Justices seem set to allow opt-outs from LGBTQ stories in schools
Justice Brett Kavanaugh noted that the school board initially allowed parents to withdraw their children when the books were discussed, but reversed course.
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'I'm not understanding why it's not feasible,' he said, adding, 'They're not asking you to change what's taught in the classroom.'
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Lawyers for the school system said the opt-outs were hard to administer, led to absenteeism, and risked 'exposing students who believe the storybooks represent them and their families to social stigma and isolation.'
In recent cases, the Supreme Court has expanded the role of religion in public life, sometimes at the expense of other values like gay rights.
The court has ruled in favor of a web designer who said she did not want to create sites for same-sex marriages, a high school football coach who said he had a constitutional right to pray at the 50-yard line after his team's games, and a Catholic social services agency in Philadelphia that said it could defy city rules and refuse to work with same-sex couples who had applied to take in foster children.
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Montgomery County Public Schools, Maryland's largest school system, adopted the new curriculum in 2022. The storybooks included 'Pride Puppy,' an alphabet primer about a family whose puppy gets lost at a Pride parade; 'Love, Violet,' about a girl who develops a crush on her female classmate; and 'Born Ready,' about a transgender boy. Parents of several faiths sued, saying the books violated the First Amendment's protection of the free exercise of religion. The books, their complaint said, 'promote one-sided transgender ideology, encourage gender transitioning, and focus excessively on romantic infatuation.'
Near the end of the argument, Kavanaugh thanked the school board's lawyer, Alan Schoenfeld, suggesting he had done what he could with hopeless material. 'It's a tough case to argue,' Kavanaugh said.
Justice Elena Kagan, a member of the court's liberal wing, said the books dealt with sensitive topics. They are, she said, 'young kids' picture books and on matters concerning sexuality.'
'I suspect there are a lot of nonreligious parents who weren't all that thrilled about this,' she said. 'And then you, you know, add in religion and, and that's, you know, even more serious.'
But she said the case presented difficult line-drawing problems between allowing school officials to determine what to teach, and respecting parents' ability to oversee their children's religious upbringing.
One of those lines, Justice Sonia Sotomayor said, was whether simply exposing children to the books put a burden on their parents' faith.
'The mere exposure to things that you object to is not coercion,' she said.
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Kagan asked Eric Baxter, a lawyer with the Becket Fund for Religious Liberty, which represented the parents, to help find a line, giving the example of teaching evolution in a biology class.
Baxter said parents should be able to withdraw their children whenever instruction conflicted with their sincerely held religious views.
The upshot of that approach, Kagan said, was 'opt-outs for everyone.'
Two justices had differing interpretations of one of the books, 'Uncle Bobby's Wedding,' about a same-sex union.
'The book has a clear message,' Alito said, 'and a lot of people think it's a good message, and maybe it is a good message, but it's a message that a lot of people who hold on to traditional religious beliefs don't agree with.'
He focused on one character in the book, which is intended to be read by 3- to 6-year-olds. A little girl named Chloe has reservations about her uncle's marriage, Alito said, but her mother corrects her. 'It's a clear moral message' endorsing same-sex marriage, the justice said.
Sotomayor interjected. 'Wait a minute,' she said. She said Chloe was not objecting to same-sex marriage as such. 'She was objecting to having her uncle's time taken by someone else,' she said.
Alito responded that 'we could have a book club and have a debate about how Uncle Bobby's marriage should be understood.'
The parents said they were not seeking to remove the books from school libraries and classrooms, but to shield their children from having to discuss them. (The school system has since withdrawn two of the books, including 'Pride Puppy.' Schoenfeld said that was part of 'the ordinary review process.')
Kavanaugh, who lives in Montgomery County, discussed Maryland's long-standing commitment to religious pluralism with Schoenfeld. 'I guess I'm surprised, given that this is, you know, this is the hill we're going to die on, in terms of not respecting religious liberty,' Kavanaugh said.
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Justice Ketanji Brown Jackson questioned whether judges, as opposed to local school board officials, were better suited to determine what should be part of a public school's curriculum.
'These questions don't always have one answer,' she said. 'Maybe in one community, one set of values, these books are fine, but in another community with a different set about values, they're not. And it's sort of the local process that allows that to cash out where people live, that allow their values to get expressed.'
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