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[Icky Mettle]

Supreme Court seems likely to let religious families opt out of LGBTQ storybooks​

The lawsuit over public school story time with titles like “Uncle Bobby’s Wedding” and “Love, Violet” is one of three major religious-rights cases on the high court’s docket.

https://www.washingtonpost.com/politics/2025/04/22/supreme-court-lgbtq-books-storytime-montgomery-maryland/?location=alert

“… At issue for the justices is whether public schools in Montgomery County, Maryland, illegally burden the First Amendment rights of parents to freely exercise their religion when children are required to participate in discussions that touch on gender and sexuality that conflict with their faith. The case, which has implications for public schools nationwide, involves the type of diversity and inclusion efforts the Trump administration has targeted on college campuses and in K-12 districts, as well as in government and private businesses.

… During more than two and a half hours of argument on Tuesday, several justices read aloud from the text of the disputed storybooks, some of which referred to drag queens and same-sex marriage.

Conservative justices repeatedly pressed the lawyer for the Maryland school system on why it could not easily accommodate the religious parents and allow their children to opt out of objectionable curriculum.

“What’s the big deal about allowing them to opt out?” asked Justice Samuel A. Alito Jr.

“I’m not understanding why it’s not feasible,” added Justice Brett M. Kavanaugh, who said he was “mystified” by the school board’s actions in the Maryland county where he grew up and still lives.

… Montgomery County expanded its English Language Arts curriculum in 2022 to include books with LGBTQ+ characters to better reflect the diversity of families in its religiously diverse and politically liberal population. The elementary school books included stories about a girl who finds that her favorite uncle’s marriage means she’s gaining another uncle, not losing one. Another tells the story of a young girl who has a crush on her female classmate.

Only two of the court’s liberal justices — Sonia Sotomayor and Ketanji Brown Jackson — seemed to embrace the school system’s claim that allowing opt-outs would be unworkable for school officials and potentially lead to troubling outcomes.

… The parents behind the lawsuit say they are not trying to change the lesson plans or remove any books from classroom shelves. They just want to have the option of saying their children will not participate. …”

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Unsurprising. I have sympathy for parent wanting say in what their kids learn in school.

The reality is that having kids opt out of a lesson means having to have alternative oversight for those kids while the lesson is taught. In schools stretched thin, that is a bigger hassle than the justices blithely suggest, so the likely outcome I that such lessons will be limited or avoided for largely logistical reasons. And s Kagan noted, depending on how broadly the opinion is written, we could end up with parents demanding opt out rights for everything, effectively requiring cafeteria plan lessons.

But the direction here I obviously and the issue will be how tightly they circumscribe the opt-out rights as a First Amendment matter.

That’s the weird thing about this case to me: the First Amendment (specifically as it relates to religious freedom) angle. The topics are secular. And on a related note, what if a work of literature focuses on a Christian family and goes into detail about their religious practices and beliefs? Or what if a work of literature uses symbolism derived from Christian beliefs/stories, as much literature does? Can non-Christian parents opt their kids out?

 

[superrific]

Or what if a work of literature uses symbolism derived from Christian beliefs/stories, as much literature does? Can non-Christian parents opt their kids out?

This is the question that the religious liberty types cannot answer, or at least not in any satisfying way.

They simultaneously want a) the courts to take religious liberty plaintiffs at their word -- i.e. give them a strong presumption of sincerity that is probably impossible to defeat without the plaintiff fucking up; and b) give religious liberty plaintiffs the ability to avoid generally applicable laws unless the state can satisfy strict scrutiny.

The obvious result is a slow-motion degradation of our systems of law. The religious-exemption industry is just getting going, but I see no reason why it wouldn't spread as soon as its advantages become clear -- which might happen if there's a big celebrity case involving such a thing.

It's never been really clear to me what's wrong with the standard laid out in Employment Division v Smith -- i.e. incidental burdens on free exercise that emerge from generally applicable laws (with no discriminatory intent) are not of constitutional significance. The facts of Smith always give liberals pause: the petitioners were Native Americans arrested and convicted for possession of peyote, which they said was used for a religious ritual required by the religion. It combined a War On Drugs mentality with arguable discrimination against Native Americans, and liberals really don't want to rule for the state.

There can be narrowing formulations: maybe the generally applicable laws standard only applies to activities with high propensity for abuse. We basically wouldn't have any drug laws if anyone arrested can say they smoke the ganja 'cause religion. Arguably a narrow exception for peyote doesn't raise this problem, as peyote isn't terribly popular and members of tribes are historically known to use peyote in religion. But that's a far cry from what this court is doing, which is basically to give Christians the option as to whether they want to obey anti-discrimination and public accommodations laws.