How Religious Pluralism Lost at the Supreme Court

Last week, the Supreme Court ruled that the Constitution requires public school districts to allow parents to opt out of any curriculum or instructional material for their child that runs counter to the parents’ religious beliefs. Justice Samuel Alito, writing for a 6–3 majority in Mahmoud v. Taylor, drafted an expansive rule for lower courts to enforce against school districts.

“A government burdens the religious exercise of parents when it requires them to submit their children to instruction that poses ‘a very real threat of undermining’ the religious beliefs and practices that the parents wish to instill,” he wrote for the court, citing the 1972 ruling Wisconsin v. Yoder. “And a government cannot condition the benefit of free public education on parents’ acceptance of such instruction.”

Alito and his colleagues framed the decision as a victory for religious freedom and for the diversity of faiths in America. While the ruling will certainly benefit parents who do not wish to expose their children to certain ideas, I am skeptical that it will be a net positive for American religious pluralism. The decision is instead likely to create a two-tier approach in public schools that will benefit larger religious groups and ostracize smaller ones.

Mahmoud centered around a dispute over LGBTQ-related books in public schools in Montgomery County, Maryland. In 2022, the elected Montgomery County School Board added five books featuring LGBTQ characters to its English curriculum that are designed for pre-K students through fifth graders. The board’s move was driven by its desire to “fully reflect the diversity of [Montgomery County Public Schools] families,” among whom are both LGBTQ students and children raised by LGBTQ parents.

At first, the school district allowed parents to opt out from lessons that included the books, but it changed course after a significant number of parents withdrew their students from class during the lessons, creating major administrative burdens for the schools and teachers. After the district eliminated the opt-out policy during the 2022–2023 school year, a group of Christian and Muslim parents sued the school board to force the policy’s reinstatement on First Amendment religious freedom grounds.

A federal district court judge declined to grant the parents a preliminary injunction, and the Fourth Circuit Court of Appeals agreed. The panel held, in a 2–1 vote, that the record was too “threadbare” to support the courts’ intervention at this stage. The judges noted that the parents had provided no accounts of how the books are actually used by teachers in the classroom, as well as “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.”

Public schools, like any other governmental entity, are generally required to respect their students’ religious beliefs. Teachers obviously cannot coerce students into following religious practices that are not their own. The Fourth Circuit noted that the parents had provided no evidence of coercion in this case, and that neither the parents nor students claimed that they had “been asked to affirm views contrary to their own views on gender or sexuality, to disavow views on these matters that their religion espouses, or otherwise affirmatively act in violation of their religious beliefs.”

The Supreme Court did not really care. It held that the mere presence of the books was enough to justify a court’s intervention. In Yoder, the case cited by Alito, the Supreme Court held that the state of Wisconsin could not require Amish children to attend school beyond the eighth grade, deferring to their parents’ assertions that vocational education at home was a core tenet of their faith.

Alito argued that the opt-out principle in that case could extend far more broadly to all manner of instruction. “The question in cases of this kind is whether the educational requirement or curriculum at issue would ‘substantially interfer[e] with the religious development’ of the child or pose ‘a very real threat of undermining’ the religious beliefs and practices the parent wishes to instill in the child,” he wrote, quoting again from the 1972 ruling.

Alito concluded that since the books espouse a certain point of view—that LGBTQ relationships and questions about gender identity are normal—which ran counter to the parents’ religious beliefs, those parents had the constitutional right to opt out of any instruction involving them. To that end, Alito concluded, “the Board should be ordered to notify [parents] in advance whenever one of the books in question or any other similar book is to be used in any way and to allow them to have their children excused from that instruction.”

The surface-level implication of last week’s ruling is that parents have a constitutional right to opt out their children from any instructional material that might “substantially interfere” with their child’s “religious development.” But it won’t work like that in practice. In a friend-of-the-court brief, the National Education Association warned that adopting the plaintiffs’ theory would “generate endless administrative confusion, impose burdensome unfunded mandates on schools, and mire federal courts in litigation over matters far outside their expertise.”

The Montgomery County School Board noted that it abandoned the opt-out only after it became practically unworkable. Alito responded to the workability arguments with undisguised disdain. “The Board is doubtless aware of the presence in Montgomery County of substantial religious communities whose members hold traditional views on marriage, sex, and gender,” he wrote. “When it comes to instruction that would burden the religious exercise of parents, the Board cannot escape its obligations under the Free Exercise Clause by crafting a curriculum that is so burdensome that a substantial number of parents elect to opt out.”

In short, school districts across the country must now weigh the inclusion of any book featuring LGBTQ characters with the likelihood that it will result in expensive litigation or disruptive opt-outs. The outcome will vary depending on local demographics. Some school boards in less religious communities might conclude that the number of parents who will opt out or sue is small enough that the material is acceptable. But I suspect that most officials will avoid such material rather than risk any confrontations or headaches.

