Free Exercise Clause Rights to Opt Children Out of Public School Lesson That "Substantially Interfer[e]" with Their Children's "Religious Development"

[1.] The Supreme Court has been debating the meaning of the Free Exercise Clause for over 60 years. One view has been that the Clause generally gives religious objectors a presumptive right to be exempted from generally applicable laws, such as from bans on using peyote, requirements that one provide one’s child’s social security number to get various welfare benefits, requirements to provide certain health insurance to one’s employees, and anything else that might conflict with one’s religious beliefs.

This right was just a presumption, which the government could rebut if it has a strong enough reason. And indeed the presumption was often found to have been rebutted, in cases involving draft laws, tax laws, antidiscrimination laws, child labor laws, and more. But the presumption, though not very strong, was broad: It applied to a wide range of religious practices. Historically, that view had been associated mostly with the liberals on the Court, such as Justices Brennan and Marshall. The leading precedent here was Sherbert v. Verner (1963), written by Justice Brennan.

The opposite view has been that the Clause only forbids discrimination targeting religious believers or practices (such as laws that ban religious animal sacrifice but allow virtually identical secular killing of animals, or laws that exclude religious schools from various benefit programs that are offered to secular private schools). Historically, that view had been associated mostly with the conservatives on the Court, such as Justice Scalia and Chief Justice Rehnquist. The leading precedent here was Employment Division v. Smith (1990), written by Justice Scalia.

Curiously, the ideological polarity on this matter has flipped in recent years, with the Court’s conservatives generally endorsing the traditional Brennan/Marshall view, and the liberals generally endorsing the Scalia/Rehnquist view. It looked, from cases such as Fulton v. City of Philadelphia (2021), like there were at least five votes on today’s Court to bring back the broad-exemption-rights view.

But in today’s Mahmoud v. Taylor, the conservative majority took a different approach: Rather than discussing government actions that interfere with religiously motivated behavior generally, it focused on a particular kind of government action—educational rules that substantially interfere with parents’ ability to “direct the religious upbringing of their” children. And while this is just a narrowly defined Free Exercise Clause right (focused just on interference with religious upbringing), the protection appears to be quite strong.

In this respect, the right recognized here is structurally similar to another narrowly defined Free Exercise Clause right, seen in cases such as Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (2012) and Our Lady of Guadalupe School v. Morrissey-Berru (2020)—there, a right of religious institutions to choose their religious leaders and religious teachers, free of antidiscrimination rules. That too was a narrow right, focused on one particularly important facet of religious life; but it was a strongly protected right, within this narrow scope.

[2.] Mahmoud involved the Montgomery County (Maryland) Board of Education’s decision to “introduce[] a variety of ‘LGBTQ+-inclusive’ storybooks into the elementary school curriculum,” with no possibility of parental opt-out. According to the evidence cited by the majority, “These books—and associated educational instructions provided to teachers—are designed to ‘disrupt’ children’s thinking about sexuality and gender,” and to inculcate particular beliefs about sexual orientation and gender identity:

As one email sent by MCPS principals reflects, the Board selected the books according to a “Critical Selection Repertoire” that required selectors to review potential texts and ask questions such as: “Is heteronormativity reinforced or disrupted?”; “Is cisnormativity reinforced or disrupted?”; and “Are power hierarchies that uphold the dominant culture reinforced or disrupted?” …

A few short descriptions will serve to illustrate the general tenor of the storybooks. Intersection Allies tells the stories of several children from different backgrounds, including Kate, who is apparently a transgender child. One page shows Kate in a sex-neutral or sex-ambiguous bathroom, and Kate proclaims: “My friends defend my choices and place. A bathroom, like all rooms, should be a safe space.”  Intersection Allies includes a “Page-By-Page Book Discussion Guide” that asserts: “When we are born, our gender is often decided for us based on our sex …. But at any point in our lives, we can choose to identify with one gender, multiple genders, or neither gender.” The discussion guide explains that “Kate prefers the pronouns they/their/them” and asks “What pronouns fit you best?” (boldface in original). [Several other examples omitted. -EV]

Several parents challenged the refusal to provide an opt-out, because they viewed those positions as contrary to the religious beliefs that they were trying to teach their children. To focus on the lead plaintiffs,

Mahmoud and Barakat are Muslims who believe “that mankind has been divinely created as male and female” and “that ‘gender’ cannot be unwoven from biological ‘sex’—to the extent the two are even distinct—without rejecting the dignity and direction God bestowed on humanity from the start.” Mahmoud and Barakat believe that it would be “immoral” to expose their “young, impressionable, elementary-aged son” to a curriculum that “undermine[s] Islamic teaching.”  And, in their view, “[t]he storybooks at issue in this lawsuit … directly undermine [their] efforts to raise” their son in the Islamic faith “because they encourage young children to question their sexuality and gender … and to dismiss parental and religious guidance on these issues.”

