The Supreme Court’s “Don’t Say Gay” argument went disastrously for public schools

Three years ago, Montgomery County, Maryland, approved several books with LGBTQ characters for use in public school classrooms. Not much else is known about these books, how they have been used, when they were used in lessons, or how teachers plan to use them in the future.

These questions have come before lower courts, but the Supreme Court decided to hear a case — Mahmoud v. Taylor, brought by conservative Muslim and Christian parents who find these books objectionable — before these lower courts had a chance to sort out whether anyone’s constitutional rights have actually been violated.

Despite all this uncertainty, all six of the Supreme Court’s Republicans appeared absolutely convinced, during an oral argument on Tuesday, that the Montgomery County school district violated the Constitution, and that it must do more to protect parents who object to these books on religious grounds. 

Based on Tuesday’s argument in Mahmoud, it seems all but certain the Court will rule that parents who object to these books must be allowed to remove their children from any classes where the books are featured. What is less clear is whether the Court will do so in a way that could endanger every public school in the country’s ability to function.

Eric Baxter, the lawyer representing the parents who oppose these books, seemed quite emboldened during Tuesday’s argument, and advocated for a result that would be extraordinarily disruptive. In his brief, Baxter suggested that parents who object to any form of classroom instruction on religious grounds must be notified in advance about that instruction and be permitted to opt their child out of the class. 

The implications of this argument are breathtaking. As Justice Sonia Sotomayor pointed out, past cases involve parents who object to lessons touching on topics like divorce, interfaith couples, and “immodest dress.” Parents have brought federal lawsuits objecting, on religious grounds, to the government using unique numbers to identify people in its own internal records. They’ve objected to lessons exposing children to ideas about evolution, pacifism, magic, women achieving things outside of the home, and “false views of death” — among other things. 

Under Baxter’s proposed rule, to avoid these lawsuits, school districts would have an obligation to notify parents in advance if they will teach any book where magic exists, any book where divorce exists, any book where women have accomplishments, or any book about famous pacifists such as Martin Luther King, Jr. — among many other things. It is hard to imagine how any public school could comply with such an obligation.

That said, while all six of the Republican justices appeared highly likely to rule against the school district in Mahmoud, some of them did appear to be looking for a way to decide this case more narrowly than Baxter suggested. 

Justice Samuel Alito, for example, suggested at one point that Baxter’s rule might only apply to very young students, or to lessons that touch upon sexuality. Justice Neil Gorsuch pointed to an alleged statement by a school board member, which Gorsuch claims showed animus against certain religious beliefs. Following Gorsuch’s line of thinking to its conclusion would allow the Court to rule that Montgomery County’s policies must be changed because they are rooted in animus, but that another school district might be allowed to enact similar policies so long as they did not display similar hostility toward religion.

So, while there seems to be little doubt that the school district will lose the Mahmoud case, it is possible that it will lose in a way that doesn’t endanger public school instruction throughout the United States.

The Court appeared to divide into four camps

Broadly speaking, the justices floated four different approaches to this case.

All three of the Court’s Democrats — Sotomayor, and Justices Elena Kagan and Ketanji Brown Jackson — focused on the “line-drawing” problems presented by this case. Kagan said she understood how even non-religious parents might object to “young kids” being taught “on matters concerning sexuality,” but she added that there wasn’t anything in Baxter’s argument that would allow the Court to limit claims by parents who want to micromanage a school’s lessons.

Similarly, Jackson was troubled that Baxter’s arguments seemed so broad that they could prevent a gay teacher from displaying a picture of their own wedding, or even prevent a teacher from referring to a transgender child by that child’s preferred pronouns in the presence of another student whose parents object to trans people on religious grounds.

But these concerns were largely limited to the Court’s Democratic minority. The other six justices appeared to be hunting for a way to rule against the school district.

The most extreme of these six Republicans was Justice Brett Kavanaugh, who at one point said that he is “mystified, as a longtime resident” of Montgomery County, that this case exists. As the Supreme Court said in Lyng v. Northwest Indian Cemetery (1988), the First Amendment only prohibits government action that tends “to coerce individuals into acting contrary to their religious beliefs.” But Kavanaugh at one point seemed to propose overruling Lyng and holding that a parent with religious objections to a lesson must only show a “burden” on their faith — however Kavanaugh would define that term.

Both Alito and Chief Justice John Roberts, meanwhile, appeared to think that there is something particularly noxious about exposing young people to books with gay characters. Alito, for example, argued that older students will understand that their teacher isn’t always correct — so it’s okay if those students are exposed to lessons that are in tension with their parents’ religious beliefs. But a different rule should apply to younger students.

Similarly, Roberts argued that it would be “dangerous” to expose kindergarten-age children to lessons their parents might object to, because that might cause those children to question whether they should obey their teacher.

Gorsuch, meanwhile, latched onto several lines in Baxter’s brief, which claim that a school board member compared parents who object to LGBTQ-inclusive literature to “white supremacists” and “xenophobes.” This matters because, in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), the Court ruled in favor of a baker who refused to bake wedding cakes for same-sex couples because a state civil rights commissioner made similarly disparaging comments about the baker.

Under Gorsuch’s approach, in other words, the Court could decide the Mahmoud case very narrowly, ruling in favor of the parents because of this school board member’s alleged comments, without handing down a broader rule that would impose unworkable disclosure rules on every public school in the country.

So it is possible that the Court will hand down a good-for-this-ride-only decision that gives these specific Montgomery County parents the result they want, without harming public education elsewhere. It is also possible that the Court will impose a kind of “Don’t Say Gay” rule on elementary school teachers, while allowing high school teachers to reveal that some people form romantic attachments to people of the same sex.

The Court used to be more cautious about rules that prevent public schools from functioning

One surprising omission in Tuesday’s argument is that no one mentioned the Court’s decision in Tinker v. Des Moines Independent Community School District (1969), a free speech case brought by students who wore black armbands to class in order to protest the Vietnam War.

In Tinker, the Court held that these students had a right to wear the black armbands, but it did so because the students merely engaged in a “silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners.” Tinker held that public school students retain free speech rights, but not when their speech “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”

The Court, in other words, recognized that public schools could not function if students could engage in speech that disrupts lessons, and it crafted a careful rule which respects those students’ First Amendment rights without undercutting the school’s ability to educate them and their classmates.

The Court could take a similar approach in Mahmoud. Because the full facts of this case are not yet known, it may, in fact, turn out that a teacher tried to coerce a student into rejecting their religious beliefs, or otherwise behaved in a manner that violates the Constitution’s protections for religious people. If that turns out to be true, then the courts absolutely should provide appropriate relief to that student and their parents.

But, instead of waiting until they know all the facts of the Mahmoud case and crafting an appropriately tailored rule like the one announced in Tinker, many of the justices seemed inclined to a more ham-handed approach. Based on Tuesday’s argument, it is difficult to guess whether Kavanaugh’s, Alito’s, Gorsuch’s, or some other approach will prevail. But, if the justices choose to accept Baxter’s arguments in full, they could easily impose unworkable obligations on public schools that will prevent them from functioning.