Supreme Court of the United States (SCOTUS): While considering a matter concerning challenge to introduction of several “LGBTQ+-inclusive” texts into the public school curriculum by Montgomery County Board of Education (Board); the Full Bench of the Court comprising of John Roberts, CJ., and Clarence Thomas, Samuel Alito*, Sonia Sotomayor**, Elena Kagan, Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett and Ketanji Brown Jackson, JJ., with a ratio of 6:3, held that parents challenging the Board’s introduction of the “LGBTQ+-inclusive” storybooks, along with its decision to withhold opt outs, are entitled to a preliminary injunction.
The majority opined without an injunction, the parents will continue to suffer an unconstitutional burden on their religious exercise, and such a burden unquestionably constitutes irreparable injury; and an injunction would be both equitable and in the public interest.
Background: Introduction of LGBTQ+ inclusive textbooks in public school curriculum:
During the Academic Year of 2022—2023, the Board introduced a variety of “LGBTQ+-inclusive” texts into the public school curriculum. Those texts included five “LGBTQ+-inclusive” storybooks approved for students in kindergarten through fifth grade, which have story lines focused on sexuality and gender.
When parents in Montgomery County sought to have their children excused from instruction involving those books, the Board initially compromised with the parents by notifying them when the “LGBTQ+ inclusive” storybooks would be taught and permitting their children to be excused from the instruction. That compromise was consistent with the Board’s Guidelines for Respecting Religious Diversity, which professed a commitment to making “reasonable accommodations” for the religious “beliefs and practices” of students. Less than a year after the Board introduced the books, however, it rescinded the parental opt-out policy. Among other things, the Board said that it “could not accommodate the growing number of opt out requests without causing significant disruptions to the classroom environment”.
The petitioners herein were a group of individual parents who came from diverse religious backgrounds and held sincere views on sexuality and gender, which they wish to pass on to their children. Faced with the Board’s decision to rescind opt outs, petitioners filed a lawsuit in the United States District Court for the District of Maryland. Among other things, they asserted that the Board’s no-opt-out policy infringed on parents’ right to the free exercise of their religion. Petitioners sought a preliminary and permanent injunction “prohibiting the School Board from forcing their children and other students——over the objection of their parents——to read, listen to, or discuss” the LGBTQ+ inclusive storybooks. Furthermore, the parents sought a preliminary injunction that would permit them to have their children excused from instruction related to the storybooks while this lawsuit proceeds.
Majority’s Assessment:
Perusing the issue, the SCOTUS majority noted that to obtain the preliminary relief of excusing the children, the parents must show that they are likely to succeed on the merits; they are likely to suffer irreparable harm in the absence of preliminary relief; the balance of equities tips in their favour; and an injunction would be in the public interest.
The majority opined that the parents had a greater likelihood to succeed on their claim that the Board’s policies unconstitutionally burden their religious exercise. For many people of faith, there are few religious acts more important than the religious education of their children; and the practice of educating one’s children in one’s religious beliefs, like all religious acts and practices, receives a generous measure of constitutional protection.
It was pointed out that the Board’s introduction of the “LGBTQ+-inclusive” storybooks, combined with its decision to withhold notice to parents and to forbid opt outs, substantially interferes with the religious development of petitioners’ children and imposes the kind of burden on religious exercise that has been found unacceptable in relevant SCOTUS precedents. The books were unmistakably normative and were designed to present certain values and beliefs as things to be celebrated, and certain contrary values and beliefs as things to be rejected. The majority elucidated their opinion highlighting the books concerning same-sex marriage. It was noted that many Americans advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. That group includes each of the parents in this case. “The storybooks, however, are designed to present the opposite viewpoint to young, impressionable children who are likely to accept without question any moral messages conveyed by their teacher’s instruction. The storybooks present same-sex weddings as occasions for great celebration and suggest that the only rubric for determining whether a marriage is acceptable is whether the individuals concerned “love each other.”
The majority further pointed out that the storybooks similarly conveyed a normative message about sex and gender. “Many Americans, like the parents in this case, believe that biological sex reflects divine creation, that sex and gender are inseparable, and that children should be encouraged to accept their sex and to live accordingly”. The storybooks, however, suggested that it is hurtful, and perhaps even hateful, to hold the view that gender is inextricably bound with biological sex.
The majority thus found that these books imposed upon children a set of values and beliefs that are “hostile” to their parents’ religious beliefs. Furthermore, the books exerted upon children a psychological “pressure to conform” to their specific viewpoints. The books therefore presented an “objective danger to the free exercise of religion”.
