It may take the justices of the U.S. Supreme Court to restore a semblance of order to America’s public schools, some of which have been enticed into accepting a militant gay/transgender ideology. What has happened in certain school districts is apparent from the facts of a case recently argued before the high court — Mahmoud v. Taylor.
The school board of the Montgomery County (Maryland) School District adopted a requirement that its elementary teachers must read certain books to their elementary students. The content of the half-dozen mandated “storybooks” indisputably presented and promoted LBGTQ+ themes: “pride parades, gender transition, same-sex romances.” Court documents reveal that even the school’s own principals raised objections, but the board moved ahead anyway. At first, parents were told their children could opt-out. However, almost immediately the school board prohibited opting out and to do away with any advanced warning to parents as to when the “storybooks” should be read in class.
They were to use more LGBTQ+ propaganda … such as “your parents decide whether you are a boy or girl, but they might be wrong.”
Parents of a variety of religious groups — Muslim, Eastern Orthodox, and Roman Catholic — strongly objected to the board’s policies. The families filed a suit claiming that their First Amendment rights under the free exercise clause were being burdened. The families lost in the district court and again before the Fourth Circuit Court of Appeals. However, the Supreme Court agreed to hear their case.
One of the “storybooks” about which the parents are complaining is called Pride Puppy and is typical of the six books advancing the LGBTQ+ cultural agenda. This book is said to be for children three to five years old. In Pride Puppy, parents bring their children, including the family puppy, to a gay pride parade. The puppy gets lost and is later reunited with his family. The illustrations show the participants in the parade, along with rainbow signage, dress, and flags.
Pride Puppy purports to be helping preschoolers learn the alphabet. One of the key pages contains an activity called “Search and Find Word List.” The children are prompted to look for images in the pride parade that begin with certain letters of the alphabet. Some of the words in the lists are innocuous. However, one finds, for example, that under the letter “Q” there are only two choices and one of them is [drag] Queen. The same is true for “K” where we find [drag] King. (The brackets appear in the book.)
One of the choices in the list of “M” words is the name of a person whose picture and name appear on a placard held by a parade participant. It bears the name “Marsha P. Johnson.” Johnson was “a self-identified drag queen and prominent gay liberation activist who co-founded the Street Transvestite Action Revolutionaries.” Since she had “difficulty finding employment she turned to sex work.” That is only one of the six books.
To make matters worse, the school board proposed various responses for teachers to use in dealing with questions in class from students. Here is just one: Suppose a student asks what “transgender” means? Here is the suggested response from the board: “When we’re born, people make a guess about our gender and label us boy or girl based on body parts. Sometimes they’re right and sometimes wrong. Body parts do not decide our gender. Our gender comes from our insides.”
This is not diversity; it is a determined LGBTQ+ crusade, and one can see why religious Montgomery County parents are deeply concerned.
Legally, the Montgomery County School District appears to be on a collision course with a line of long-established Supreme Court precedents and a group of recent decisions, all of which support the complaining parents.
The first case is a century old and recognized that parents have a fundamental liberty under the 14th Amendment’s due process clause to guide their children’s education. In Pierce v. Society of Sisters (1925), the court established the principle of parental educational autonomy by siding with parents who sought religious education in a Catholic school which Oregon regarded as failing to comply with its “public-school-only-mandate.”
The next significant case protecting religious freedom, though it did not involve education, was Sherbert v. Vernor (1963). There, the court endorsed what became known as the “Sherbert test.” In that case, Sherbert, the complainant, had been denied unemployment compensation payments by the state because she refused to make herself available for work on Saturdays, which was her Sabbath. The court found that her free exercise of religion was “burdened” by the state’s demands and, further, that the state had no necessary reason for its policy. In other words, the state’s reasons for refusing Sherbert benefits was not “compelling.”
The premier case protecting the rights of religious believers concerning the education of their children is Wisconsin v. Yoder (1971). There, the Supreme Court ruled that Amish children could not be forced into the public high school system after they had completed the eighth grade, usually at their own Amish schools. To do so would “burden their free exercise of religion” and undermine that religious order’s religious teachings.
The Fourth Circuit Court of Appeals, which ruled against the Montgomery County parents, attempted to downplay this entire line of cases by disparaging Yoder. The appeals court’s opinion argued that Yoder was based on a “singular set of facts,” conveying the message that this long-recognized opinion should be viewed as having “limited holding” intended for cases of extreme separatist religious sects. By doing so, the Fourth Circuit ignored the clear statement in Yoder by Chief Justice Warren Burger. He called Pierce v. Society of Sisters “a charter of the rights of parents to direct the religious upbringing of their children,” and concluded that the outcome favoring the Amish parents in Yoder amounted to the same thing — a proclamation of parental liberty to follow their religious convictions in directing the education of their children.
