Mahmoud v. Taylor

Issues

Does a public school burden a family’s religious exercise when it requires elementary school children to participate in instruction on gender and sexuality, against the family’s religious convictions, without notice or opportunity to opt out?

Oral argument:
April 22, 2025
Court below:
United States Court of Appeals for the Fourth Circuit

This case asks whether a public school violates the Free Exercise Clause when it includes books containing LGBTQ characters in its curriculum and does not allow families to exempt their children’s exposure to such books on religious grounds. Petitioners argue that their children’s exposure to books that contain LGBTQ characters and themes burdens their religious exercise and that their claims should be examined under strict scrutiny, a rigorous standard of review. Respondents counter that free exercise claims must be supported by evidence of coercion, not mere exposure to ideas that go against one’s religion, and that their actions need only meet a rational basis standard of review. This case holds major implications for the future of LGBTQ education and the scope of religious and parental rights.

Questions as Framed for the Court by the Parties

Whether 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.

Facts

The Free Exercise Clause of the First Amendment states that “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof.” The Free Exercise Clause protects individuals from laws that might discriminate against them because of their religious beliefs, practices, or conduct. If a law burdens religious exercise, it may still be permissible if it meets the appropriate level of judicial scrutiny: rational basis review in the case of a facially neutral law that is generally applicable, or strict scrutiny for all other sorts of laws that burden religious exercise.

In 2022, the Montgomery County Board of Education, led by then-superintendent Monifa McKnight (collectively, “the Board”), approved an elementary school English curriculum that included various LGBTQ-inclusive books (“the Books”). The curriculum did not include planned units on gender identity or sexual orientation. The Board instructed teachers to use the Books like any other book, by recommending them, reading them aloud to class, or leaving them on classroom bookshelves for students to find on their own. The Board permitted teachers to choose how to use the Books and which of the Books to use, but teachers could not opt out of using the books at all. The Board also issued additional materials recommending responses to potential comments or concerns about the Books. The plaintiffs are six parents (collectively, “the Parents”) whose children attend Montgomery County elementary schools. The Parents believe that to comply with their respective religions, they must raise their children to have certain beliefs about gender, sexuality, and marriage. The Parents wish to control what their children learn about these subjects and how the subjects are framed. Initially, Board policy was that the school would inform parents when a Book was set to be discussed in class and allow the parent to opt-out, in which case the teacher would find a substitute text. On March 23, 2023, the Board announced that parents could no longer opt out of having their children participate in discussions including the Books, citing several reasons for the change: high absenteeism, the burden on teachers of keeping track of which students were allowed to have access to the Books, the burden on teachers of developing alternative plans, and worries about stigmatizing LGBTQ students and students with LGBTQ loved ones.

After the Board ended its opt-out policy, the Parents filed a complaint in Maryland District Court , initially alleging that the new policy interfered with their free exercise of religion, their free speech, violated due process of law, and Maryland state law. The Parents sought a declaratory judgment that the policy was unconstitutional, and moved for a preliminary injunction reinstating the opt-out policy. The District Court did not issue a preliminary injunction, ruling that the Parents could not show a likelihood of success on the merits. The Parents appealed , and the United States Court of Appeals for the Fourth Circuit affirmed the District Court's judgment.

The Parents petitioned the Supreme Court of the United States for certiorari on September 12, 2024, which was granted on January 17, 2025.

Analysis

FREE EXERCISE OF RELIGION

The Parents argue that the Board's changed policy threatens their ability to control the religious upbringing of their children. The Parents contend that their respective faiths require adherents to be cisgender and marry heterosexually, and they fear that their children’s exposure to the Books will undermine the Parents’ efforts to pass on such beliefs. The Parents contend that in order to freely exercise their religions, they must prevent their children from being exposed to the Books, citing Yoder , in which the Court ruled that it was unconstitutional to apply truancy laws to Amish individuals who believed that attending any school after grade eight would burden their religious practice. The Parents also cite Barnette , in which the court held unconstitutional a law that required all students to pledge allegiance to the American flag and allowed no exemptions for those with religious objections.

