The U.S. Supreme Court last week heard oral arguments in Mahmoud et al. v. Taylor—a case brought by three families petitioning, on First Amendment Free Exercise grounds, to have their young children opt out of class time involving age-appropriate books that depict homosexual characters. The families—one Muslim, the other two Catholic—are not seeking to ban the books or to amend the Maryland elementary school curriculum. Instead, they are suing to overcome the school board’s refusal to allow an opt-out in this circumstance.
Opting out might appear to be a modest request, and Amy Howe’s Scotusblog summary of oral arguments describes the conservative majority of the Court as sympathetic to the parents’ petition. “What’s the big deal about allowing them to opt out of this?” asked Justice Alito. Although an unsurprising comment from Alito, the big deal raises conflicts the Court may be inclined to ignore—but it should not.
The Petitioners Misrepresent the Facts
The first big deal is that by allowing the petitioners to opt out on First Amendment Free Exercise grounds, this would make doctrine from an improper reading of the facts before the Court. In order to object to the books on the basis of the Exercise right, the parents should be required to show that the books promote an ethical or moral viewpoint that is not only anathema to their beliefs but also show how mandatory classroom exposure to that viewpoint is an abridgement of their right of Exercise.
But that bar cannot be met based on the content of the books at issue. “One book describes the story of a girl attending her uncle’s same-sex wedding, for example, while another book, Pride Puppy, tells the story of a puppy that gets lost during a Pride parade,” writes Howe. It may be the case that in the minds of the petitioners, the books imply or impose a moral position on homosexuality, but in fact, the books at issue simply depict the world as it is—a world that includes gay people.
If the books “promote” any viewpoint at all, it is tolerance in general, and it is extraordinary for these families to ask the Court to find that tolerance is tantamount to abridgement of religious exercise. It is clear that many religious people feel this way, but if the Court sanctions this view, it will erode the Framers’ purpose in writing the Exercise and Establishment clauses—namely that religious tolerance in a nation as complexly diversified as the United States is necessary for ensuring domestic tranquility.
So, if mere tolerance is unacceptable for certain families, it is unreasonable for those families to expect the public school to accommodate this view—let alone find that failure to make that accommodation is an abridgement of the Exercise right. The American public school has a responsibility to provide curricula and materials in literature, science, and history that reflect the world as it is—indeed failure to do so would violate the meaning of education—and the world includes gay people. It is, therefore, not the job of teachers or administrators at a public school to help certain parents shield their children from this fact any more than they would shield a child from a book depicting a prosperous Black character because some family sincerely believes that non-White people are subordinates in the “eyes of God.”
An Atheistic Hypothetical Makes the Point
Although my atheism is not conditioned on the fact that I find many religious people to be morally objectionable, I nevertheless sincerely believe that many religious people are morally objectionable. In fact, I could cite centuries of history to support that view in contrast to the dearth of evidence the petitioners in Mahmoud might bring to show a similar pattern among associations of gay people. Regardless, if the Court decides in favor of these families, would it likewise find that my secular child may opt out of a lesson in which a storybook merely depicts a family going to church?
If this hypothetical children’s book does not preach, for instance, that churchgoers are morally superior to non-churchgoers, then the book simply depicts the world as it is—a world in which some families go to church. In this case, would the Court find, as it should, that I am overreacting by seeking an exemption for my child on the false interpretation that the book’s mere depiction of churchgoing is implying that her secular family is morally wrong?
If the Court would rule against me in this hypothetical, then its finding should be no different for the plaintiffs in Mahmoud. Further, if my child gleans from the storybook that she is expected to tolerate, if not agree with, the religious kids in her class, that is both a sound lesson and one that is conducive to the atmosphere necessary for teaching a roomful of young children. This is especially true where young children come from a diverse range of families, including the likelihood that one may be the child of same-sex parents.
We Cannot Each Be a Law Unto Ourselves
Although opting out of a kindergarten class is a small matter—indeed, the parents could have done so without literally making a federal case out of it—asking the Court to grant the exemption on the basis that compliance with the public-school curriculum is an abridgement of Exercise conflicts with precedent, and possibly in a new and dangerous way. As the court held in Reynolds v. United States (1878), and Justice Scalia restated in Employment Division v. Smith (1990), the Free Exercise Clause is not “a system in which each conscience is a law unto itself.”
Reynolds and Smith address matters of state abridgement of specific exercise (polygamy in the first instance, and peyote ritual in the second) as a question of balance with “generally applicable law.” In response to Smith, Congress and President Clinton passed the Religious Freedom Restoration Act (RFRA) to reset judicial review and reverse Scalia’s holding in that case. RFRA was subsequently key in 2014 to then Judge Gorsuch’s 10th Circuit holding that Hobby Lobby, a privately held company owned by devout Christians, may be exempted from certain birth control mandates in the Affordable Care Act.
But between Reynolds and Hobby Lobby, in addition to the shift from natural persons to corporations engaging in “religious exercise,” we also see a contrast between direct prohibition of specific conduct (polygamy) to a more nuanced concept of abridgement (compliance with federal insurance law). But even Hobby Lobby is narrow in contrast to the implicitly broad exemption being sought in Mahmoud.
It is clearly the view of many religious Americans—especially American Christians—that mere toleration of fellow citizens outside their orthodoxy is perceived as an infringement of their Exercise rights. Or as The Authors Guild states in its amicus brief in this case, “Petitioners argue that the mere exposure to books that represent this community violates their free exercise rights under the First Amendment….we are now at an especially fraught moment in our history, as book removal initiatives—couched as attempts to shield children and young adults from harmful subjects and dangerous ideas—are wreaking havoc on school districts and public libraries across the country.”
The Court should refuse to endorse this agenda with a poor reading of the Exercise clause. Not only would it be bad law, but it invites pedagogical chaos in public education and animates viewpoint extremism in general. After all, what are the boundaries for public-school parents to opt out, grade-by-grade, topic-by-topic, belief-by-belief—in a society increasingly belabored by subjective truths? The family who clings to the geocentric model of the universe, for instance, is at liberty to home-school or find a parochial option that fits their beliefs, but the First Amendment does not permit them to demand that the public school accommodate their personal brand of scientific ignorance.
Thus, if we look beyond kindergarten and the Court finds for the plaintiffs in Mahmoud, the disarray it prefaces in public schools may only be resolved by an unconstitutional cabining of the opinion as an exception for certain religious exercise—perhaps just the three Abrahamic religions?—which would be in conflict with the Establishment clause. And quite possibly, that is the underlying intent of this lawsuit: to frame tolerance of diverse beliefs as intolerance of a few preferred beliefs until the latter overwhelms the former.
In that regard, intolerance itself is, of course, part of the world as it is, and as children mature, the literature they read often deals directly with various forms of intolerance in books that some Americans have tried to censor. Any sincerely held belief, whether religious or irreligious, will eventually breed some measure of intolerance for the heterodox view. Some Christians believe that I am an emissary of the devil, and, in turn, I believe those people are howling-at-the-moon insane.[1] There is no reconciling our views of one another, and so, the constitutional Framers, keenly aware that such antagonisms tear nations apart, wrote the Establishment and Exercise clauses with the hope of fostering comity in the new nation. So, the big deal in this case is that at the very least, the Court should honor history and tradition by supporting public school teachers working to foster comity in the classroom.
[1] Expression by Aaron Sorkin, The West Wing.
Photo by Peopleimages