The appeals court concluded that though a “burden” on the religious liberty of the students and parents may have existed, it was not substantial enough to qualify as “unconstitutional.” The appeals court’s said that there was no significant burden because the parents could keep instructing their children at home on these matters. Apparently, the court thought that the conflict between what the children heard at school and what the parents taught at home did not count as burdening.
Further, the court said there was no evidence that the children’s views on sexuality and gender were changed, and the children were not compelled to agree with the contents of the LGBTQ+ storybooks. Never mind the dissonance and confusion generated in the students’ minds which might produce, as yet, unknown effects on their views of gender and sexuality. The appeals court viewed any burden on the religious views of the children as being “indirect” and, therefore, insubstantial.
One is left to wonder precisely what it would take to constitute a “burden” on religious belief according to the Court of Appeals if there was not one here? The children were required, without exception, to listen to the stories while attending school which they, by law, had to attend. The school-board mandated storybooks were colorful and appealing, skewed in favor of gay/transgender ideology, casting the characters and events portrayed as desirable and normal, even though they were clearly in opposition to traditional religious norms.
Moreover, the books were read to the students by their own teachers, whom the students had come to rely upon and trust. These same teachers were counseled by the school board, according to documents presented to the court, on how to counter any student opposition. They were to use more LGBTQ+ propaganda about human sexuality, such as “your parents decide whether you are a boy or girl, but they might be wrong.” These planned “counter arguments” were likely to create further confusion for the children about gender.
Add to that the fact that this entire gay/trans project was to be carried out in the absence of parents who were effectively excluded by the school board’s “no notice, no opt-out” policy.
School Faces Powerful Precedent
Besides disregarding the obvious burden that the Montgomery School District was imposing on parents and children, the appeals court either ignored or misinterpreted a series of recent Supreme Court decisions. In these, the court had ruled in favor of parties holding religious beliefs when the state threatened to bar the litigants from receiving a government benefit unless they relinquished their religious views. To cite a few examples:
In Fulton v. City of Philadelphia, Catholic Social Services (CSS) either had to accept same-sex couples as foster parents, against the church’s religious teaching, or give up the government benefit of participating in the city’s foster-care system. With that “choice,” the court found that CSS’s religious liberty was burdened by the government’s policy.
In Espinoza v. Montana Department of Revenue, the court ruled that the religious liberty of parents was denied when private religious schools were refused public-tuition assistance unless the schools severed their connection with a church or denomination.
In Kennedy v. Bremmerton School District, the court protected a high school football coach’s kneeling for a personal prayer after a game from having to relinquish his job. The “choice” for him? Either give up his religious convictions or lose his government benefit, a coaching job at a public school. The court ruled in his favor.
In like manner, in the case at bar, to avoid losing the benefit of a free public-school education, the Montgomery County parents would have to accept, without reservation, the gay/trans indoctrination of their elementary-aged children which was patently contrary to their religious convictions. The Supreme Court is likely to find that the parents and children have had their free exercise rights burdened.
The members of the high court’s liberal wing might try to convince their court colleagues that the Montgomery County School District has shown what Sherbert v. Vernor called a “compelling interest,” that is, an interest so important that despite parental and religious rights being at stake, that interest should override those rights.
However, it is unlikely that the school district would succeed in convincing a majority of the court that the school’s bizarre series of gay/trans storybook encounters for three to five year-olds, replete with drag queens, same-sex romances, and gender transition advocacy, meets that “compelling interest” standard. To rule that the need for the gay/trans series was “compelling” the court would have to conclude that without it, preschoolers’ education would be fundamentally deficient. So, under Sherbert and Yoder and Pierce, the school district and the Board would lose.
One additional note: A possible attempt by certain liberal justices would be to try to convince the court to follow a 1990 case (Employment Division v. Smith) in which the court seemed to deviate from Sherbert for a time. In that case, the majority concluded that a government policy or regulation which burdened the religious rights of a person did not excuse that litigant from compliance as long as the law, regulation, or policy was “neutral and generally applicable.”
Most commentators say that Smith is on very shaky ground with the current court. Regardless, the school board in Mahoud v. Taylor has been neither neutral nor general in its policy application. It originally allowed opt-outs, but when there were religious objections, it abruptly changed its policy. That is a lack of neutrality. Also, its policy violates a generally applicable Maryland law that requires exemptions to be allowed in matters of family life and sexuality.
The sad and disturbing thing is that should the parents win, which is likely, the school board will undoubtedly continue its campaign to convert its young students to an extreme gay/trans agenda even though some parents will be able to arrange to have their children opt-out.
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