because I continue to see the stories that say people don’t even know what’s in it.

Next, we want to note with our deep sympathies that we are recording after a weekend that memorialized the recent politically motivated murder of a state lawmaker in Minnesota and her husband. And we join all of those who are grieving the loss of Melissa and Mark Hortman. Melissa was a prominent lawmaker, former Democratic House speaker, wife, mother; as well as sending our best wishes and prayers for the continuing healing of the other injured lawmaker who was also shot, he and his wife, by the same gunman. That was State Senator John Hoffman and his wife, Yvette.

And, you know, it is extremely disturbing for us to see this political violence, and we commit and hope all of you listening commit to do whatever we can to work against political violence, no matter what our differences are.

AMANDA: Yeah. I mean, just to state plainly, political violence is never justified. It does not matter what the views of the person who is perpetrating the murder or the views of the victims. It is never justified and has no place in a pluralistic democracy, and it is both heartbreaking and alarming to see yet another instance of political violence in our country.

And we’re still learning, but it seems like this gunman had been radicalized by religion in some ways, so that adds another layer of deep concern for us and particularly given our focus on how violent Christian nationalism has become and how that ideology may have played some role in motivating these awful actions.

 

 

Segment 2: A federal court decision and a Supreme Court case with far-reaching implications (starting at 07:01)

HOLLY: I’d like to switch to the good news that I alluded to at the beginning of this podcast, and that is that there was a substantial win for religious liberty at the U.S. Circuit Court of Appeals for the Fifth Circuit.

AMANDA: Woo-hoo! We’ve got to celebrate that, Holly. This does not happen every day, particularly in the Fifth Circuit.

HOLLY: That’s right. The federal appeals court that covers Louisiana, Mississippi, and Texas issued an opinion upholding the very positive district court opinion — that we’ve noted earlier — that would strike this novel legislation that came out of the state of Louisiana and required the posting of the Ten Commandments in every single public school room.

BJC, of course, filed a brief in this case, along with a lot of our denominational partners from across the Christian landscape, because we wanted to be very clear that both our Christianity and our commitment to religious freedom for all support our constitutional protections that prevent the state from picking and choosing Scripture and advancing it and particularly promoting it in the public schools in this way that, in fact, the Supreme Court has found unconstitutional in the past.

So it’s very good to have a Fifth Circuit opinion that said this is clearly unconstitutional. It’s unconstitutional under the case Stone v. Graham from 1980. But we appreciate that the Court went farther and said that even if it weren’t for Stone v. Graham, this kind of posting of the Ten Commandments in public schools does not fit within the history and tradition of our country, which is sort of this vague new standard that the Court has submitted as it abandoned some previous tests, kind of leaving the law of church-state separation in a, as we say, kind of tenuous position now and continuing to develop.

So that’s a positive note and particularly positive because it didn’t stop with Louisiana. Both Arkansas and Texas proceeded, even though this litigation was ongoing and there was a district court opinion that had held it unconstitutional. Both those states proceeded with legislative proposals to similarly require Ten Commandments postings in their public schools.

AMANDA: Yeah. And, Holly, we kind of know where this is going. Right? It’s going up to your neighbor, the U.S. Supreme Court, at some point. At least that’s what those states that have passed these laws hope, because they want to try their luck with a new Court and see if this Court would be willing to overturn that old precedent and if this Court would be willing to apply that history and tradition test in a way different from the Fifth Circuit.

That’s for another day. I think at this point this is a really strong opinion, and we have already seen litigants in Arkansas and in Texas file lawsuits to challenge the version of the Ten Commandments law in their states. And so having this precedent on the books is really helpful for Texas, which is in the Fifth Circuit. Arkansas is in a different judicial circuit but certainly would be compelling to have their neighboring court issuing this opinion.

HOLLY: For more information on that, you can look back at our earlier episodes. We talked about it in season 6, episode 8, and on the BJC website, you can certainly find out more about why we oppose posting Scripture in public schools and why doing so, in fact, does religion no favor but, in fact, harms religion, harms our commitment to religious freedom, and tends to create second-class citizens with regard to religion, undercutting our fundamental values.