[3.] The Court identified parents’ right to direct their children’s religious upbringing, relying mostly on Wisconsin v. Yoder (1972):

Under our precedents, the government is generally free to place incidental burdens on religious exercise so long as it does so pursuant to a neutral policy that is generally applicable. Employment Division v. Smith…. [But] in Smith, we recognized … that the general rule did not apply in Wisconsin v. Yoder because of the special character of the burden in that case…

Yoder concerned a Wisconsin law that required parents to send their children to public or private school until the age of 16. Respondents … were members of Wisconsin’s Amish community who refused to send their children to public school after the completion of the eighth grade. In their view, the values taught in high school were “in marked variance with Amish values and the Amish way of life,” and would result in an “impermissible exposure of their children to a ‘worldly’ influence in conflict with their beliefs.”

In response, this Court observed that formal high school education would “plac[e] Amish children in an environment hostile to Amish beliefs … with pressure to conform to the styles, manners, and ways of the peer group” and that it would “tak[e] them away from their community, physically and emotionally, during the crucial and formative adolescent period of life.” “In short,” the Court concluded, “high school attendance … interposes a serious barrier to the integration of the Amish child into the Amish religious community.”

In Yoder, … there was no suggestion that the compulsory-attendance law would compel Amish children to make an affirmation that was contrary to their parents’ or their own religious beliefs. Nor was there a suggestion that Amish children would be compelled to commit some specific practice forbidden by their religion. Rather, the threat to religious exercise was premised on the fact that high school education would “expos[e] Amish children to worldly influences in terms of attitudes, goals, and values contrary to [their] beliefs” and would “substantially interfer[e] with the religious development of the Amish child.”

That interference, the Court held, violated the parents’ free exercise rights. The compulsory-education law “carrie[d] with it precisely the kind of objective danger to the free exercise of religion that the First Amendment was designed to prevent” because it placed Amish children into “an environment hostile to Amish beliefs,” where they would face “pressure to conform” to contrary viewpoints and lifestyles.

As our decision in Yoder reflects, the question whether a law “substantially interfer[es] with the religious development” of a child will always be fact-intensive.  It will depend on the specific religious beliefs and practices asserted, as well as the specific nature of the educational requirement or curricular feature at issue.

Educational requirements targeted toward very young children, for example, may be analyzed differently from educational requirements for high school students. A court must also consider the specific context in which the instruction or materials at issue are presented. Are they presented in a neutral manner, or are they presented in a manner that is “hostile” to religious viewpoints and designed to impose upon students a “pressure to conform”?

And the majority extended this principle beyond just a right to be excused from compulsory education (as in Yoder) to a right to potentially opt out from particular topics within a public school:

Due to financial and other constraints, … many parents “have no choice but to send their children to a public school.” As a result, the right of parents “to direct the religious upbringing of their” children would be an empty promise if it did not follow those children into the public school classroom.

{[W]hen the government chooses to provide public benefits, it may not “condition the availability of [those] benefits upon a recipient’s willingness to surrender his religiously impelled status.” … Public education is a public benefit, and the government cannot “condition” its “availability” on parents’ willingness to accept a burden on their religious exercise.} …

[4.] The majority concluded that the school’s mandatory curriculum “substantially interferes with the religious development of [the challengers'] children and imposes the kind of burden on religious exercise that Yoder found unacceptable”:

Like many books targeted at young children, the books are unmistakably normative [in support of certain views about same-sex marriage and about gender identity]…. These books carry with them “a very real threat of undermining” the religious beliefs that the parents wish to instill in their children…. That “objective danger” is only exacerbated by the fact that the books will be presented to young children by authority figures in elementary school classrooms. As representatives of the Board have admitted, “there is an expectation that teachers use the LGBTQ-Inclusive Books as part of instruction,” and “there will be discussion that ensues.”

