Who bears the primary responsibility for shaping a child’s moral imagination: the state or their parents? Last term, in Mahmoud v. Taylor, the Supreme Court answered with uncommon clarity in cases where the parents’ religion is at stake: when public schools press lessons that undermine the faith of young pupils, parents may halt participation. The decision matters on three planes.
Doctrinally, it may signal a weakening of Employment Division v. Smith’s constraint on free exercise claims. Sociologically, it highlights the conflict that arises when government curricula collide with the religious sentiment of a substantial portion of the population, in this case shaped by the Abrahamic code. Politically, by giving religious families an opt-out from religiously burdensome curricula, it may paradoxically shore up public education against the voucher and homeschooling movements that demand a complete exit from government schools.
Mahmoud v. Taylor arose from the school district of Montgomery County, Maryland, which created an “inclusive” English language curriculum for students from kindergarten to fifth grade. In this curriculum, the students read or had read to them several books that many parents believed celebrated same-sex marriage and gender transitions. Initially, the county gave notice of the classes in which these materials would be used and permitted parents to opt out without their children incurring unexcused absences. But the county then changed course and required attendance. A coalition of Jewish, Christian, and Muslim parents sued, contending that the Court’s imposition of this curriculum violated their free exercise rights to bring up children in their faith.
The Supreme Court decision to uphold the parents’ free exercise claims rested on two doctrinal steps. First, Justice Alito, in his majority opinion, held that requiring children to attend lessons using these materials created “a real threat of undermining the religious beliefs of children” and thus burdened the parents’ free exercise rights. Second, the Court held that the neutrality of a law mandating curricula for all students did not insulate it from the strict scrutiny applicable to laws that burden religious exercise. While Employment Division v. Smith generally protected such neutral laws from free exercise challenge, the burden of this law was of the same type in the Yoder case, where the Court had upheld the Amish’s right to opt-out of a neutral legal requirement mandating high school education for fear that such instruction would distance their children from their parents’ religious beliefs and practices.
Both the doctrinal steps broke important new ground. First, in finding that material in a curriculum created a burden on free exercise rights, the court suggested that these readings could prove psychologically coercive to young children. Thus, as my friend Mark Movsesian observed in a recent podcast, Justice Alito applied an idea from Establishment Clause cases like Lee v. Weisman in which the Court previously held that government religious speech could be coercive in the context of a captive audience. This holding means that secular government speech can, in some contexts, provide the threshold for a free exercise violation.
And as the dissent notes, the scope of this holding will raise questions going forward for public schools. For instance, could a parent who professes a creationist creed opt out of a biology class in which evolution is taught? The theory for such a plaintiff parent under Mahmoud is that this curriculum would burden his free exercise rights. But the difference might well be that a high school student could be expected to treat the lesson as a scientific claim, which he could accept for purposes of the class but not otherwise. The burden on religious exercise is more questionable than in the case of a young child who would have trouble making such distinctions.
By giving religious families an opt-out from religiously burdensome curricula, Mahmoud v. Taylor may paradoxically shore up public education against the school choice movement.
Moreover, the compelling interest argument to meet strict scrutiny would also be stronger. Modern biology depends on the concept of evolution. English language instruction hardly depends on reading celebrations of same-sex marriage or gender transition. The problem here is that Montgomery County is going out of its way to morally indoctrinate children. Justice Thomas captures this aspect of the case when he observes that sex education is not a traditional curriculum in public schools. Thus, underlying the scope of Mahmoud’s holding may be an implicit history and tradition premise that has underpinned much of the recent Court’s constitutional analysis—in this case, the history and tradition of public education.
The Court’s circumscription of the scope of Smith’s famous neutrality holding may also have long-run implications. The Court was not clear about the exact nature of the burden on religious exercise that escapes the analysis of Smith. But Justice Alito did not rely on a fundamental due process right of parents to bring up their children—the so-called hybrid rights justification for Yoder’s application of strict scrutiny despite the law’s neutrality. Still, it is best to understand the exception to Smith as connected to children. Unlike adults, children cannot be expected to understand concepts like the neutrality of laws and thus may well feel the expression of neutral laws as offensive or undermining of their religion.