AMANDA: So now, Holly, let’s switch to the Supreme Court. And the Court handed down the final decisions of this term last week. There were a lot of decisions — many, many pages, not just majority opinions but concurring and dissenting opinions as well. We are still wading through a lot of those decisions, and we know because of the import of these cases that not just we but other Court watchers will be rereading and analyzing these for many months to come.

So our conversation here today is going to be very much our first impressions of these cases, and I’m sure that on the podcast, we will return to these cases and the import in episodes and seasons to come.

HOLLY: Yeah. But we have to say that while we were waiting for the end of the term and we did, in fact, receive decisions, including one on the very last day of decisions, the Mahmoud case that we’ll talk about, we were very aware that not only were people waiting for decisions that concern religious freedom and changing standards and how we work together in our democracy and promote faith freedom for all. There is a lot of concern, of course, about the Trump v. CASA case that is often referred to as the “birthright citizenship” case or the “national injunction” case, which also came out on that very last day of decisions.

AMANDA: Yeah. And you’re right. I think most people have been tracking the birthright citizenship case, and that’s because on day one of his administration, President Trump signed an executive order purporting to end birthright citizenship. I say “purporting to” because he does not have that power — because the Constitution and federal statutes and many, many Supreme Court precedents have established the idea of birthright citizenship as a core component of what it means to be an American.

HOLLY: 125 years of established precedent, as it was often referred to.

AMANDA: Yeah. And, you know, I do commend the opinion and also the dissenting opinions, and particularly Justice Sotomayor wrote the principal dissent in this case and gives, you know, a great history on the merits of how old birthright citizenship is in American history. It really goes back pre-founding, into this idea to be born here means to be a citizen. Of course, Dred Scott was an erroneous decision and has since been overturned, that for a time limited citizenship in ways that the Supreme Court held unconstitutional.

HOLLY: It’s good that she did that, Amanda, because we know that in the public conversation, it’s really hard to separate the merits from the procedure. Litigants will tell us and the best news stories will tell us, this is not about the merits. There was not a decision on the executive order but in how a court could stop it from going into effect and really affect the rights of individuals in our country.

That said, they are wrapped up together, because that EO was so egregious, so remarkable in its breadth and the idea that you could change that through executive order.

AMANDA: You’re correct. Ostensibly, this case was about this procedural point, the legality of nationwide or universal injunctions. And there’s been a lot of ink spilled over the last several years about how prevalent these nationwide injunctions have become, how they’ve been used to stop orders from both political parties, and some real discomfort from the federal judiciary on the use of these.

So that was the procedural point. But many people felt that this case — if a nationwide injunction could ever be justified, it would be in this case, when the executive does something that is so on its face unconstitutional. There really is no legal question here about whether or not this was a constitutional act. And so I think there is a lot of justifiable not just concern but really outrage at what the majority did here, because in a very formalistic way — You know, I felt — this majority opinion felt very ivory tower to me, you know, kind of this sense of, well, here’s what the law is, and we’re going to apply it here in this very formalistic way, without really considering the merits or what was at stake in this case.

And so when you separate those two things out, you get what I think is really a wrong result here. Now, that doesn’t mean that birthright citizenship has been thrown out the window. It just means that there will have to be other procedural ways that this issue will ultimately get to the U.S. Supreme Court and how the U.S. Supreme Court will then decide it.

So we’ll see what happens with this case, and then the question is: What about the next case? What about the next, you know, clearly unconstitutional move that the executive tries — and not just this executive but any executive — tries to push? And it really hamstrings the judiciary in ways that really neutralize much of its power to curb unconstitutional actions.

HOLLY: I agree. And I would say that our listeners, if they really wanted to learn more about this, I can recommend listening to oral arguments. I mean, I don’t always say that, because there’s a lot of, you know, technicalities. But we have really good advocates.

And, Amanda, your description of the majority opinion is somewhat at odds with the feeling that comes across during the oral argument about like, Are we seriously entertaining the idea that you could not stop something that is so blatantly unconstitutional and that people would have to sue in their individual standing across the nation in order to protect this constitutional right?

So this opinion will now be looked at and is already being reacted to, to weigh against that concern by using other mechanisms to have broader relief from this executive order, including class action certification. So this is a live, ongoing, very important matter, and we’ll continue to follow it, and this is just one step for this Court along the way.

