What’s At Stake With The Supreme Court’s LGBTQ+ Schoolbooks Case

When the Supreme Court hears oral arguments on Tuesday, April 22, justices will be answering questions about one of the most contentious topics of conversation today: school curriculum.   

In Mahmoud v. Taylor, six parents—both Catholic and Muslim—seek to opt-out their children from classroom reading of books that have LGBTQ+ characters because they say it violates their First Amendment rights. “We want the Supreme Court to recognize that parents have a right to direct the religious upbringing of their kids,” says Colten Stanberry, counsel at the Becket Fund for Religious Liberty, which is representing the plaintiffs. “This will not be a seismic shift throughout our country.” 

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But advocates say that mere exposure to these characters is not in violation of parents’ rights, and fear that if the Supreme Court grants such exceptions, it will lead to self-censorship in school curriculums and stigmatize queer parents or children. 

Montgomery County Public Schools, where the issue being contested arose, did not reply to TIME’s request for comment.

The lawsuit is one of a set of cases scheduled to be heard this term that could expand religious liberty in education, and arrives as scores of parents seek to boost parental rights, or control over their children’s education. Already, school curriculums have received greater attention due to state ‘Don’t Say Gay’ laws, which bar classroom instruction on gender and sexuality. Such laws have passed in Florida, Ohio, and at least seven other states, according to the Movement Advancement Project.   

While the case alone does not constitute a book ban, PEN America, an organization that champions the freedom to write and express ideas, filed an amicus brief in favor of the respondents, asking the nation’s highest court to consider the case against the backdrop of the 10,000 book bans that have been recorded in the 2023-2024 school year. A quarter of those books featured LGBTQ+ people, the organization found.

Here’s what to know.

Why was the case brought forward? 

Montgomery County is the nation’s most religiously diverse county and the largest in the state of Maryland. 

At the start of the 2022-2023 school year, Montgomery County Public Schools added a set of LGBTQ+ storybooks to its classroom curriculum for children from prekindergarten to the 12th grade to promote “equity, respect, and civility,” according to the schools’ court brief. The books were not meant to be used to teach about gender and sexuality, but instead were made available for students’ own reading, classroom read-alouds, or other activities. 

Among others, the books under question feature a puppy getting lost at a Pride parade, and a girl nervous to give a valentine to her crush, who happens to be the same sex as her. The school contends that while it initially permitted opt-out policies to exempt students from hearing the book read aloud, the increasing number of requests led to “high student absenteeism, the infeasibility of administering opt-outs across classrooms and schools, and the risk of exposing students who believe the storybooks represent them and their families to social stigma and isolation,” per court documents. Such concerns prompted a policy change in March 2023, barring any opt-out measures for these books.

In May 2023, parents sued alleging that their rights had been infringed upon.  

Stanberry says that plaintiff parents are not asking the school to change the curriculum, but want accommodations to exempt their children from any instruction concerning gender and sexuality, which includes the LGBTQ+ community. “If they discover those areas of the curriculum that are contrary to beliefs, they can raise their hand and say, ‘Hey, can I step out of the classroom for a minute?’” says Stanberry. 

The trial court and Court of Appeals ruled in favor of Montgomery County in May 2024, the latter of which found that there has been no record of how “any teacher or school employee has actually used any of the Storybooks in the Parents’ children’s classrooms, how often the Storybooks are actually being used, what any child has been taught in conjunction with their use, or what conversations have ensued about their themes.”

An amicus brief filed in March by several organizations that represent state school board associations and administrators argues that the types of opt-outs parents are considering would lead to broader chaos in the classroom. Opt-outs from certain holiday celebrations are a “far cry from constitutionally mandating that schools allow parents to prevent their children from being exposed to any reference to these holidays around the classroom,” the brief says. “Teachers could be prevented from reading books referencing the existence of divorced or same-sex parents to children whose parents’ religions do not condone those family structures.”

“This isn’t a sex education class,” says Eileen Hershenov, chief legal officer and deputy CEO of PEN America. “These are books that are teaching learning comprehension and reading showing a family and some activity. A family here in some of these books is two dads, or two moms, or a kid who has a crush on another kid who’s the same sex…You’re talking about reading comprehension, but showing the kind of families and contexts that all of these kids are going to grow up into, and that in fact, are already in their very own district.”

