WASHINGTON — The Supreme Court on Tuesday appeared likely to rule for parents in Maryland who objected on religious grounds to books made available in a school district's elementary schools that feature stories about gay and transgender characters.
Members of the 6-3 conservative majority, which often backs religious rights, seemed sympathetic during the lively 2½-hour oral argument toward the parents’ claims that the Montgomery County Board of Education violated their religious rights by failing to provide an opt-out for their children.
Some justices indicated that the board's refusal to provide an opt-out might have been motivated by hostility toward religion. A ruling is due by the end of June.
At issue are books included in the English language arts curriculum in Montgomery County. The dispute arose in 2022 after the school board in the large and diverse jurisdiction just outside Washington decided it wanted more storybooks reflecting LGBTQ stories to better reflect the people who live there.
Ahead of oral arguments, dueling rallies took place outside the court, with LGBTQ activists holding rainbow-colored umbrellas and one holding a sign saying, "I will not stay silent."
A few yards away, a group supporting the challengers held signs that read "Let parents parent."
One book, "Uncle Bobby’s Wedding," features a gay character who is getting married. Another, called "Born Ready," is about a transgender child who wants to identify as a boy.
Some parents, including Muslims and Orthodox Christians, objected on religious grounds under the Constitution's First Amendment, saying their children should be able to opt out of any exposure to the content.
Conservative Justice Neil Gorsuch was one of several justices who raised comments made by a former member of the school board, Lynne Harris.
She had suggested in a media interview cited in court papers that a student who objected to the books was "parroting dogma" passed on by her parents and compared their complaints to those of white supremacists who opposed civil rights laws.
“Does that suggest a hostility toward religion?” Gorsuch asked, citing a 2018 ruling in which the court ruled for a Christian baker who refused to serve a gay couple on the grounds that a state civil rights commission had shown anti-religious animus.
Other conservative justices expressed disbelief that the school board found it too difficult to provide an opt-out.
“Why isn’t that feasible?” Justice Samuel Alito asked.
“I’m not understanding why it’s not feasible,” Justice Brett Kavanaugh added.
Chief Justice John Roberts seemed skeptical of the school board's argument that the policy did not require the children to affirm or support the content of the books.
"Is that a realistic concept when you are talking about a 5-year-old?" he asked.
Along similar lines, Justice Amy Coney Barrett said the content of the books appeared to be presenting children with more than just neutral facts about the existence of LGBTQ people in society.
"It's not just exposure to the idea, right?" she asked. "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. This is like 2 plus 2 is 4."
Liberal justices were more sympathetic to the school board, with Justice Elena Kagan wondering whether a ruling for the parents would lead to an increase in religious objections and, in some situations, lead schools to have to abandon some aspects of the curriculum altogether because of the difficulty of providing opt-outs.
"So I'm just wondering if that's the next step here," she said.
Fellow liberal Justice Ketanji Brown Jackson also appeared skeptical, noting that parents have other options if they do not like what their children are taught in school.
"If the school teaches something that the parent disagrees with, you have a choice. You don't have to send your kid to that school," she said.
Justice Sonia Sotomayor, the other member of the liberal minority, questioned how much exposure to the contested contents children actually had.
"Haven't we made very clear that the mere exposure to things that you object to is not coercion?" she said.
She referred to "Uncle Bobby's Wedding," wondering whether a religious objection could be based solely on the depiction of two men getting married.
"None of them are even kissing in any of these books. The most they are doing is holding hands," she said.
Alito, focusing on the same book, took a different view of the same content.
"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 who hold on to traditional religious beliefs don't agree with," he said.
"I don't think anybody can read that and say, 'Well, this is just telling children that there are occasions when men marry other men,'" he added.
The lead plaintiffs are Tamer Mahmoud and Enas Barakat — a Muslim couple who have a son in elementary school. Other plaintiffs are members of the Catholic and Ukrainian Orthodox churches.
They are not challenging the curriculum itself, just the lack of an opt-out.
A federal judge and the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals both ruled in favor of the school board.
The Supreme Court will determine whether the school board policy burdens religious rights. The justices could then determine whether that burden violates the Constitution, or they could send the case back to lower courts to make that determination.
The parents, represented by the religious liberties group Becket, say that under Supreme Court precedent, they have a right to opt out of any instruction that would interfere with their children’s religious development.
The school board is “compelling instruction designed to indoctrinate petitioners’ children against their religious beliefs,” the parents’ lawyers wrote.
The parents have the backing of the Trump administration.
Lawyers for the school board said in court papers that there is no attempt to coerce children and that there was an attempt to allow an opt-out "until doing so became unworkably disruptive."
The lawyers wrote that the court record is "devoid of evidence that petitioners or their children are compelled or pressured to modify their religious beliefs or practice."
The school board also asserts that although the books are in classrooms and available for children to pick up, teachers are not required to use them in class.
The Supreme Court has previously backed religious rights in cases involving conflicting arguments made by LGBTQ rights advocates. In 2023, for example, the court ruled in favor of a Christian web designer who refused to work on same-sex weddings.
The court is hearing another major religious case next week when it considers whether to approve the country's first public religious charter school.
In its next term, which starts in October, the court will consider a challenge to state laws that ban "conversion therapy" aimed at young people questioning their sexual orientations or gender identities.
