SCOTUS Leans Toward Parental Opt Out From LGBTQ Curriculum

The case arose when a coalition of parents from various religious faiths, including Christian and Muslim, contested a policy change from the Montgomery County Board of Education that no longer requires parents to be informed when the themed instruction will occur, nor allows them to opt their children out. The LGBT instruction includes more than “22 LGBTQ+-inclusive” storybooks infused with radical gender ideology, such as the false idea of “gender transitions,” “Pride parades,” and same-sex romances between minors. The books are used for instruction in pre-K through eighth grade classrooms where some are taught to children as young as three years old. The parents seek to block the cancellation of the opt-out policy by arguing this instruction interferes with their religious beliefs on gender and sexuality as well as their constitutional right to direct the upbringing and education of their children.

Liberty Counsel filed an amicus brief in the case arguing that teaching this curriculum without any ability to opt out compels affirmation of repugnant beliefs, degrades the purity of children, and imposes a penalty on religion by making public education – a government benefit – contingent upon lessons that burden parents’ faith. The Supreme Court is expected to rule no later than the end of June 2025.

The Justices focused many of their questions on the difference between exposure and coercion and whether exposing children to the books was tantamount to influence, or even interference, to the parents’ religious beliefs. Justices Samuel Alito, Clarence Thomas, Neil Gorsuch, Amy Coney Barrett, and Brett Kavanaugh all dove into this aspect scrutinizing the school district’s purpose to curtail opt out for these books in order to influence.

Justice Alito stated there could be debate about how these books can be understood by children, but when a book read in class shows two men getting married it “goes beyond” exposure and “expresses the idea [that] this is a good thing.”

Justice Barrett then reasoned removing the opt-outs could have been to “disrupt” the students’ thinking and make them “not see gender as binary” as to accept LGBTQ relationships.

Attorney Alan Schoenfeld, representing the Montgomery County School Board, indicated it was the board’s purpose to “influence them toward civility” and to teach “mutual respect” toward LGBTQ people without the children needing to have a complete understanding of these relationships.

However, Justices Barrett and Gorsuch asserted the presentation of gender ideology ideas as fact when others think it is “wrong” and “negative” is more than just exposure and enters the realm of “interference.” Justice Gorsuch also noted that teaching these books in English class rather than a Human Sexuality class where opt-outs are available in Montgomery County, and starting these books with pre-K three-year-olds, was seemingly done to “influence.

Schoenfeld also argued that the sheer number of parents opting out of the instruction, even many who were not religious, made any opt-out mechanism unmanageable for the school district.

Justice Kavanaugh, a native of Montgomery County, noted the county “stands alone” in doing something like this. Both Justices Kavanaugh and Alito rejected this argument that it is not feasible to provide opt-outs when there are religious opt-outs for all sorts of other educational instruction.

Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson were vehemently concerned that any injunction in this case would present a mayhem of opt-outs nationwide. Schoenfeld then concluded saying parents have no constitutional right to opt out of offensive material.

However, attorney Eric Baxter representing the plaintiffs, noted that removing the opt-out policy for this offensive material constitutes “substantial interference” to direct the religious upbringing of their children and forces parents to either accept or modify their beliefs to access public education.

The First Amendment demands more, and parents, not school boards, should have the final say on instruction that infringes on religious matters, said Baxter.

In June 2023, more than 1,000 parents came out in person to a Montgomery County school board meeting to protest the addition of the books and the cancellation of the opt-out policy. Many parents testified that the school’s instruction on gender ideology was inconsistent with their respective religious faiths and that young children should not be exposed to it at all. The school board then accused those parents of promoting “hate” and likened them to “white supremacists” and “xenophobes.”

The U.S. Fourth Circuit Court of Appeals upheld the lower court’s decision 2-1 declining to require the school to provide notice or an option for parents to opt out.

Liberty Counsel Founder and Chairman Mat Staver said, “Children do not become wards of the state by merely attending public schools. Parents have the right to direct the education and provide for the welfare of their children. The First Amendment does not allow government schools to require families to sacrifice their religious beliefs for their children to attend school. It is unconstitutional to coerce parents into subjecting their children to propaganda that is antithetical to their beliefs. Parents must be given adequate opportunity to review any instructional material and must be given the ability to opt their children out of instruction that violates their faith.”