The Court’s treatment of Smith may also help set the stage for its overruling. When the Court considers overruling a case, it weighs whether the case’s holding has proved clear and workable. By widening an exception to Smith and not rooting it in a separate constitutional right, Alito, an avowed opponent of Smith, may hope to undermine its future viability.
This case also underscores the fault line that opens when governments promote a moral framework that opposes the religiously based morality of a majority or even a substantial minority of its people. The Abrahamic religions have been united for hundreds of years in teaching that the sexes are binary and that marriage is only between opposite sexes. It is true that some mainline Protestant and Reform Jewish congregations have recently jettisoned these positions, but these denominations remain a distinct and shrinking minority among these religions.
The social stakes of this case are thus higher than Yoder. The Amish are a tiny sect. Moreover, their almost complete rejection of modern life is likely to attract only a small band of adherents. In contrast, religions with traditional moral values remain a salient social and political force in America.
Nevertheless, same-sex marriage is now the law of the land. And progressives have assaulted binary gender categories. Given the liberal elites that exercise substantial control over education in much of the country, it is hardly a surprise that school curricula will often be designed to celebrate conduct and practices anathema to traditional religion. Literature for young children is usually celebratory. No one could read the books in this case without coming away thinking that same-sex marriage and gender transitions are good things. The teacher’s manual, suggesting that the instructor call out as “hurtful” the claim that a boy cannot become a girl, is designed to shut down religious and moral objections and assure civic conformity. The very decision to put these books in English language learning for young children is an attempt to make this perspective on sexual morality a seamless part of their upbringing, not a question that raises moral challenges.
The dissenters’ claims that these books are just factual depictions without normative resonance can be charitably described as playing economically with the truth. But they are nevertheless revealing. They do not wish to admit that creating a citizenry comfortable with same-sex marriage and gender transition is the point of the curriculum, because that seems like indoctrination. But such indoctrination is a logical demand of today’s progressive morality. To be sure, in a liberal society, it might seem possible to legalize same-sex marriage and even gender transitions, and yet at the same time not try to tamp down on strong criticism of these practices. But progressivism asserts that because such practices constitute identity, any such critique is incompatible with allowing such citizens to flourish. Hence, such moral opposition must be driven out of social discourse.
More generally, it is hard for those who see collective action as the way to bend history towards justice to permit pockets of what are regarded as reaction, even if they flow directly from traditional religious teaching. The same concern makes progressives leery of state support for private education, particularly of a religious nature. Opt-out authority in parents similarly creates a sphere of private authority within public education. It was Rousseau, whose political theories inspired liberals, progressives, and radicals, who attacked private education because it would simply transmit to the children the “prejudices” of their families. For him, education by the state is necessary to guarantee the primacy of the general will of democracy. Not surprisingly, praise of the democratic process by which local school curricula are established is a centerpiece of the dissenting opinion.
Given the Court’s constitutional authorization of school vouchers and the rise of homeschooling, progressives should be more grateful for this decision than their commentary has so far let on. Public school curricula for young and impressionable children hostile to traditional Abrahamic religions are recruiting sergeants for more school choice. And even when that movement is not successful in a particular state or locality, such curricula will encourage more homeschooling—the total opt-out option. Both results or worse for the progressive cause because they will allow students to be strengthened in what progressives would regard as prejudice and what conservatives regard as the well-formed traditions of centuries of religious teaching.
At the Founding, the state could leave religious morality largely alone because public, indeed elite, moral vocabulary aligned with that of most churches. Today, such alignment has diminished, and the government increasingly uses its classrooms to reshape the moral culture. But Mahmoud reminds us that the Constitution still grants parents the first claim on their children’s religious formation. When state instruction turns to dogma, the Constitution assigns parents the last word—and the right to withdraw.