The Board has left little mystery as to what that discussion might look like. The Board provided teachers with suggested responses to student questions related to the books, and the responses make it clear that instruction related to the storybooks will “substantially interfer[e]” with the parents’ ability to direct the “religious development” of their children. In response to a child who states that two men “can’t get married,” teachers are encouraged to respond “[t]wo men who love each other can decide they want to get married …. There are so many different kinds of families and ways to be a family.” If a child says “[h]e can’t be a boy if he was born a girl,” the teacher is urged to respond “that comment is hurtful.”  If a child asks “What’s transgender?”, it is suggested that the teacher answer: “When we’re born, people make a guess about our gender …. Sometimes they’re right and sometimes they’re wrong.” …

{[We thus] cannot accept the Board’s characterization of the “LGBTQ+-inclusive” instruction as mere “exposure to objectionable ideas” or as lessons in “mutual respect.” … We similarly disagree with the dissent’s deliberately blinkered view that these storybooks and related instruction merely “expos[e] students to the ‘message’ that LGBTQ people exist” and teach them to treat others with kindness.} …

[The dissent] suggests that the parents in this case have no legitimate cause for concern because enforcement of the Board’s policy would not prevent them from “teach[ing] their religious beliefs and practices to their children at home.” … According to the dissent, parents who send their children to public school must endure any instruction that falls short of direct compulsion or coercion and must try to counteract that teaching at home. The Free Exercise Clause is not so feeble….

[5.] Finally, the majority provided strong protection for this religious exemption right, by treating it as quite difficult for the government to overcome:

To survive strict scrutiny [applicable under this facet of the Free Exercise Clause], a government must demonstrate that its policy “advances ‘interests of the highest order’ and is narrowly tailored to achieve those interests.” In its filings before us, the Board asserts that its curriculum and no-opt-out policy serve its compelling interest in “maintaining a school environment that is safe and conducive to learning for all students….

We do not doubt that, as a general matter, schools have a “compelling interest in having an undisrupted school session conducive to the students’ learning.” But the Board’s conduct undermines its assertion that its no-opt-out policy is necessary to serve that interest…. [T]he Board continues to permit opt outs in a variety of other circumstances, including for “noncurricular” activities and the “Family Life and Human Sexuality” unit of instruction, for which opt outs are required under Maryland law. And the Board goes to great lengths to provide independent, parallel programming for many other students, such as those who qualify as emergent multilingual learners (EMLs) [about 1/4 of Montgomery county students] or who qualify for an individualized educational program [about of 1/8 of students]. This robust “system of exceptions” undermines the Board’s contention that the provision of opt outs to religious parents would be infeasible or unworkable….

Nor can the Board’s policies be justified by its asserted interest in protecting students from “social stigma and isolation.” … [T]he Board cannot purport to rescue one group of students from stigma and isolation by stigmatizing and isolating another. A classroom environment that is welcoming to all students is something to be commended, but such an environment cannot be achieved through hostility toward the religious beliefs of students and their parents….

Several States across the country permit broad opt outs from discrete aspects of the public school curriculum without widespread consequences. And prior to the introduction of the “LGBTQ+-inclusive” storybooks, the Board’s own “Guidelines for Respecting Religious Diversity” gave parents a broad right to have their children excused from specific aspects of the school curriculum. These facts belie any suggestion that the provision of parental opt outs in circumstances like these “will impose impossible administrative burdens on schools.” …

I hope to have more about this case soon. (Among other things, Prof. Justin Driver and I filed an amicus brief urging the opposite result from the one the majority adopted, and I’ll want to say a bit more about that.) But for now, I just wanted to quickly explain what the Court held and why.

Eric Baxter (Becket Fund) argued on behalf of the challengers, and Sarah M. Harris (U.S. Solicitor General’s office) argued in support of the challengers on behalf of the federal government.

The post Free Exercise Clause Rights to Opt Children Out of Public School Lesson That “Substantially Interfer[e]” with Their Children’s “Religious Development” appeared first on Reason.com.

Source: https://reason.com/volokh/2025/06/28/free-exercise-clause-rights-to-opt-children-out-of-public-school-lesson-that-substantially-interfere-with-their-childrens-religious-development/