AMANDA: Yeah. I will say — you know, we say often, you can’t really tell what’s going to happen from the oral argument, and this was one of those cases. I really — at the end of the oral argument, I didn’t know how this was going to go. I think the justices were uncomfortable with the way that the government seemed to be trying to game the system in this case but also uncomfortable with the use of nationwide injunctions. And so kind of where they came out was ending that practice but leaving others in place, including the use of the class action potentially.

And I concur. Go back and listen to the oral arguments, but I also say: this is a case, take some time, read the opinion and especially Justice Sotomayor’s dissent. Holly, I had chills when I finished reading that opinion. I thought it was brilliant legal writing, but it also, as she so often does, brings home the real-world impact.

And she also kind of signaled to the litigants, okay, if you want us to decide it, this seems to be the route you should go. And she talked about filing a class action. And by the end of the day, there was a class action filed. This case will eventually come up to the Court on the merits, and we’ll see and follow what happens then.

 

 

Segment 3: The decision in Mahmoud v. Taylor and its potential impact (starting at 19:07)

HOLLY: Well, with that, let’s talk about the remaining cases that involve religion that we have discussed before. On the last day of the term, we got a decision in Mahmoud v. Taylor, the case that comes out of the Montgomery County Public School System, right outside of the District [of Columbia] on the Maryland side.

And this is one of those cases, Amanda, I think, where we did have a stronger sense of where the Court would come out, and the Court came out six to three, in favor of the parents. We’ll link to the decision in our show notes but want to talk about it a little bit here, as we have in previous episodes.

This particular dispute involves a challenge from parents who object to certain reading curriculum in their children’s elementary school. They asked for an ability to opt out of their children being part of the lessons. They want to be notified when this curriculum would be used and have the opportunity to opt out.

And the district first allowed the opt-outs, and then they changed their policy and revoked the ability to opt out. And I note that off the top, Amanda, because folks who know BJC know that we are often looking to accommodate religion the best we can, to let the government, of course, advance its important interests, but at the same time do all we can to accommodate religious objections where it doesn’t severely undercut the government’s role or the government’s objectives.

We both treasure how public schools handle these tough situations delicately, and we give a lot of grace, I think, to public schools for the big responsibility they have to respect the rights of all, LGBTQ families, secular families, and religious families from so many different traditions.

We highlighted that the big questions after oral argument for us was, you know, can the parents offer a rule when they should be notified that has some kind of limiting principle. And on the school district’s side, we wondered, could they really deny any burden on these parents, or can’t we recognize that there are religious burdens, particularly when we’re talking about the young age and formation that happens at the young age and the importance of parents and faith communities in shaping children in how they think about their identity.

AMANDA: Yeah. I think when we talked about the case before, we repeated something that we often do that, you know, especially when we’re looking at religious accommodations, we’re looking for a win-win. Where can there be an accommodation made to objecting parents where the school district can still accomplish its goals?

And I think in a lot of these cases, something has gone wrong when a lawsuit gets filed. You know, you really hope that these disputes can be worked out on the local level. And it seems here that there were missteps on both sides — that this is an unusual case where the school district had initially allowed an opt-out and then pulled it back.

And it’s also somewhat of an unusual case where the school district had a whole process for parents to object to certain materials, and these parents hadn’t really gone through that regular process of bringing concerns about the particular materials to the school board, instead just went to the federal courts.

And so we ended up with this hyper-local dispute being heard by the U.S. Supreme Court. And I noted at the time, it’s like the oral argument was like the U.S. Supreme Court was turned into a school board for 90 minutes and debating like the particular curriculum, the particular storybooks and reading aloud from the bench from the particular storybooks as part of making constitutional law.

HOLLY: We bemoan the fact not only that this kind of case made it to the Supreme Court when we really want to see public schools do a great job standing up for religious freedom for all, accommodating religious parents, and making sure that LGBTQ families and all families are included and seen in their communities and in the public school system.

But one thing that we were really bothered by is that the Court was so interested in this that they took it at this preliminary stage in the litigation under a preliminary injunction. And, of course, the school had won the preliminary injunction in the lower courts, but then the Supreme Court reverses that and actually grants a preliminary injunction for the parents.