The majority of declined to accept the Board’s contentions that the characterizations of the “LGBTQ+-inclusive” instruction was mere “exposure to objectionable ideas” or as lessons in “mutual respect.” “The storybooks unmistakably convey a particular viewpoint about same–sex marriage and gender. And the Board has specifically encouraged teachers to reinforce this viewpoint and to reprimand any children who disagree”, which goes beyond mere “exposure”. Therefore, the majority concluded that the Board’s policy burdened the parents’ right to the free exercise of religion.
Further considering whether that burden was constitutionally permitted, the Court pointed out that in most circumstances, the government is generally free to place incidental burdens on religious exercise so long as it does so pursuant to a neutral policy that is generally applicable. However, when a law imposes a burden of the same character as the challenged Board policy herein, strict scrutiny is appropriate regardless of whether the law is neutral or generally applicable.
Thus, the majority opined that the parents were able to that they are entitled to a preliminary injunction. Specifically, until all appellate review in this case is completed, the Board should be ordered to notify the petitioners in advance whenever one of the books in question or any other similar book is to be used in any way and to allow them to have their children excused from that instruction.
Dissenting Opinion:
Sonia Sotomayor, J., delivered the dissenting opinion in which Kagan and Jackson, JJ., joined. She opined that the majority ruling ushered in a new reality casting aside longstanding precedent, thereby inventing a constitutional right to avoid exposure to “subtle” themes “contrary to the religious principles” that parents wish to instil in their children. “Exposing students to the “message” that LGBTQ people exist, and that their loved ones may celebrate their marriages and life events, the majority says, is enough to trigger the most demanding form of judicial scrutiny”. Sotomayor, J., pointed out that the majority’s ruling, in effect, hands a subset of parents the right to veto curricular choices long left to locally elected school boards.
The dissenting Judges observed that the Board found that LGBTQ children and families were underrepresented in its English language curriculum. To fill that gap, the Board worked with a committee of specialists to identify LGBTQ-inclusive books that it could incorporate into the existing curriculum, thereby creating the curriculum for 2022-2023.
Pointing out that the majority misinterpreted the precedents, the dissenting Judges noted that the majority’s myopic attempt to resolve a major constitutional question through close textual analysis of one of the LGBTQ+ inclusive story in question, reveals its failure to accept and account for a fundamental truth: LGBTQ people exist. They are part of virtually every community and workplace of any appreciable size. Eliminating books depicting LGBTQ individuals as happily accepted by their families will not eliminate student exposure to that concept. Nor does the Free Exercise Clause require the government to alter its programs to insulate students from that message.
The dissenting Judges cautioned that the majority’s decision will profoundly damage America’s public education system. Requiring schools to provide advance notice and the opportunity to opt out of every book, presentation, or field trip where students might encounter materials that conflict with their parents’ religious beliefs will impose impossible administrative burdens on schools. It was pointed out that under the majority’s test, school administrators will have to become experts in a wide range of religious doctrines in order to predict, in advance, whether a parent may object to a particular text, lesson plan, or school activity as contrary to their religious beliefs. The scale of the problem is only compounded by the majority’s conclusion that even “subtle” and implicit messages contained in children’s books can trigger notice and opt-out obligations.
Establishing a new constitutional right to opt out of any instruction that involves themes contrary to anyone’s religious beliefs will create a nightmare for school administrators tasked with fielding, tracking, and operationalizing highly individualized and vaguely defined requests for particular students. In effect, then, the majority’s new rule will hand a subset of parents a veto power over countless curricular and administrative decisions.
The dissenting Judges stated that point of the Board’s program was to ensure that diverse groups of students are represented in reading materials across the curriculum. “The Board cannot accomplish that purpose simply by consolidating all books involving LGBTQ characters into a single inclusivity hour and allowing opt outs, as the majority appears to believe”. The point of inclusivity is to use books representing a diversity of identities and viewpoints the same way one might use any other book, communicating that one’s LGBTQ classmates should be treated in the same manner as anyone else.
The dissenting Judges concluded cautioning that the Court’s ruling in effect, constitutionalizes a parental veto power over curricular choices long left to the democratic process and local administrators. “That decision guts our free exercise precedent and strikes at the core premise of public schools: that children may come together to learn not the teachings of a particular faith, but a range of concepts and views that reflect our entire society. Exposure to new ideas has always been a vital part of that project, until now. The reverberations of the Court’s error will be felt, I fear, for generations”.
[Mahmoud v. Taylor, No. 24—297, decided on 27-6-2025]
*Majority judgment by Justice Samuel Alito
**Dissenting opinion by Justice Sonia Sotomayor
