On Tuesday, the Supreme Court heard oral argument in Mahmoud v. Taylor, a case arising from religious conservatives’ hostility to a Maryland school district’s inclusion of a handful of books with LGBTQ characters in the schools’ language arts curriculum. Montgomery County Public Schools serves over 160,000 students, and updated its reading material in 2022 to better reflect the diversity of its community, and promote respect for that diversity among its students. This is a problem for right-wing activists who do not think queer people deserve respect.
In May 2023, the Becket Fund for Religious Liberty filed a federal lawsuit on behalf of local parents who argued that the books promote concepts like “transgenderism” and “same-sex marriage,” thus violating the parents’ constitutional rights. Becket lawyers asked the court for a preliminary injunction that would block the board from allowing children to read, listen to, or discuss the books, and require it to provide parents with the opportunity to opt out of “any other instruction related to family life or human sexuality” going forward.
Both the district court and the Fourth Circuit Court of Appeals denied this relief. Why? Because Becket provided no actual evidence about how the books were being used in the classroom, and what instruction, if any, students were receiving, creating a record the Fourth Circuit described as “scant,” “sparse,” “very limited,” “threadbare,” and riddled with “gaps.”
“None of these declarations provides any 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,” the Fourth Circuit wrote. “We do not know whether these conversations stick to language arts purposes, if conversations about the storybooks’ characters and themes simply expose students to viewpoints the parents find objectionable, or if discussions have divested into subtle or not-so-subtle indoctrination that pressures students to act or believe contrary to their religious upbringing.” In other words, the Fourth Circuit did not foreclose the possibility that some facts and circumstances could lead to a constitutional violation, but reasoned that extending preliminary relief requires more than mere statements of religious objection.
Or at least, it used to. Tuesday’s oral argument confirmed that there’s no settled understanding of what is actually happening with the books in Montgomery County Public Schools. And in the absence of a real record supporting the anti-LGBTQ parents’ argument, the Court’s Republicans made up their own alternative facts, further empowering right-wing activists to constitutionalize their bigotry.
Justice Ketanji Brown Jackson tried to head off this result, arguing that the justices simply “don’t at this moment, based on the record…know that these books aren’t just sitting on the shelves.” For Jackson, if part of the argument turns on where the books were and how they were used, the Court should find out where the books were and how they were used before doing anything hasty. “Why wouldn’t we wait until we have a record regarding those things before we make any legal pronouncements about what’s happening in this case?” she said.
The Court’s conservatives had a better idea: They could make up their own record instead. Justice Neil Gorsuch wanted a record of teachers indoctrinating impressionable toddlers, so he acted as if that was the record he had. “We also have in the record some guidance materials for teachers, one of which is, if a student says that a boy can’t be a girl because he was born a boy, a teacher is to respond: ‘That comment is hurtful, and we shouldn’t use negative words to talk about people’s identities,’” he said. “Is that just ‘exposure,’ or is that something else for a three-to-five-year-old?”
The attorney for the school district, Alan Schoenfeld, responded by emphasizing that “the record is seriously underdeveloped on whether and how these support materials are used.” He reiterated that these were only recommended potential answers, and started to say, “There’s nothing in the record about whether any teacher—” when Gorsuch cut him off. “Let’s say a teacher does as instructed, though, and uses that,” he said. “Is that ‘exposure,’ or is that ‘coercion’ in your world?”
Justice Amy Coney Barrett also tried to create facts where there are none, by drawing inferences from the school district briefly permitting and then deciding against allowing opt-outs. “There’s been some question about the record and whether these were just books on the shelf, or whether they were actually used in the classroom,” Barrett said. “How could it be that the opt-out policy became unmanageable if they weren’t part of the instruction?” After all, if the books were “just on the shelf,” she said, there would be “nothing to opt out of.”
Barrett treated her own inference that the books were used as permission to further assume the school district was using the books in a way she wouldn’t like. “It’s saying, ‘This is the right view of the world. This is how we think about things,’” she said. “This is how you should think about things. This is like 2 plus 2 is 4.” Schoenfeld said he disagreed with that characterization of the record. “Let’s say that is in the record,” Gorsuch replied.
Finally, Justice Samuel Alito constructed a long hypothetical in which a teacher specifically badmouthed conservative Catholics like him. First, Alito told Schoenfeld to suppose a school said that “same-sex marriage is legal in Maryland and it’s a good thing—it’s moral, it makes people happy, same-sex couples form good families, they raise children.” Then, he told Schoenfeld to imagine that the school told students that Catholics “think that it’s not moral, but they’re wrong and they’re bad, and anybody who doesn’t accept that same-sex marriage is normal and just as good as opposite-sex marriage is not a good person.”
In response, Schoenfeld pinpointed where the hypothetical went off the rails. Everything that came after the disagreement Alito attributed to Catholics writ large was “directly derogatory of a particular set of religious beliefs,” said Schoenfeld. In the district’s view, telling kids that same-sex couples can legally marry and have families is fine, and telling kids some people don’t like that is also fine, but telling kids any of those people are bad is not fine.
Alito seemed unsatisfied with this response, and suggested that acknowledging support for marriage equality at all should have been objectionable, too. “The school can teach students certain moral principles that are highly objectionable to parents, and that’s okay?” he asked, sounding outraged.
Judges often use hypothetical questions to tease out how legal rules would apply in different scenarios. Mahmoud v. Taylor was the rare case where the Court could basically only ask hypotheticals because they had nothing else to go off of. The Court could have waited for the case to actually go to trial and develop a meaningful factual record. But the reality of education in Montgomery County takes a backseat to the conservative justices’ persecution complex.
