Maryland: Inclusion as Exclusion

In October of 2022, Montgomery County Public Schools in Maryland mandated the inclusion of “inclusive” LGBTQ+ storybooks for its English Language Arts curriculum. These storybooks, which would be used in pre-k through eighth-grade classrooms, celebrate gender transitions and pride parades, feature characters related to gender identity and sexual orientation, and introduce students to same-sex marriage, pronoun preferences, and gender transitioning. The Supreme Court states “the storybooks themselves are ideological, stressing that “[n]ot everything” about gender “needs to make sense,” that children should be free to use their preferred bathroom, and that “pronouns are like the weather” and may “change depending on how [children] feel.” In mandating these storybooks, the school board promised parents that they would receive notice and have the option to opt their children out of lessons involving these books. This would allow religions that hold beliefs that do not align with these gender and sex ideals, to be accommodated. Historically, this promise has been consistent with Maryland and its school boards' policies. The school board notifies parents and gives them a choice to opt out of their children in sex-ed classes, allowing them to exercise their parental rights. However, in March of 2023, the Board reversed their policy, eliminating, without any explanation, the opt-out option and all notices to parents. Students, therefore, are required to receive language arts instruction that involves storybooks as a part of their education. Despite this, the Board still allowed parents to have the opt-out option of sex education in the state-mandated health classes.

Parents from different religious backgrounds, (Muslim, Roman Catholic, Ukrainian Orthodox), including Tamer Mahmoud, sued the Board under the Free Exercise Clause in the case of Mahmoud v. Taylor, arguing that “the denial of notice and opt-out options violated their religious freedom and parental rights.”  In arguing this, the parents emphasized that they did not aim to challenge the contents of the books nor have them banned. Rather, they argue that they are entitled to the parental right to maintain control over when their children are exposed to beliefs that go against their religious teachings on marriage, sexual orientation, and gender. They reason that children, who lack the mental capacity to understand these sensitive topics, are impressionable and can be influenced by these storybooks.

A district court denied the parent's request for a preliminary injunction, asserting that the parents failed to demonstrate a free exercise burden. They assert that there is no religious burden until the students are compelled “to change their religious beliefs or conduct.” The U.S. Court of Appeals for the Fourth Circuit affirmed this in a 2-1 decision. However, in the Eighth Circuit, children cannot be forced to participate in activities that violate their religious beliefs.

The constitutional issue in Mahmoud v. Taylor deals with the Free Exercise Clause, which “protects citizens' right to practice their religion as they please, so long as the practice does not run afoul of a "public morals" or a "compelling" governmental interest.” The parents argue that requiring students to participate in instruction on sexuality and gender that goes against their religious convictions burdens their religious exercise. Essentially by refusing to notify parents and not giving them an opt-out option in these lessons, the school board is infringing upon parents’ rights to teach their children religion.

In the Fourth Circuit, there was a 5-1 circuit split over “when” forced public school instruction violates the Free Exercise Clause. To denounce this split, the Board tried to dispute the ruling of Florey v. Sioux Falls School, which is a case that involved “students sitting through activities like a Christmas assembly with a “religious theme.” In the case of Florey, which was brought up in this case, Yoder was cited and it was stated that “forcing any person to participate in an activity that offends his religious beliefs will generally contravene the Free Exercise Clause.” In Wisconsin v. Yoder, the court ruled that Amish children could not be forced to attend public high school past eighth grade, as it violated their right to free exercise. The court ruled that individuals' interests under the free exercise clause outweigh the state's interests in requiring children to attend school beyond eighth grade. Both cases, but more specifically Yoder, recognized a parent's right to guide the religious upbringing of their children. 

When Yoder is applied to the case at hand, there are stark parallels. In both cases, the school policy infringes upon the right of parents to guide the religious upbringing of their children. In Yoder, the school had required Amish students to attend public school until graduating. The Amish parents argued that the “values taught there were in marked variance with Amish values expos[ed] the children to a ‘worldly influence,’” and pressure[d] them to “conform” to their peers.” The court ruled in favor of Yoder. In Mahmoud v. Taylor, the school mandated the inclusion of storybooks into the curriculum that contain topics that go against many religious beliefs. In both cases, parents argued that requiring their children to engage in material that violates their religious beliefs without giving them the option to receive notice or opt their kids out, places a burden on the right to freely exercise religion. Notice, however, that in Yoder, parents were not denied their right to freely exercise their religion because their children had not been compelled to change their religious beliefs. Yet in Mahmoud, the court ruled that there was no religious burden until the students were compelled “to change their religious beliefs or conduct.” This ruling seemingly contradicts the ruling of Yoder.

I strongly believe that this case should be ruled in favor of Mahmoud. A ruling in favor of the parents, who come from different religious backgrounds, would establish a precedent that further enables there to be a separation between church and state. Despite the Board claiming that the storybooks are “neutral” and therefore don't inflict religious beliefs onto children, there is nothing neutral in telling young children to “let go of doing gender correctly” and that “there is no single way to be a boy, girl, or any gender.” The Free Exercise Clause protects individuals from the government burdening their religious practice. By requiring students to participate in lessons that go against their religious convictions, the government is doing just the opposite. While the state has the role of promoting inclusivity in education systems, it cannot mandate the teachings of ideological views of gender and sexuality to young children. If the Board were to give parents back their parental right to receive a notice and the ability to opt their children out of lessons containing the storybooks, the inclusion of the storybooks in the curriculum would not violate the Free Exercise Clause. It would allow parents to retain their right to guide the religious upbringing of their children.

Ultimately, this case holds huge implications for the future. In Montgomery County, parents of over 160,000 students are cut out of the new policy. If the decision of the U.S. Court of Appeals for the Fourth Circuit is upheld, parents will no longer have the right to control their children's religious upbringing. This case would set the precedent that mandating ideological teachings that go against religious convictions in schools is constitutional. In the future, millions of parents will be unable to protect their young, vulnerable children from ideological ideas that are instructed toward them.

Therefore I ask you all to consider this question. When public schools require elementary school children to participate in instructions on sexuality and gender, are they placing a burden on parents' religious exercise if the instruction goes against their religious beliefs and happens without notice or the option to opt their children out? What do you guys think? Does this violate the Free Exercise Clause?