Mahmoud v Taylor
Available in Audio Format:
The American Supreme Court continues to be busy. After upholding the legality of an age-verification law to limit access to pornography in Paxton and a ban on medical transitioning for minors in Skirmetti, the U.S. Supreme Court recently tackled gender and sexuality ideology in education. In Mahmoud v Taylor, the Court ruled 6-3 that requiring students to receive “LGBTQ+-inclusive” teaching with no opt-out violated the free exercise of religion.
Overview of the case
The Montgomery County school board in Maryland, adjacent to Washington DC, oversees one of the largest school districts in the United States. The district enrolls over 160,000 students and has an operating budget of almost $3 billion. The Board approved “LGBTQ+-inclusive” storybooks for the K-5 classroom (students aged 5-11). These books affirm same-sex relationships and transgender identities. Teachers were expected to use these books as a part of their classroom instruction and to affirm LGTBQ+ identities. For example, “If a student claims that a character ‘can’t be a boy if he was born a girl,’ teachers were encouraged to respond: ‘That comment is hurtful.’”
At first, the Board notified parents when these books would be used in class so that they could opt their children out of those classes. Many parents believed that these resources were “implying to [children] that their religion, their belief system, and their family tradition is actually wrong.” But the board rescinded the opt-out policy within a year.
Various parents – two Muslims, three Roman Catholics, one Ukrainian Orthodox – who had children in the school district challenged the constitutionality of the lack of an opt-out. They claimed that indoctrinating children with a pro-LGBTQ+ worldview violated their constitutional guarantee to the free exercise of religion.
Their argument goes something like this: 1) their religious beliefs include specific beliefs on gender and sexuality, 2) their religious beliefs require them to educate their children in these beliefs, and 3) the use of “LGBTQ+-inclusive” storybooks undermines these beliefs, 4) therefore, the Board’s requirement that all students be subjected to “LGBTQ+-inclusive” teaching violates their right to the free exercise of religion. Here is how the Court sums up the Petitioners’ beliefs:
Mahmoud and Barakat are Muslims who believe “that mankind has been divinely created as male and female” and “that ‘gender’ cannot be unwoven from biological ‘sex’—to the extent the two are even distinct—without rejecting the dignity and direction God bestowed on humanity from the start…” [I]n their view, “[t]he storybooks at issue in this lawsuit . . . directly undermine [their] efforts to raise” their son in the Islamic faith “because they encourage young children to question their sexuality and gender . . . and to dismiss parental and religious guidance on these issues.”
Jeff Roman is Catholic. And Svitlana Roman is Ukrainian Orthodox. They believe that “sexuality is expressed only in marriage between a man and a woman for creating life and strengthening the marital union… that gender and biological sex are intertwined and inseparable” and that “the young need to be helped to accept their own body as it was created…” [A]llowing those teachers to “teach principles about sexuality or gender identity that conflict with [their] religious beliefs” would “significantly interfer[e] with [their] ability to form [their son’s] religious faith and religious outlook on life.”
The Persaks are Catholics who believe “that all humans are created as male or female, and that a person’s biological sex is a gift bestowed by God that is both unchanging and integral to that person’s being…” They are concerned that the Board’s “LGBTQ+-inclusive” storybooks “are being used to impose an ideological view of family life and sexuality that characterizes any divergent beliefs as ‘hurtful.’” They think that such instruction will “undermine [their] efforts to raise [their] children in accordance with” their religious faith.
The parent petitioners in this case… all believe they have a “sacred obligation” or “God-given responsibility” to raise their children in a way that is consistent with their religious beliefs and practices.
The guarantee of the free exercise of religion disallows attempts to compel children to abandon their religious beliefs. For example, in the 1943 Barnette decision, the Court ruled that schools could not require Jehovah’s Witnesses to salute the American flag, which they considered to be a “graven image.”
But the court was clear that this constitutional right goes beyond policies that compel children to abandon or violate their religious beliefs. It also “protects against policies that impose more subtle forms of interference with the religious upbringing of children.” A classic 1972 freedom of religion case – Yoder – allowed Amish parents to take their students out of school after eighth grade, despite a state law that required school attendance until age 16. The Amish parents reasoned that “the values taught in high school were ‘in marked variance with Amish values and the Amish way of life,’ and would result in an ‘impermissible exposure of their children to a “worldly” influence in conflict with their beliefs.’”
The Court in Mahmoud decided that pressuring students to adopt a pro-LGBTQ+ worldview is a similar infringement on the free exercise of religion. “The [“LGBTQ+-inclusive”] books are unmistakably normative. They are designed to present certain values and beliefs as things to be celebrated, and certain contrary values and beliefs as things to be rejected.”
This accords well with the Reformed recognition that no teaching can be truly neutral. There is a worldview underlying the sexual revolution and the gender revolution. Rather than trusting God’s Word and general revelation as the authority for morality and truth, the LGBTQ+ position boils everything down to feelings. For instance, two of the LGBTQ+-inclusive” storybooks insist that same-sex marriage must be permissible if two men “love each other” and accepting another person’s gender identity “is about love.”
The majority opinion dismisses various arguments in defense of the Board’s mandatory “LGBTQ+-inclusive” education. These resources are not simply “exposure to objectionable ideas… The storybooks unmistakably convey a particular viewpoint about same-sex marriage and gender.” Constitutional guarantees do not stop at the schoolhouse door. The fact that parents can educate their children elsewhere (e.g. in a private school or at home) does not mean that the public school can exclude children of religious parents. “Public education is a public benefit, and the government cannot ‘condition’ its ‘availability’ on parents’ willingness to accept a burden on their religious exercise.”
Room for improvement…
Unfortunately, the Court doesn’t bother to further apply its claim that education cannot be neutral. For example, the Court tries to be neutral on these matters of gender and sexuality. “We express no view on the educational value of the Board’s proposed curriculum, other than to state that it places an unconstitutional burden on the parents’ religious exercise if it is imposed with no opportunity for opt outs.”
This decision also isn’t the final word on this matter. Rather than ruling definitively on the constitutionality of requiring children to be fed an “LGBTQ+-inclusive” worldview, this case only grants a temporary injunction. It requires the Board to notify the parents in the case – but not necessarily other religious parents – if “LGBTQ+-inclusive” storybooks will be used in the classroom and allow these parents to opt their children out of those classes until the main issue is decided. This isn’t necessarily a criticism of the Court. The parents were asking for such an injunction. But it means there is still more to do to protect religious freedom south of the border.
…But still better than here in Canada
Canada is still several steps behind the United States in preserving the religious freedom of its citizens and combatting the sexual revolution and gender revolution. Teaching about sexual orientation and gender identity (SOGI) is rampant in public schools across the country, particularly in British Columbia and Ontario. Only Alberta has taken significant steps to remove gender ideology from classrooms. They now require all materials related to gender and sexuality to be approved by the Ministry of Education, and schools must obtain parental opt-in before teaching these subjects.
Canadian courts have not yet weighed in on the issue, though they likely will soon, since a couple of LGBTQ+ organizations have voiced their intention to challenge Alberta’s policy. Canadian courts could use similar reasoning as the US Supreme Court in Mahmoud. They could rule that any required teaching about sexual orientation or gender identity violates Canadians’ Charter right to the freedom of conscience and religion. We’re praying that any future legal decisions here in Canada will also preserve the space to teach creational norms around gender and sexuality.
