If you wanted to design a case to encourage the Supreme Court’s conservative majority to keep expanding its application of the Free Exercise Clause, you could hardly do better than Mahmoud v. Taylor. This case began in 2023 when the Montgomery County School Board in Maryland rescinded a policy that parents could opt their elementary school children out of instruction in the school district’s mandated “inclusive” storybooks, which introduced students as young as kindergarten to gender transition, pride parades, and same-sex romance. In response, over 1,100 religious parents, including Muslims, Jews, and Christians, signed a petition asking the board to reinstate the policy. When the school board refused to relent—even though the district provided similar state-mandated opt-outs for sex-ed instruction in health classes, including in high school—the parents sued, requesting an injunction forbidding the school district from implementing the policy while the case was being litigated. The parents lost in federal district court and before a Fourth Circuit panel, but in January the Supreme Court agreed to hear the case.
The facts don’t look promising for the school district. When the parents asked for the opt-out to be reinstated, school board members said the parents were promoting hate and likened them to “white supremacists” and “xenophobes.” At the very least, these uncharitable comparisons indicate more than a little anti-religious animus, which the Supreme Court has repeatedly said public officials must avoid. As well, Maryland statutes require schools to “establish policies, guidelines, and/or procedures for student opt-out regarding instruction related to family life and human sexuality objectives.”
The content of the books, however, might be the most serious problem for the district. One book, Pride Puppy, directs three- and four-year-olds to search for various objects in illustrations of a pride parade, including leather, a lip ring, underwear, and drag kings and queens. Another, Intersection Allies, intended for grades K–5, has children explore the meaning of transgender and their preferred pronouns along with telling them to “rewrite the norms.” Similar content is included in Jacob’s Room to Choose, which encourages elementary school children to celebrate gender-neutral bathrooms.
Even the district elementary-school principals objected to these books, with their union chair writing in a memo to central office staff that it was “problematic to portray elementary school age children falling in love with other children, regardless of sexual preferences.” They also said the books encouraged “shaming” dissenting students and were “dismissive of religious beliefs.”
While many parents, regardless of their religious beliefs, would oppose these books simply because of their premature sexualization of children, whether homosexual or heterosexual, the plaintiff parents’ strongest claim falls under the Constitution’s Free Exercise Clause. The court has consistently buttressed free exercise rights over the last 14 years. The issues in this case also overlap with the court’s reasoning in Trinity Lutheran v. Comer, Espinoza v. Montana, and Carson v. Makin, which held that religious individuals and students could not be excluded from “otherwise available benefits” because of their religious status or religious beliefs. Carson, in fact, held that religious schools had to be included in Maine’s voucher program. Justice Stephen Breyer predicted in his dissent that the majority’s reasoning would eventually compel the court to require states to approve religious charter schools (an issue the court is also taking up this term in St. Isidore of Seville Catholic Virtual School v. Drummond) and even vouchers, asking if “the State must pay parents for the religious equivalent of the secular benefit provided.”