The Parents claim that when the Board changed their policy to no longer allow opt-outs from instruction including the Books, it interfered with the Parents’ ability to direct their children away from material they found at odds with their beliefs. Further, the Parents assert that the Board knew that including the Books in its curriculum would burden religious exercise, given that the Board acknowledged including the books to “disrupt cisnormativity,” a belief that the Parents view as fundamental to their religions. The Parents argue that the Board intended to instill values in children which the Parents would not easily be able to counter at home. The Parents insist that children are particularly influenced by their teachers given the teachers’ position of authority and the students’ ages. Further, the Parents argue that because members of the Board made statements they perceived as hostile to religion, such as stating that opposition to the Books was xenophobic and showing “ignorance and hate,” the Board acted with religious animus. The Parents acknowledge that LGBTQ people have legal protections but claim that their religious interests occupy an important carveout with regard to LGBTQ education and family structure.

The Board counters that the Court’s Free Exercise precedents do not prevent schools from exposing students to ideas, even if those ideas differ from their religious beliefs. The Board distinguishes the case from Yoder ,arguing that merely learning about ideas at odds with one’s religion is notably different from being forced to attend high school. To attend high school at all, the Board further argues, violated Amish beliefs by taking young people away from the community when their faith would require them to engage in vocational training. The Board insists that Yoder does not permit parents to withdraw their children from discrete aspects of public schooling which they find disagreeable, but only to be exempt from compulsory attendance laws when they are at odds with religious practice. The Board states that the Free Exercise Clause should be read as not permitting governmental actors to coerce individuals into changing their religious beliefs or actions. If the Free Exercise Clause had the broad scope the Parents read into it, the Board argues, the word “prohibit” would be replaced with a weaker verb such as “infringe” or “abridge,” but as written, it refers only to coercion to act. Further, the Board would have the Court recognize that the Free Exercise Clause does not require the government to carry out its business in accordance with citizens’ religious beliefs. For example, the Board cites Bowen , in which the court held that even if a person’s religion opposes being assigned a Social Security Number, the government may still use Social Security Numbers to identify all citizens. To the Board, even if the Parents require separate lessons not including the Books only for their children while the rest of the school can use the Books, the Parents would be, in effect, dictating the content of a public school’s lessons, thereby requiring the government to change its internal procedures.

STANDARD OF REVIEW

The Parents also argue that their religious opt-out requests are not being treated equivalently to similar secular opt-out requests and that strict scrutiny should be applied because the restrictions call into question the Free Exercise Clause. The Parents claim that their opt-out requests related to the Books are comparable to other parents’ religious or secular opt-out requests from middle and high school sex education, requests which the Board grants regularly. Because the Board established curricula for both sex education and English intending to be LGBTQ-inclusive, the Parents argue that categorizing the English curriculum including the books differently from the sex education curriculum is arbitrary and therefore fails both strict scrutiny and rational basis review. The Parents further argue that the Board’s decisions should be subject to strict scrutiny, due to their discretionary nature. The Parents posit that, if the Board could previously accommodate religious opt-outs and accommodate opt-outs for the health curriculum and events such as birthday parties, the Board is acting on its discretion when it chose to change the policy regarding the Books. The Parents submit that including the Books in the school’s curriculum with no opt-out requires them to choose between an important public benefit and preventing their children from being exposed to material they disapprove of, failing strict scrutiny. The Parents argue that because the Board’s interests are described too broadly by; failing to justify denying all opt-outs related to the Books; and are not justified by history and tradition, they are presumptively not a compelling state interest. The Parents argue that the state interest of avoiding disruption is insufficient to justify the Board’s policy both because the Board cited only one example of disruption and because the Parents consider avoiding disruption to be a smaller harm than their children being exposed to the Books. The Parents also assert that the Board’s interest in a learning environment without stigma is not measurable enough that courts can review it because it is a qualitative rather than quantitative goal. The Parents argue that the Board’s policy is at odds with its stated goals because it stigmatizes religious students, so it fails even rational basis review.