That means the Court held that this policy of not providing any notice or opt-out for this kind of curriculum was a violation of their religious freedom rights, including really noting the parental religious right to shape their children and form them and not have the school presenting material that, in its view, took a position that really celebrated, affirmed, and advanced a particular viewpoint when it comes to matters of sexuality and identity.

And I said this, as I read it, I was so struck by how much the facts — not the facts of how this dispute unfolded but the facts of the actual material affected the majority and the dissent in how they saw this case.

AMANDA: Yeah. And when you say “the facts,” you mean the text, the text of the books.

HOLLY: I mean the text. I mean that this case is highly factual in that it deals with young children, substance that has not been well developed or understood in curriculum, so sort of, kind of new ideas somewhat, and it’s coming before a very different Court than has seen these cases in the past. And so we knew that this context meant that we were likely to get an opinion that made new law. And as we often say —

AMANDA: Bad cases make bad law.

HOLLY: Yeah. Bad facts. So we are trying to unpack how bad this is. And, you know, let me first say that we — and this was my first reaction to the case is that, you know, the decision recognizes the rights of parents and the religious importance of being able to shape children in the faith. And that’s okay, and we should recognize that. And we need to recognize that we feel differently about that, and so there’s going to be sensitivity in a school setting at the early ages.

So let’s be very clear that we do not in any way think that parents should not have that interest and should not be able to bring that to the public schools and to look for ways to accommodate those interests. At the same time, we’re very concerned with any kind of ruling or any kind of really situation that would deny families their right to be seen in the curriculum, their very existence and understanding as full participants in the public school system.

AMANDA: Yeah. And I think that was our initial like thought about this case — right? — that, yes, parents have rights to opt-outs in certain situations, that we do try to accommodate parental rights in all kinds of ways. Frankly, I was just surprised with — maybe I shouldn’t be, but I was surprised with how far Justice Alito took this case in this opinion.

And I think that resulted — just a little, how do these cases come out. Right? There’s a conference soon after the oral argument. They take a preliminary vote on where people are, and then the chief justice, assuming he is in the majority, assigns out who will write the majority opinion. And then once that majority opinion is written, they circulate a draft, and then a dissent is drafted that is responding to the majority opinion.

And so I think we have a big overreach on the part of Justice Alito writing for the majority here in the way — maybe not the outcome, but in the way he got to the outcome. Right? And then we have a really, I think, passionate dissent that is highlighting maybe not so much the concerns in this case but what about the next cases that come, because you led off, Holly, saying one of the questions was, What’s the limiting principle here? And reading Justice Alito’s opinion, it’s hard to find a limiting principle for the next case.

HOLLY: Yeah. That’s right. We can’t really predict — but it’s more than zero — how many cases will come up in the future where some parent has a strong religious principle that they feel is threatened by some curriculum, and this is not on its face limited to, you know, kindergartners, as the facts in this case really emphasize the young age of the students at issue here.

Instead what Justice Alito says is that in this kind of case, “The question is whether the educational requirement or curriculum at issue would substantially interfere with the religious development of the child or pose a very real threat of undermining the religious beliefs and practices the parent wishes to instill in the child. Whether or not a requirement or curriculum could be characterized as ‘exposure’ is not the touchstone for determining whether that line is crossed.”

And, you know, that’s really important, Amanda. We talked about how much time at oral argument was spent on, Is this just exposure, and are the plaintiffs — the parents in this case — saying that they have the right not to be exposed to something? Which would be an incredible line to draw and an incredible reversal of what has been the law.

And I think what we see here — and this is a point, I know, that will continue to be debated — is that school boards will not be able to quickly win or dismiss the claims of parents as mere exposure. This case, instead, invites more debate, objections, to whether or not the curriculum is normative in a way that interferes with a religious belief and practice.

AMANDA: Yeah. In reading that quote, you know, in there he is both quoting from and applying an old precedent, Wisconsin v. Yoder, in a very new context. Right? So that old precedent basically established a constitutional right for an accommodation, in that case of Amish parents who needed an exception to the general rule that a compulsory education continued into high school. They had firmly held religious beliefs that meant that education should end at eighth grade, and so the Court granted an accommodation in that case and found a Free Exercise right there.

