The Supreme Court didn’t set out to host a book club on Tuesday, but at times, its debate on religious freedom protections in public schools felt better suited for an English class than a courtroom.
Justices Samuel Alito and Sonia Sotomayor, in particular, wrestled with the themes and central message of a children’s book called “Uncle Bobby’s Wedding” as they considered whether religious parents should be able to opt their kids out of certain language arts lessons.
The book, which is one of several that sparked the case the Supreme Court was hearing, features a little girl named Chloe who is upset about her favorite uncle getting married.
Alito and Sotomayor agreed that the book shows Chloe’s family encouraging her to be happy for Uncle Bobby and his same-sex partner. But only Alito thought the plot raised religious freedom concerns.
“Chloe ... has reservations about (the marriage) and she’s told she shouldn’t have any reservations about it. That’s a clear moral message. It’s a clear moral message ... that a lot of religious people would disagree with,” he said.
Sotomayor, on the other hand, argued that Uncle Bobby’s sexuality wasn’t central to the story. The point was that Chloe was worried about him having less time for her, she said.
The Supreme Court’s eventual ruling in Mahmoud v. Taylor may not mention “Uncle Bobby’s Wedding” by name. But it likely will hinge on how many justices adopt Alito’s point of view that it’s possible for a story with a gay or transgender character to substantially burden someone’s faith.
Mahmoud v. Taylor stems from a conflict between the Montgomery County Board of Education in Maryland and a group of Muslim, Jewish and Christian parents with kids in some of the district’s elementary schools.
The parents filed the lawsuit after school officials took away the option of opting out of its inclusive storybook program. Parents say opt outs are required by the First Amendment’s free exercise clause since classroom discussions on LGBTQ issues interfere with the religious messages they’re seeking to pass on to their kids.
School officials reject that claim, arguing that families don’t have a First Amendment right to avoid stories with LGBTQ characters. The goal of books like “Uncle Bobby’s Wedding” is to encourage respect for one’s neighbor, not to influence readers’ beliefs about marriage, they say.
The lower courts refused to grant the parents a preliminary injunction, which is why they sought help from the Supreme Court. The justices agreed to take up the case and consider whether the school district must restore its original opt out option.
Here are three key questions that emerged during oral arguments on Tuesday:
Can children’s books create a religious freedom problem?
Three words came up again and again during Tuesday’s debate: coercion, exposure and burden.
All three were used as the justices attempted to sort out whether the storybooks actually interfere with parents’ religious freedom rights or if, instead, the parents are being too sensitive about references to LGBTQ issues.
The court’s three more liberal justices repeatedly challenged the parents’ interpretation of past rulings on the First Amendment, arguing that hearing stories about gay or transgender characters is quite different than being coerced into changing your beliefs.
“Haven’t we made very clear that mere exposure to things that you object to is not coercion?,” Sotomayor asked at one point.
By comparison, the more conservative justices seemed much more willing to see the storybook program as a burden on the free exercise of religion. They pushed the attorney for the school district to explain why the option of opting out is now off the table.
Justice Brett Kavanaugh went so far as to imply that the district had abandoned a win-win situation.
Would restoring the opt-out option cause curriculum chaos nationwide?
Alan Schoenfeld, the attorney for the school district, said the opt outs were unsustainable, since some schools were having to come up with alternate activities for dozens of students at a time.
If the Supreme Court rules for the religious parents, that challenge will spread to school districts across the country essentially overnight, he said, since such a ruling would empower parents to ask for opt outs from all sorts of lessons.
“Once this court constitutionalizes that prerogative, you’re in a completely different world,” Schoenfeld said.
The more liberal justices seemed to agree that a ruling for the parents would push the country down a slippery slope and lead to future lawsuits about whether teachers need to seek parental approval before they talk about anything faith-related, like interfaith marriage, divorce or even women in power.
“Tell me where you’re going to draw the line,” Sotomayor said to the attorney representing the religious parents, Eric Baxter from Becket.
Baxter said the lawsuit is about restoring the status quo, not creating chaos nationwide. School districts across the country allow families to opt out of lessons related to gender and sexuality without facing curriculum disruptions, he said.
Baxter added that, even if the Supreme Court forces Montgomery County to reinstate the opt out option, there would still be a limit on what religious families could demand.
“No student has the right to tell a school what to teach or to tell other students what to learn,” he said.
When do religious beliefs become discriminatory?
Although it was only briefly discussed on Tuesday, the justices will be wrestling with the school district’s attitude toward religious families as they put together the ruling in the case, which is expected by early July.
Baxter said some school board members made unacceptable, anti-religious comments when they faced pushback over the storybook program, the kind of comments that often come up when someone raises religious freedom concerns about policies on LGBTQ rights.
“The board accused them of using their religious beliefs as a reason to hate,” Baxter said.
Schoenfeld acknowledged that some “intemperate” language was used, although he said the comments came after the opt out policy was changed.
The justices’ views on the comments — and beliefs about when they were made — may end up being significant.
In some recent religious freedom cases, including Masterpiece Cakeshop, the 2018 case about a Christian baker in Colorado, the Supreme Court has based its ruling on public officials’ attitudes toward religion instead of answering the constitutional question that was raised.