The history of religious freedom court cases

The issue of religion in public schools has a long history in the courts. Nelson Tebbe, a law professor at Cornell Law School, says that typically, religious opt-out claims regarding evolution, for instance, have been consistently defeated in the courts. “The long standing settlement is that religious parents don’t have a right to opt out of elements of the public school curriculum that they disagree with,” says Tebbe. “One way of putting this is that your mere exposure to ideas is not itself considered a burden on religion under these precedents. There has to be something more tangible than that.” 

Plaintiffs argue that the Maryland case hinges on the 1972 Wisconsin v. Yoder lawsuit brought forward by Amish parents who were seeking exemptions from Wisconsin state law that required all students to attend public school until age 16. The parents, who were prosecuted by the law, argued that sending their children to school after grade eight infringed on their religious beliefs. 

The Supreme Court unanimously agreed, ruling that the family’s First Amendment rights were being infringed upon because the additional schooling was “in sharp conflict with the fundamental mode of life mandated by the Amish religion,” Chief Justice Warren E. Burger said in his opinion. 

“Yoder is about the parents’ right to control the religious education of their children,” says Douglas Laycock, University of Virginia Law professor who specializes in religious liberty. But Tebbe says that the case differs from the Maryland case in that it focuses on a general release from public education as a whole, as opposed to opt-outs from specific parts of classroom instruction. 

In Parker v. Hurley, a court ruled in 2008 that schools did not violate parents’ or students’ free exercise rights—allowing them to freely practice their religion—by introducing children to materials seeking to increase the tolerance of queer couples. And in Pierce v. Society of Sisters, in 1925 the Supreme Court set out a rule that parents have a constitutional right to pull their kids out of public school and send them to private school if they object to elements of the public school curriculum. Tebbe says that this was the general compromise the nation’s highest court came up with for religious parents who did not want a specific type of instruction for their child. 

But other Supreme Court cases make the potential outcome of this week’s case even murkier. 

Plaintiffs cite the 2018 Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the court ruled in favor of a baker who did not want to make a cake for a same-sex couple. Part of the reason why the justices ruled in their favor had to do with “religious animus,” or anti-religious comments made by state officials. The Becket Fund is claiming in this new case that comments made at a school board meeting constitute that religious animus. “There’s a basic idea in American law that judges should be neutral,” says Tebbe. But unlike the state officials in the 2018 case, “the school board is not acting in an adjudicatory capacity.”

How will the court rule?

While justices could decide to send the case back to the lower courts to tell them to apply a specific standard, recent rulings on issues concerning religious freedom point towards the likelihood that the justices will rule in favor of the plaintiff parents, according to both Tebbe and Laycock. 

The scope of the court’s decision could make an impact. Justices may decide that school board comments do constitute religious animus and rule in favor of plaintiffs, which would specifically change the opt-out policy at Montgomery Public Schools. 

But a broader decision by the Supreme Court could allow religious families all over the country to file opt-out claims and broaden parental rights. 

“The school board and its supporters say there’s just gonna be chaos,” says Laycock. “But there’s no proof at this point that the opt outs are so unworkable that the school board has a compelling interest in saying no.” Compelling interest is a strict standard that must be met in order to create an exception to a subject’s First Amendment rights. 

In order to file a free exercise claim, however, plaintiffs have to prove that there is a real measure of coercion that attempts to steer kids into adopting a certain belief. 

What are the broader repercussions? 

Advocates in favor of the school district argue that teachers and administrators aren’t forcing students to go against their religious beliefs. PEN America says they fear a decision in favor of plaintiffs will “turbocharge book bans.” And they add that opt-out policies for LGBTQ+ books stigmatizes children and families who identify as a part of that community. 

Stanberry denies that the opt-outs for this sort of instruction will be wide-ranging. “The state has an interest in getting people ready to be members of society, but we just don’t think that this type of instruction in elementary school forwards that interest,” says Stanberry, specifically referring to gender identity and sexuality. 

“It seems like the court is implementing a program of really changing our law around the constitutional rules for religious freedom, both by strengthening free exercise claims—the claim that people have to be exempt from general law and general regulations, and also on the establishment clause side,” says Tebbe. The establishment clause prohibits the government from establishing its own religion, or favoring one religion over another.  

Still, it’s possible the court draws the line for this case. “You don’t get an exemption from the public school curriculum,” says Tebbe, “just because you disagree with the idea that the teachers are putting forward to students.”