Supreme Court, Fracas over LGBTQ+ books in classroom

It was a combative day at the U.S. Supreme Court Tuesday (April 22), as the justices wrestled over whether parents of four elementary school-aged children in a Maryland public school should be able to opt out their students from English lessons that incorporate stories about LGBTQ+ people.

Early on in the two-plus-hour-long argument, Justice Samuel Alito misrepresented the content of a book called Uncle Bobby's Wedding, in which a little girl's favorite uncle announced he was marrying Jamie, another man. Everyone in the family was happy and smiling —except the little girl, Chloe.

Alito, preparing to pose a question, recounted the story and then remarked, somewhat gravely, that "everyone accepts this, except for the little girl, Chloe, who has reservations about it."

"Wait a minute," interrupted Justice Sonia Sotomayor, understanding that Alito's remark could suggest to some that the little girl was upset. "The reservation is about—."

"Can I finish, please?" asked Alito. Chief Justice John Roberts gave him the nod.

Alito and the attorney for the parents in this case kept going.

Later, Alito characterized several of the LGBTQ+ storybooks as being about "sex and gender," adding that, as such, they "raise special concerns." Sotomayor jumped in again to correct the record.

"In Uncle Bob's Wedding, the character, the child character, wasn't objecting to same-sex marriage," said Sotomayor. "She was objecting to the fact that marriage would take her uncle away from spending more time with her."

The fact that the Supreme Court took this case —which is still in a preliminary injunction phase— and gave it more than two hours argument time during a session that has been bombarded with Trump legal emergencies strongly suggests that the justices consider this an important showdown. As such, gloves were off, and facts were blurred.

For instance, the first sentence of the argument, delivered by Eric Baxter, attorney for the parents, was this:
"Parents everywhere care about how their young children are taught sexuality and gender identity." That is a true statement, generally. But it was not true about the case at court Tuesday. Later, Baxter claimed that including LGBTQ-related books in an English curriculum, "was clearly indoctrinating students in things that the principal said was introducing things as fact that aren't fact."

Rendering things LGBTQ+ as being about "sexuality" and "indoctrinating" is the right-wing's preferred language. But the actual concern before the court was Montgomery County's decision to include several LGBTQ+ children's books as part of the English curricula at the elementary school level. But here is how Baxter and the Supreme Court summarized the legal question before the court (emphasis added): "Do public schools burden parents' religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents' religious convictions and without notice or opportunity to opt out?

The lawsuit, Mahmoud v. Taylor, was filed by lead plaintiff Tamer Mahmoud and five other parents, seeking to force the Montgomery County Public Schools, including Superintendent Thomas Taylor, to provide a notification and opt out option when teaching elementary age students curricula that includes storybooks with LGBTQ+ characters.

The parents say books with LGBTQ+ characters have messages that "contradict their sincerely held religious beliefs about marriage, human sexuality, and gender." By not providing an opt-out option, the parents said, the schools are in violation of the First Amendment. They asked the district court for a preliminary injunction to require the school to give them advanced notice and the ability to opt their children out of classroom activities that involve the storybooks or matters relating to family life and human sexuality.

Judge Deborah Boardman of the U.S. District Court for Maryland denied the parents' request for a preliminary injunction before the case could be resolved on the merits of the case.

"The plaintiffs have not shown the no-opt-out policy likely coerces them to violate their religious beliefs," wrote Boardman, therefore, they did not meet the requirements for a preliminary injunction.
Boardman noted that "Every court that has addressed the question has concluded that the mere exposure in public school to ideas that contradict religious beliefs does not burden the religious exercise of students or parents."

The parents then appealed to the Fourth Circuit U.S. Court of Appeals. In a 2 to 1 decision, the appeals panel said, "what is missing here is the evidentiary link showing that the Storybooks are being implemented in a way that directly or indirectly coerces the Parents or their children to believe or act contrary to their religious faith." The panel majority affirmed the district court decision.

Rather than return to district court to present some evidence and argue the merits of the First Amendment claims, the parents —aided by the Becket Fund for Religious Liberty— appealed the loss of the preliminary injunction to the U.S. Supreme Court.

In its brief to the Supreme Court, Lambda Legal, PFLAG, and the Leadership Conference Education Fund said that the storybooks with LGBTQ+ characters help create a safe and supportive school environment where all students can thrive. In a separate brief, GLAD (GLBTQ Legal Advocates & Defenders), the National Center for Lesbian Rights, the Human Rights Campaign, and several other groups note that the LGBTQ+ books are very similar to other books included without objection in the curriculum.

"The plot of Uncle Bobby's Wedding is nearly identical to another book in the elementary English language curriculum, Uncle Peter's Amazing Chinese Wedding, which also tells of a young girl who is saddened that her favorite uncle is marrying," noted the groups.

The attorneys general of 24 states lined up behind the parents, including Florida, Georgia, Texas, and Virginia. Attorneys general of Maryland and 17 states and D.C. submitted a brief in support of the Montgomery County schools, including California, Illinois, Massachusetts, Michigan, and New Jersey.

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