During oral arguments, Supreme Court seems to support parental opt-outs for LGBT coursework

 

Washington, D.C. Newsroom, Apr 22, 2025 / 17:56 pm (CNA).

During oral arguments Tuesday, most of the justices on the United States Supreme Court appeared sympathetic toward parents in their lawsuit against a Maryland school board that refused to let them opt their children out of coursework that promotes gender ideology.

Catholic, Ethiopian Orthodox, and Muslim parents sued the Montgomery County Board of Education in May 2023 after the body ended its policy of notifying parents of coursework promoting homosexuality and transgenderism and allowing the parents to opt out.

Under the current policy, the school board only permits opt-outs in narrow circumstances, which is mostly related to sexual education in health class. It does not permit opt-outs for coursework that endorses the views that there are more than two genders, that a boy can become a girl, or that homosexual marriages are moral.

Some of the coursework initially introduced in the curriculum was designed to promote these concepts to children as young as 3 years old in preschool.

Eric Baxter, senior counsel for the Becket Fund for Religious Liberty, represented the parents before the Supreme Court on April 22. He argued the school board’s policy violates the First Amendment of the Constitution by “indoctrinating” students about values that conflict with the religious beliefs of his clients.

“There’s no basis for denying opt-outs for religious reasons,” Baxter said. “… Parents, not school boards, should have the final say on such religious matters.”

He said that under the policy, there are “children of an extremely young age being indoctrinated in a topic that’s known to be sensitive.” He said it’s “designed to disrupt students’ … thinking on sexuality and gender identity.”

Alternatively, the school board’s lawyer, Alan Schoenfeld, acknowledged that these concepts are “deeply offensive to some people of faith” but said parents have no First Amendment right to opt children out of “learning about them.”

Schoenfeld said “the board wants to teach civility and respect for difference in the classroom” and, through that, “there is obviously an incidental message in some of these books that these life choices and these lifestyles are worthy of respect.”

“Incidental messages that these things ought to be normalized and treated with respect, I think, is simply part of the work that the school is doing in cultivating respect in a pluralistic school,” he added.

Most justices bothered by forced curriculum

The Republican-appointed justices, who account for six of the nine members of the court, expressed concern with the policy during oral arguments and appeared supportive of parents who want to opt their children out of the coursework.

“I guess I am a bit mystified, as a lifelong resident of the county, how it came to this,” Justice Brett Kavanaugh told Baxter during the oral arguments.

Kavanaugh repeatedly grilled Schoenfeld on why the board could not provide opt-outs, noting that the county previously had an opt-out, and “every other school board in the country has opt-outs for all sorts of things.”

Schoenfeld said the opt-outs ceased to be feasible because of the high rates of parents opting their children out in some schools and the inability to secure spaces and supervision for all of the children opted out of the coursework.

Justice Amy Coney Barrett noted that some of the instruction materials given to teachers on the subjects are “not just exposure to the idea” but rather a “presentation of the idea as fact.”

“It’s saying ‘this is the right view of the world, this is how we think about things, this is how you should think about things,’” Barrett added. “This is like ‘two plus two is four.’”

“We have the books being read in the classroom,” she said. “It’s not mere exposure.”

Barrett pressed Schoenfeld on numerous support materials given to teachers to help instruct students on these matters, which included telling the children that “people of any gender can like whoever they like” and that “when we’re born, people make a guess about our gender and label us ‘boy’ or ‘girl’ based on our body parts — sometimes they’re right; sometimes they’re wrong.”

“So it was part of the curriculum to teach them that boys can be girls or that your pronouns can change depending on how you feel one day to the next,” Barrett said. “That was part of the goal?”

Schoenfeld said the materials “are to help a teacher answer a student’s questions” and to explain concepts like homosexuality and transgenderism but argued that the material is not a “script” and that children are not forced to affirm those statements.

At one point during oral arguments when Schoenfeld argued that the children do not have to agree with the material in the book or the statements by teachers, Chief Justice John Roberts interjected to say: “Is that a realistic concept when you’re talking about a 5-year-old?”

Justice Samuel Alito specifically referenced one of the books, called “Uncle Bobby’s Wedding,” which he said “has a clear moral message” promoting a homosexual marriage and a scene in which the mother of a girl instructs her: “You shouldn’t have any reservations about this.”

“The book has a clear message and a lot of people think it’s a good message and maybe it is a good message, but it’s a message that a lot of people that hold on to traditional religious beliefs don’t agree with,” Alito said. “I don’t think anybody can read that and think, ‘Well this is just telling children that there are occasions when men marry other men.’”

Justice Neil Gorsuch expressed concern that the coursework is “being used in English language instruction at age 3,” adding that it appears to be designed “to influence students.”

Schoenfeld suggested it is only meant to influence the children on “civility.”

Where to draw the line

Some of the justices who were appointed by Democrats, which are three of the nine members, expressed concerns about constitutionalizing the issue and that acknowledging a broad constitutional right for opt-outs could produce lawsuits on a variety of subjects.

Justice Ketanji Brown Jackson, for example, said there are “a lot of sincerely held beliefs” and asked Baxter whether an “opt-out” proclamation from the Supreme Court could apply to a student objecting to having a transgender classmate or a gay teacher displaying a photo of his same-sex wedding.

“This is not just about books,” Jackson said. “This is about exposure to people of different sexual orientations and the sincerely held objection that children shouldn’t be exposed to this.”

Baxter said, however, that a student cannot tell a teacher what to say or object to a transgender classmate under the “opt-out” policies that his clients are requesting.