This term, the Supreme Court ruled in Mahmoud v. Taylor that parents have a broad right to opt their children out of public-school curriculum materials that conflict with their religious beliefs.
Mahmoud unsettles longstanding Free Exercise doctrine and expands parental opt-out rights in a way that will, in the words of Justice Sonia Sotomayor, create “chaos” in public schools and impose “inevitable chilling effects” on curricula. One possible silver lining of the ruling, however, is that it could be used to challenge religious proselytization and indoctrination in public schools.
In 2022, the school board in Montgomery County, Md., decided to add a handful of books with LGBTQ+ characters to its language arts curriculum. The decision to add the books came after a curriculum review, which found a complete lack of LGBTQ+ representation in the curriculum. At first, Montgomery County Public Schools (MCPS) allowed parents to opt their children out of lessons featuring the new books. But the opt-outs disrupted classrooms, served to stigmatize LGBTQ+ students and families and were simply unmanageable. And so MCPS decided to remove the opt-out option.
Soon, a group of parents with religious objections to the new books sued MCPS. The parents, represented by the Becket Fund, argued that MCPS violated their Free Exercise rights by exposing their children to materials that conflict with their religious beliefs.
Up until this point, the type of argument made by the parents in this case would have failed. As Americans United’s friend-of-the-court brief explained, the Supreme Court had never – until this case – recognized a Free Exercise right to avoid exposure to secular, public-school curriculum materials that one objects to. Rather, the court has made clear that to make a claim under the Free Exercise Clause, a litigant must show that the government action in question pressures or requires them to violate their religious beliefs.
In Mahmoud, the Supreme Court rejected this longstanding principle of Free Exercise jurisprudence. Justice Samuel A. Alito, writing for a 6-3 majority, held that parents’ Free Exercise rights are burdened when their children are exposed to ideas that undermine “the religious beliefs that the parents wish to instill in their children.” And, going even further, Alito wrote that whenever a government action interferes with children’s religious development, that action will be subject to strict scrutiny – the highest level of judicial review, which is almost impossible to satisfy.
In a blistering dissent, Sotomayor excoriated the majority’s dramatic expansion of Free Exercise rights in the public-school context. If merely reading a storybook featuring LGBTQ+ characters to students is a violation of the Free Exercise Clause, then it is difficult to imagine anything that could survive under Alito’s new test. “The result,” Sotomayor predicted, “will be chaos for this Nation’s public schools.” Schools will be forced to manage individual opt-out requests to anything at school parents say undermines their children’s religious development. Many schools won’t have the resources to administer complicated opt-out systems or to engage in costly litigation and so will decide to cut materials that risk raising religious objections from the curriculum altogether. The “chilling effect” created by the ruling will thus “hand… a subset of parents the right to veto” curriculum materials for everyone.
Mahmoud is a harmful decision that will undermine public schools’ ability to set inclusive curricula. But the decision could have (unintended) positive effects when it comes to challenging religious proselytization and indoctrination in public schools. School prayer, the display of the Ten Commandments in classrooms, religious curricula — these all directly interfere with children’s religious development and thus violate parents’ Free Exercise rights under Alito’s new test.
Only time will tell if the high court will apply the test consistently, but rest assured that Americans United will work to ensure that it does.