Litigation fears will likely produce a chilling effect on any mention of sexual orientation or gender identity at all by educators. Mentioning Harvey Milk’s assassination in a Bay Area public school without prior notice, for example, could potentially draw a lawsuit from a parent who supports what Alito described as “traditional views on marriage, sex, and gender.” As Vox’s Ian Millhiser noted last week, the court’s ruling amounts to a “Don’t say gay” law for every public school in the nation.

It goes without saying that this will be harmful first and foremost to LGBTQ children and kids with LGBTQ parents, whose very existence is now considered verboten at public schools. One could be forgiven for thinking that this was the point. At the same time, the court’s ruling raises serious concerns for the future of American religious pluralism. Mahmoud, like every Supreme Court ruling, applies beyond its facts.

There is nothing in the court’s ruling that limits its holding to cases involving LGBTQ-related children’s books. It could apply with equal force to lessons about evolution in biology classes, for example, which might offend parents who teach young-Earth creationism to their children. In some states, public school officials are introducing distinctly Christian themes into their classrooms. Oklahoma’s superintendent of schools announced last year that he would be incorporating the Bible into the statewide social studies curriculum.

The court’s conservative justices went out of their way to emphasize that Montgomery County, where some of them reside, is a bastion of religious tolerance and multiculturalism. Alito began his opinion by reciting this diversity in detail. “According to a recent survey, it is also the ‘most religiously diverse county’ in the nation,” he noted. “In addition to hosting a diverse mix of Christian denominations, the county ranks in the top five in the nation in per-capita population of Jews, Muslims, Hindus, and Buddhists. The county’s religious diversity is accompanied by strong cultural diversity as well.”

Justice Brett Kavanaugh, a Montgomery County native, also emphasized the county’s pluralistic nature during oral arguments. “Maryland was founded on religious liberty and religious tolerance, a haven for Catholics escaping persecution in England going back to 1649,” he told Alan Schoenfeld, the lawyer who represented the board. “I’m sure you’re aware of this history. And Montgomery County has been a beacon of that religious liberty for all these years with a strong Catholic population, a substantial Jewish population, lots of different Protestants. I mean, you drive down Connecticut Avenue or Georgia Avenue, you see religious building after religious building. And I guess I’m surprised that this is the hill we’re going to die on in terms of not respecting religious liberty, given that history.”

Montgomery County’s diversity and history of religious tolerance and freedom is laudable. It is also the exception, not the rule. The Maryland county is also one of roughly 4,000 counties across the nation. As Alito himself noted, all but a handful of them are less religiously diverse than Montgomery County. And the issue at hand in Mahmoud—sexual orientation and gender identity—is one that unites members of some different faiths more easily than most topics.

So while the case’s fact pattern will be an outlier in the national experience, the outcome that it imposes will be universal. The ruling is most likely to benefit the majority and plurality faiths in a given school district. Members of those faiths could already influence their local curriculum through the democratic process. But if they were somehow not able to do so, they will now almost certainly be able to shape it through the de facto veto that the Supreme Court has given them. Their power and influence over the rest of the student body is now greatly expanded.

Minority religious communities, on the other hand, will be left with just the opt-out itself. A Jewish family in Oklahoma who does not want their child to be taught about Christianity in public schools, for example, would have to withdraw them from the state’s social studies classes. Receiving that accommodation is now their constitutional right, but it is also a marker of exclusion and difference—one that will not apply equally to all religious communities in this country, and will vary greatly depending on where Americans of different faiths happen to live.

I also have strong doubts based on personal experience that opt-outs create the clean dividing line between “learning” and “not learning” that the court and the litigants all assume. Public schools in Nevada, where I grew up, had the kind of robust weeklong sexual-education lessons that you would expect from that state. We even had one day during the week where kids from our grade were separated into different classes by gender to learn more specific material about the birds and the bees.

For that day, each of us had to bring home forms for our parents to sign so that we could take part. A couple of kids in my circle of friends had parents who opted them out from those gender-specific lessons for religious reasons. Most of us went back to the classroom for the lesson. Those who opted out went to the school cafeteria, I think, to read books or do homework or whatever. The pristine barrier that the justices and the educators and the lawyers imagined throughout this litigation was fully in place. Would you like to guess what we all discussed during the next recess?

The futility of these efforts probably does not matter to the justices. They have crafted a ruling that will drive almost any mention of sexual orientation and gender identity from most public schools. Along the way, they have empowered members of majority faiths to use the threat of legal or administrative chaos to coerce curriculum changes from democratically elected school boards. That sea change will likely swamp any other marginal benefit reaped by minority faiths from the court’s decision. Last week’s decision is a victory for some religious groups, to be sure. But it is not a victory for religious pluralism itself.