HOLLY: And it applied this high standard that we often applaud, which is that religious freedom is so important and free exercise is so important that we want that kind of strict scrutiny. If the government burdens religion, even often really without a negative intent — I don’t think it’s a negative intent that there’s compulsory school; I’ll say, send your kids to school through the age of 16.

But even without that, you could have an incidental burden on religion, and because of our respect for religious freedom, we want the government to have a high standard to prove that it is necessary to advance its interests, and if at all possible, you know, be able to grant some kind of accommodation.

But you are absolutely right, Amanda, that that case and that level of strict scrutiny, not something that we see being applied or thinking it would necessarily be applied to any objection about public school curriculum.

Another thing that’s noteworthy about this, however, is that we haven’t always seen that strict scrutiny after the Smith decision, but, of course, the Smith decision left room for the Yoder case. Now, it did so on very different grounds. It did so through this really unusual theory of hybrid rights. That’s an idea that’s often made fun of in the academy and has had very little traction in the lower courts, although maybe a little bit.

But interestingly here, the Court ignored that and just really recognized that you could have a free exercise burden, a religious burden, that comes out of a parental belief and practice to shape their children, and that that is burdened by this public school action, that they now have a higher standard to address.

AMANDA: So we applaud the use of a strict scrutiny standard, but there is a burden here for the people who are coming forward to show a burden on their free exercise of religion, and the language from the case is, as you said, “a very real threat of undermining the religious beliefs and practices that parents wish to instill in their children.”

The problem here is that because of the role of the judiciary — and I just have to note before we go on. There is great irony that on the same day the justices said, Oh, we have — you know, lower courts really can’t do much to stop clearly unconstitutional actions of the executive, they say, Oh, but courts have a lot to say about analyzing school curriculum and figuring out, you know, what’s going to apply or not in these places.

So I see a lot of judicial overreach right after I wished that the judiciary had taken more responsibility in the case they issued on the same day. But I diverge.

Back to the case at hand, now who decides what a very real threat is? Well, it seems to be in the eye of the beholder, and the beholder here is the judge. And so in Justice Alito’s view — and I guess the other five who joined his opinion — these storybooks posed a very real threat.

And I will say there is some debate among the justices here about how you interpret these storybooks. And Justice Alito interprets all of this text to have, as he says, “a normative view” about same-sex marriage or LGBTQ inclusion, that these storybooks are doing a lot of work here, and that he kind of imposes his own reading of these stories onto everyone else. And I think that is causing a lot of the discomfort, too, in the way that the dissent responds as well.

HOLLY: And the only thing I can say to soften that, Amanda — which I don’t really feel the need to soften things for Justice Alito — is that there is more to the record. And as we heard at oral argument and deep in the record is the teacher’s guide and the earlier books — some of which were pulled — and that there was a greater sense of kind of threat to undermining religious values than in Uncle Bobby’s Wedding, which the case wildly goes in deeper for — I mean, I thought when we talked about it at our last episode or after oral argument, I thought, oh, my gosh, I’ll never spend this much time on a children’s book; my kids are grown now. Except when I’m volunteering in the church nursery or until I become a grandma, I didn’t think I would be that into it. But I am all into Uncle Bobby’s Wedding, because I got to hear the Alito perspective on it and the Sotomayor perspective on it.

And, frankly, if we were just talking about that, maybe then we could have an honest discussion about exposure and rights and the ability to be seen in marriage which has been constitutionally upheld as a right for same-sex couples.

But, you know, there’s a lot of clouded other things going on in this case, and, it’s clear, as you note, that a lot of this is coming from — at least the breadth of the decision is coming from a deep place for Justice Alito of threat and concern about the effect of Obergefell that upheld same-sex marriage and what that means for people who religiously oppose same-sex marriage.

AMANDA: Yeah. And for listeners, you, too, can read and see the pictures of the entire text of Uncle Bobby’s Wedding, because it is printed in its entirety at the end of Justice Sotomayor’s dissent. I thought it was remarkable on page 5 of her dissent, she wrote, “Because the majority selectively excerpts the book in order to rewrite its story, readers are encouraged to go directly to the source reproduced below.”

