The Supreme Court just imposed a “Don’t Say Gay” regime on every public school in America

On Friday, the Supreme Court ruled that parents with religious objections to books with LGBTQ+ characters must be allowed to opt their children out of any public school instruction that uses those books. The decision in Mahmoud v. Taylor was handed down along party lines, with all six Republicans in the majority and all three Democrats in dissent. The Mahmoud case highlights the Republican justices’ impatience to remake constitutional law in a more socially conservative image, especially in cases involving religion. It is certainly possible for public school instruction to violate a religious child’s constitutional rights. The Constitution, for example, forbids government institutions like public schools from coercing students into violating their religious views. As Justice Samuel Alito notes in the Mahmoud opinion, the Constitution would also forbid teachers from openly mocking a student’s faith. But, as a federal appeals court which previously heard the Mahmoud case warned, we don’t actually know whether the Constitution was violated in this case. Although Montgomery County, Maryland, approved several books with LGBTQ+ characters for use in public schools, the lower court found that the record in this case contains no information “about how any teacher or school employee has actually used any of the Storybooks in the Parents’ children’s classrooms, how often the Storybooks are actually being used, what any child has been taught in conjunction with their use, or what conversations have ensued about their themes.” Nevertheless, Alito handed down a fairly broad opinion which is likely to impose substantial new burdens on public schools, and he did so without waiting until the record in this case was more fully developed by lower courts. The result is that many schools may struggle to comply with the new obligations that were just imposed, and most schools are likely to exclude books that introduce queer themes or that even mention LGBTQ+ characters. Why Mahmoud imposes a severe burden on public schools The plaintiffs in Mahmoud include Muslim and Christian parents who do not want their children exposed to these books. And their lawyers came to the Supreme Court with an audacious request — seeking a broad decision that parents who object to any form of classroom instruction on religious grounds must be notified in advance, and be permitted to opt their child out of that instruction. The problem with this request is that schools cannot possibly know, in advance, which religious views are held by which parents, and which books or lessons those parents might find objectionable. In the past, parents have sued school districts objecting, on religious grounds, to lessons that touch on topics as diverse as divorce, interfaith couples, and “immodest dress.” They’ve objected to books which expose readers to evolution, pacifism, magic, women achieving things outside of the home, and “false views of death.” Courts have historically been very cautious about ruling in favor of parents who raise these sorts of objections, in part due to concerns that schools would be overwhelmed by administrative burden. Nevertheless, the Court’s decision in Mahmoud largely embraces the plaintiffs’ request — Alito orders the school board to notify parents “in advance whenever one of the books in question or any other similar book is to be used in any way and to allow them to have their children excused from that instruction.” Alito’s opinion does not discuss how this rule should apply to parents with more uncommon religious beliefs, but the Constitution forbids the government from treating people with idiosyncratic religious beliefs differently than people with more common beliefs. The upshot is that a school may also need to warn parents if a teacher wants to read from a Harry Potter book (because those books are about magic), or if they want to teach a lesson about a famous pacifist like Martin Luther King Jr. Schools may even need to warn parents if any of their children’s teachers are women, just in case a parent objects on religious grounds to women having achievements outside of the home. That said, Alito’s opinion is slightly narrower than the Mahmoud plaintiffs’ proposed framework. Alito argues that the books at issue are objectionable, not just because they feature LGBTQ+ characters, but because they suggest that certain aspects of queer culture should be “celebrated.” One of the contested books is a medieval fairy tale about a prince who marries a knight. According to Alito, the book “relates that ‘on the two men’s wedding day, the air filled with cheer and laughter, for the prince and his shining knight would live happily ever after.’” Thus, Alito claims, this book is objectionable not because it includes a same-sex wedding, but because it portrays this wedding as a good thing. Under Alito’s framework, a book that featured a same-sex wedding without portraying it as desirable might not trigger the new rule. Similarly, Alito would likely permit women to work as teachers without warning parents of their femininity, so long as the teacher does not do anything to celebrate their womanhood or suggest that being a woman who works outside the home is a good thing. Still, schools will likely struggle to determine when they are required to warn parents of a particular lesson under Mahmoud. And schools that draw the line in the wrong place now risk being dragged into an expensive lawsuit. Schools are likely to be reluctant to teach books with queer themes or characters One very likely consequence of Mahmoud is that schools will be very reluctant to teach any lesson that mentions homosexuality, transgender people, or anything else that touches on queer sexuality or gender identity. Mahmoud is likely to impose a Florida-style “Don’t Say Gay” regime on every public school classroom in America. The reason why is fairly straightforward. While it is somewhat unclear how Mahmoud applies to parents who object to fantasy novels or working women, the decision quite clearly limits schools’ ability to teach books with queer characters. Nor is it clear when a book crosses the line from merely mentioning a gay character to celebrating some aspect of gay culture. So schools that want to avoid lawsuits will need to exclude these sorts of books from their classroom altogether. Lawyers, meanwhile, have a financial incentive to sue schools that behave more boldly. Federal law typically allows the “prevailing party” in a civil rights lawsuit to collect attorney’s fees from the losing party. And suits enforcing Mahmoud are considered civil rights cases because they arise under the First Amendment’s religious liberty provisions. So, lawyers can search for schools that teach books with LGBTQ+ characters, find a parent who objects to those books, and then sue and demand that the school district pay their client’s bills. School districts that don’t want to be treated like an ATM for anti-LGBTQ+ lawyers, meanwhile, will only be able to avoid these lawsuits by excluding queer-themed books from the classroom entirely. The Supreme Court, in other words, has decided that in order to accommodate one identity group — religious conservatives — schools should be hypercautious about teaching books that feature members of another identity group — LGBTQ+ people. Given the Court’s Republican majority, that decision is not a surprise. But it is likely to impose very difficult burdens.

This moment demands more than headlines

The Supreme Court just imposed a “Don’t Say Gay” regime on every public school in America