The Volokh Conspiracy
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Can a School Require Students to Learn about Sexuality and "Cisnormativity" Over Parents' Religious Objection?
In granting Mahmoud v. Taylor, the Supreme Court has agreed to consider this question.
Today the Supreme Court granted five petitions for certiorari. These cases will either be heard at the end of the term in April, or at the beginning of next term in October. (Hearing them this term would require curtailing the normal briefing schedule.)
Perhaps the highest profile case among today's cert grants is Mahmoud v. Taylor, a case that implicates the religious rights of parents to control (or at least know about) what their children learn in school.
Here is the question presented from the petition for certiorari:
Respondent Montgomery County Board of Education requires elementary school teachers to read their students storybooks celebrating gender transitions, Pride parades, and same-sex playground romance. The storybooks were chosen to disrupt "cisnormativity" and "either/or thinking" among students. The Board's own principals objected that the curriculum was "not appropriate for the intended age group," presented gender ideology as "fact," "sham[ed]" students with contrary opinions, and was "dismissive of religious beliefs." The Board initially allowed parents to opt their kids out—but then reversed course, saying that no opt-outs would be permitted and that parents would not even be notified when the storybooks were read.
Petitioners filed suit, not challenging the curriculum, but arguing that compelling their elementary-age children to participate in instruction contrary to their parents' religious convictions violated the Free Exercise Clause. Construing Wisconsin v. Yoder, the Fourth Circuit found no free-exercise burden because no one was forced "to change their religious beliefs or conduct."
The question presented is:
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?
This case implicates parental rights, but in the context of religious exercise. It also concerns the education and upbringing of one's children, a right which rests more firmly on existing precedent than does a right to medical care of which the state disapproves. The Court's willingness to hear this case is nonetheless extra-interesting because the Court did not grant certiorari for the issue of parental rights in the Skrmetti case, which concerns whether a state may prohibit children from receiving certain medical treatments. Among other things, the ACLU argued that preventing children from receiving medical care that their parents support violates their parents due process rights.