And I wrote in my margin there, Holly, “a la Kennedy,” because do you remember in the Kennedy case, she took issue with the way that the majority interpreted the facts, and so — and so she put photographic evidence in her dissent.

HOLLY: Yeah, yeah.

AMANDA: And here she does the whole storybook so that readers can read for themselves.

HOLLY: Yeah. She’s willing to bet that more people will agree with her view of little Chloe and how she’s feeling about her favorite uncle being taken away by marriage than she is by Justice Alito’s view of that book.

AMANDA: Well, I do want to get to some of the very real practical concerns. This case involves a particular group of parents and a dispute with the Montgomery County School District. And once cases like these are handed down, we’ll see what does this mean for other school districts.

I was, I guess, pleased that Justice Alito on page 40 of his opinion did acknowledge that courts are not school boards. I wrote, “Good to know,” in the margin when I saw that. But then on page 28 of her dissent, Justice Sotomayor talks about, you know, what this really could mean for school districts.

And I think that’s some of the concern is, How do school districts now navigate anything that could be considered controversial or against the religious beliefs of a diverse society? And what real impact that has and administrative burdens that could have on school districts that are already navigating a lot and trying to accommodate religious beliefs while also accomplishing their mission to educate our youngest citizenry.

HOLLY: Well, I think a real-world impact is going to be that school boards have to do a really thorough job to carefully pick their curriculum to engage the community in order to achieve their values, not only for their educational standards but also to reflect the community and who’s in it and who the public school serves.

And one thing that I hope comes out of this is more conversation at the local level, because I don’t think that these opinions about exposure to all kinds of families necessarily break down on religious grounds.

I think that there would be a lot of community interest in taking up for neighbors and being real about the world and the world that the kids are growing up in and what they know and what they need to understand, and then, you know, hopefully coming up with ways that materials are available, whether that’s in the library or on the shelves in different ways, and that people don’t take the easy way out and just say, We’re going to exclude any mention of these issues in our schools, in ways that would really cause harm or make these families feel like outsiders.

AMANDA: Yeah. And, I mean, part of the role of public schools is to educate and train people on how to live in a pluralistic society. And so living with people with differences — different family situations, different perspectives, different religions, different ideas — that is part of living in a democracy. And so what we sincerely hope is that that is not lost with this opinion being applied in future cases.

I can always count on Justice Sotomayor to also bring home the real-world impact in her opinions, whether she’s writing for the majority or for the dissent, and she really wrote passionately about the real-world impact for LGBTQ families and their children.

And here in her opinion, she’s responding to some of the teacher guidance that is offered in the accompanying materials to the books and how to answer questions. And one of the areas is: “If a student says, ‘That’s so gay,’ the guidance suggests a teacher may respond, ‘Regardless of how it’s intended, using “gay” to describe something negative reflects a long history of prejudice against LGBTQ+ people, so please don’t use it in that way. You may not have meant to be hurtful, but when you use the word “gay” in any way outside of its definition, it’s disrespectful.’”

And she goes on to say, “The majority reads these portions of the guidance to direct teachers to ‘accuse students of being hurtful when they express confusion based on their religious views.’ The majority only reaches that conclusion, however, by omitting portions of the student commentary to which the teachers are responding in the guidance. Those excised statements, the majority should presumably agree, could be hurtful to students in the classroom and thus warrant discouragement.

“Comments like that, moreover, are sadly not uncommon in the nation’s school system today. In a recent study, the overwhelming majority of LGBTQ students reported hearing homophobic language used by their peers. Over two-thirds of LGBTQ students moreover reported feeling unsafe at school because of their sexual orientation or gender identity.”

So often there can be such a focus in some of these opinions on the religious rights of the people who are wanting an accommodation, it’s important to highlight the impact of the hurtful comments that are happening in schools and how can we as a community — it’s not up to the Supreme Court to solve this problem. How can we as a community come together to make school a safe and welcoming place for all people and all children?