The Board states that the policy cannot trigger strict scrutiny because the Parents cannot show a burden on their religious practice and that even if they could, the policy is neutral and applied equally, whether the opt-outs are religious or secular in nature. Further, the Board explains that health content and English content are different because health is a discrete unit as opposed to a set of materials integrated into the classroom throughout the day and year and allowing opt-outs from lessons including the Books would be more disruptive and burdensome than arranging to have children not attend health education. Further, the Board argues that they do not exercise discretionary authority over opt-outs in this case because they do not allow any curricular opt-outs from required instruction and their policy is not applied arbitrarily. The Board insists that the Court should not rule on the level of scrutiny, let alone apply it because the question before the Court is only whether there is a religious burden, not whether the policy violates the Free Exercise Clause. The Board contends that, even if the Court finds a burden on the Parent’s religious exercise, it should remand the case for the lower courts to rule on whether the policy violates the Free Exercise Clause because the lower courts are better situated to rule on the discrete aspects of a state’s educational policy. If the Court does apply strict scrutiny, the Board argues that the policy meets the standard because it is narrowly tailored and serves a compelling government interest. The Board cites its compelling interest both in fostering a community which is “safe and conducive to learning for all students,” and in having uninterrupted classes, both of which opt-outs would impede. The Board also explains that its policy is narrowly tailored because the Board only implemented the no opt-out policy after determining that implementing the opt-outs was unworkable and incompatible with its compelling interest.

Discussion

PARENTAL VERSUS STATE CONTROL OF EDUCATION

Parents Nicholas Brown and others (“Parents”), in support of Mahmoud, argue that the Board’s policy prevents parents from making informed choices around educating their children about sexuality. Without notice of LGBTQ materials, Parents contend they lack information necessary to determine whether materials violate their religious beliefs. They further assert that opt-outs can be implemented without creating excessive veto power over other parts of school curricula since sex education is a singularly unique area of parental concern.

West Virginia and other states (“West Virginia”), in support of Mahmoud, argue that parents’ right to control children’s upbringing would be rendered meaningless if states could override it on educational grounds. West Virginia contends that states have a longstanding history of safeguarding parental and religious rights. West Virginia argues that, if the Board wins, parents wishing to exercise their right to control their child’s education will have to enroll in private school, surrendering their right to public education.

Professors Lawrence Sager and Nelson Tebbe, along with Justin Driver and Eugene Volokh, in support of the Board, counters that opt-outs unreasonably extend parental rights. Sager and Tebbe assert that, if opening one program to opt-outs would mandate all programs be similarly opened, schools would be incentivized to offer no opt-outs at all. Driver and Volokh contend that, historically, when schools allow opt-outs from one part of the curriculum, they open the floodgates to parental vetoes over any subject.

Maryland and other states (“Maryland”), in support of the Board, argue that states have discretion to shape education policy for the public good. Maryland asserts that familiarizing students with LGBTQ materials meets state educational goals of fostering inclusion and reducing bullying. Maryland argues that, if the LGBTQ materials are treated like sex-education, then heterosexual media would also require opt-outs.

RELIGIOUS LIBERTY AND LGBTQ RIGHTS

Mormons, Lutherans, and Jewish organizations, among others (“Religious Organizations”), in support of Mahmoud, argue that the beliefs of many religions are burdened by the Board’s program. The Religious Organizations contend the Board is repackaging materials that belong in sex-education curricula into language arts materials to make the lessons mandatory. The Religious Organizations argue that the Board’s program converts students to certain viewpoints, especially by discussing such topics at ages when students are too young to push back.

The Women’s Liberation Front (“WLF”), in support of Mahmoud, argues that the inclusion of LGBTQ curricula in schools constitutes the establishment of a religion, since it enforces a set of secular beliefs on students. The WLF argues that the Board’s policies place LGBTQ rights above religion by promoting the former’s worldview as true. The WLF argues that the Books teach about gender and sex in unscientific ways and that this will harm the educational development of students.

The National Education Association and other organizations (“NEA”), in support of the Board, argues that religious rights cannot trump educational interests in diversity and inclusion. The NEA argues that producing good citizens requires exposing students to diverse ideas, while not enforcing viewpoints on them . Allowing students to opt out of hearing difficult ideas on religious grounds, the NEA contends, will create an unworkable system that demands courts overrule the educational expertise of schools.

Various LGBTQ advocacy groups (“Advocacy Groups”), in support of the Board, argue that the LGBTQ curriculum benefits all students, including LGBTQ students who face heightened social stigma. The Advocacy Groups highlight statistics about mental and physical health challenges facing LGBTQ students and argue that the Board’s inclusive program helps alleviate these issues while fostering collaboration between students. The Advocacy Groups assert that, just as it teaches religious inclusivity, the Board’s curriculum must also be inclusive toward LGBTQ identities.

Conclusion


Samantha Wood and Sasha Prakir

Rodrigo F. Tojo Garcia

Acknowledgments

The authors would like to thank Professor Nelson Tebbe for his guidance and insights into this case.

Additional Resources