HOLLY: I appreciate that Justice Sotomayor did that. It puts a little bit more context appropriately on what the school was trying to do and what schools have to do to take up for all students. And, you know, teachers on a day-to-day basis have to handle difficult situations and try to protect the environment for all. And so I think it was really important that she did that to kind of reframe what’s going on here, different from what I felt sometimes in the Alito opinion which was all working against some kind of big project to harm a particular religious view.

And it reminded me, Amanda. We got a very thoughtful email from one of our listeners that really engaged us on this case and gave her experience as a parent in this very school system.

AMANDA: Yeah. We got permission to share anonymously this email that we got from a listener, a parent in the Montgomery County School System who is the parent of an LGBTQ child and talked to us about how her son has been received in the school district, mostly very well. But she listened to the argument. She listened to our podcast.

And she really was so gracious to share her personal experience and her personal concerns that should the Court rule a certain way, What are the limits of what an opt-out looks like? Can a child or a family opt out from being in a class with her son? Can they opt out of other ways of showing respect for her son? What are the limits here — and not just for in the LGBTQ context but other places where religious beliefs might diverge from her family situation?

We just really appreciated, Holly, this reminder of a real person who goes to this school and what impact this could have on a sense of belonging for her child in the school system.

And I think sometimes we can read decisions and get in our own ivory towers about what standard and what does this mean, and we really appreciated this listener interacting with us and offering her story and being gracious enough to let us share some of that with our listeners as well.

HOLLY: Yes. Very much appreciate this listener helping us understand her child’s experience, both in complimentary terms toward her school district but also with some fear about what’s ahead and what this ruling can mean.

And there are sensitivities, not exactly the same but on different sides of this dispute. We saw this in the title of a story by Religion News Service that was, “‘We were called book burners’: Families react to SCOTUS LGBTQ+ books decision.” So that story — we can link in the show notes — gives these different perspectives on what was going on in the community, and you could just see the deep need for continued conversation and to find a way through this.

AMANDA: Yeah. And you were quoted in that article. We will put it in show notes. But I also saw, I think, a very measured statement from Montgomery County Public Schools, saying, “Although not surprised, we are disappointed in today’s ruling. This decision complicates our work creating a welcoming, inclusive, and equitable school system.”

So they’re not going to give up on their goals to create that, but it does make it more complicated. We will see, of course, how this plays out, not just there but in other public schools around the country.

 

 

Segment 4: U.S. v. Skrmetti and what’s ahead for the Court (starting at 46:13)

HOLLY: And we also wanted to note that the Court did issue its opinion in U.S. v. Skrmetti, the case that we discussed back in December in episode 6 of this season, where we reviewed the oral arguments. This case is the one that challenged Tennessee’s SB 1 which was passed in 2023 that bans, quote, “the use of certain medical procedures for treating transgender minors.”

The law at issue there applies to individuals under the age of 18. In particular, it prohibits surgical modification and alteration, prescribing and administering puberty blockers and hormones for particular purposes, first, enabling a minor to identify with or live as a purported identity inconsistent with the minor’s sex, or treating purported discomfort or distress from a discordance between the minor’s sex and asserted identity.

The state says, among other things, that the purpose is to protect minors by encouraging them to appreciate their sex, and the law was enforced by legal threats to medical providers and regulators.

Transgender minors, their parents and doctors sued in a pre-enforcement challenge of this Tennessee law, asserting an equal protection violation. That’s also under the Fourteenth Amendment. And, you know, they really focused on this language that the state was interfering and treating transgender children differently from others under the Equal Protection Act.

We discussed this at length, and we could see how the Court was dealing with this. Again, Amanda, you could view this as formalistic, because there was this great debate about whether or not the state is regulating particularly against and on the issue of sex and gender, or is it regulating on the basis of age and medical practice. We’ll link to the decision in the show notes.

It is a case that will have huge implications for families and how they are getting treatment for their children. You know, while this pertains to a very small population, it has potentially devastating impacts on some children. There are real concerns for families and their relationship with their doctors, which, you know, it’s very difficult to see state legislatures intervene there, as well as the Supreme Court intervene in there.

And it’s a concern that this case might end up having different standards for different states and that we might have another situation here where the kind of medical care you can get depends on the state in which you live.

This case is one that is being looked at very carefully from a lot of different perspectives. It has already unleashed kind of a next round of litigation as things continue to develop in this area of how best to protect trans people and how best to protect children and have the best medical care possible that’s appropriate for every situation.

AMANDA: So, Holly, how does the Court get to avoid the issue of sex? You know, because after Bostock, I think we had an opinion written by Justice Gorsuch that said that in the context of Title VII, that you had to consider issues of sexual orientation and gender identity as being included in sex as a protected category. You noted that, instead, they find it based on age or medical use. How do they get there, and what kind of standard of review were they using to do so?

HOLLY: The Court really limited its decision in Bostock, because that was a decision based on statutory interpretation of Title VII. That’s the federal law that protects against employment discrimination on various protected categories, including sex. And in the Bostock case, the Court held that that term in that setting included sexual orientation and gender identity.

And so it would be easy to say that any law that makes distinctions based on gender identity or sexual orientation would be some kind of law that improperly is making a sex classification, and if there’s a sex classification, under equal protection law, you get a heightened scrutiny.

But the Court really rejected that that’s what Tennessee was doing here, and it bought this argument that the classification was based on age and medical use. And in that case, under equal protection law, as this Court described in this case, they only need to apply rational basis. Tennessee just has to have a rational basis for this law, and so they don’t have to look at all of the impacts.

And, you know, the Court started notably with citing a lot of international research and having these questions about long-term results from these medical treatments and noting a lot of open questions, and then just really wanted to defer to the state legislature.

And so that was the basis of this decision, was straight up equal protection, rational basis, and then a very good debate among the different justices about whether that was right and proper, or whether or not this was targeting transgender children, which, of course, you can see the argument there, and also whether and what would be the implications of finding transgender to be a protected category — or excuse me — a particular status that then deserves heightened scrutiny as sex and race achieve under the law.

Again, Amanda, we look to Justice Sotomayor who talks about the problem specifically in this case is the categorical ban. And regardless of the state of research and all of the different arguments people can make about transitioning and medical treatment for young children, it’s very difficult to understand a kind of categorical ban that could have such a huge impact on individuals and individual families.

We will continue to watch the Court and all of these important issues raised and how they affect faith freedom for all in our individual daily lives as we live in this complex democracy and need to stand together.

We know that the Supreme Court has already decided to hear a religion case next term, this one dealing with the appropriate remedies under the Religious Land use and Institutionalized Persons Act. There’s a good piece from New York Times reporter Adam Liptak that we’ll put in the show notes to kind of preview what’s ahead for the next Supreme Court term.

AMANDA: And we will be taking our season break. We want to thank listeners for being with us for season 6 of Respecting Religion. We’ve been at this, Holly, for more than five years now, and we appreciate so much the feedback we get, the responses from listeners.

Thank you for being with us. We will be back for a season 7 in just a few months but hope you enjoy some summer break as we will have some opportunities to do that as well. And there will be, as always in these episodes, more than we have time to talk about, but grateful for this platform that we can share these ideas with all of you.

HOLLY: And that brings us to the close of this episode and this season of Respecting Religion. Thank you for joining us for season 6. For more information on what we discussed today, visit our website at RespectingReligion.org for show notes and a transcript of the program.

AMANDA: Respecting Religion is produced and edited by Cherilyn Guy, and transcripts are provided by Anita Tyler.

Our thanks to everyone who has worked on episodes with us this season, both behind the scenes and in front of the microphone, including Israel Igualate, Karlee Marshall, Iona Gordon, Sabrina Strickland-Harris, Sera Guerry, Nasim Bowlus, Sabrina Dent, Corey D.B. Walker, and Melissa Rogers.

HOLLY: You can learn more about our work at BJC, defending faith freedom for all, by visiting our website at BJConline.org.

We would love to hear from you. You can send us both an email by writing to [email protected].

AMANDA: We’re also on social media @BJContheHill, and you can follow me on X, Bluesky, and Threads @AmandaTylerBJC.

HOLLY: And if you enjoyed the show, share it with others over the summer. Let them catch up on their podcasts. Take a moment to leave us a review or a five-star rating. That helps more people find us.

AMANDA: We also want to thank you for supporting this podcast. You can donate to these conversations by visiting the link in our show notes.

HOLLY: Join us next time for a new conversation Respecting Religion.