Earlier this year, the Supreme Court heard oral argument in Mahmoud v. Taylor, the conservative legal movement’s most ambitious attempt yet to refashion this country’s 250-year-old history of separating church and state into an ironclad guarantee of Christian supremacy. On Friday, the six conservative Christian justices came through: In an opinion written by Justice Samuel Alito, the Court reframed mere acknowledgements of the existence of LGBTQ people as constitutionally intolerable burdens on religious freedom. The result in Taylor will empower bigots everywhere to excise public school curriculum of content they do not like, so long as they remember to include the words “religious beliefs” in their complaints.
Taylor is about the efforts of a school district in suburban Washington, D.C., to incorporate books with LGBTQ characters into elementary school English instruction, in light of studies that show that exposure to “inclusive curricula” makes children safer at school, reduces bullying, and leads to better academic performance. Among the titles the board selected are Uncle Bobby’s Wedding, in which a girl overcomes her reluctance to share her beloved Uncle Bobby with his fiancé when she discovers the joys of adding another person to her family. Prince & Knight is a coming-of-age tale about a prince whose quest to find a princess ends with him marrying a prince; Love, Violet is about a girl who initially feels shy around her crush, Mira, but eventually works up the courage to (please clutch your pearls now) give her a card on Valentine’s Day.
At first, school officials allowed parents to opt their children out of lessons involving these books. But after this proved to be a logistical nightmare in Montgomery County, Maryland’s largest school district, they decided the opt-out policy was not worth the trouble. This, of course, invited trouble in a different form: A conservative activist group representing a coalition of Muslim, Catholic, and Ukrainian Orthodox parents sued, arguing that the policy interferes with their ability to “guide the religious future and education of their children,” and thus violates their rights under the Free Exercise Clause of the First Amendment.
In his opinion for the six conservatives, Alito expressed his fervent agreement. “For many people of faith, there are few religious acts more important than the religious education of their children,” he writes. Many Americans, he points out, adhere to religions that view same-sex marriage as immoral, and treat gender as inextricably bound up with sex assigned at birth. Thus, he concludes, the inability of parents to shield their children from Uncle Bobby’s Wedding poses an “objective danger” to their fundamental rights.
I cannot stress enough how little law there is in Alito’s analysis, a jumble of conclusory statements characterizing, again, a couple of children’s picture books as “unmistakably normative,” imposing “moral messages” on “young, impressionable children,” and “clearly designed” to present same-sex weddings as “cause for celebration.” He concedes that “a classroom environment that is welcoming to all students is something to be commended,” but explains that it “cannot be achieved through hostility toward the religious beliefs of students and their parents.” What Alito does not acknowledge is that even if you accept his premise, he is simply making a policy choice about what brand of “hostility” the law protects: Making LGBTQ children and their families feel unsafe and unwelcome in school is fine. The possibility of the children of religious parents reading Uncle Bobby’s Wedding is not.
The basic problem with Alito’s logic, as Justice Sonia Sotomayor points out in dissent for the liberal justices, is that all these books do is acknowledge that in the real world, LGBTQ people (1) exist and (2) sometimes get married. The moral of Uncle Bobby’s Wedding will be instantly recognizable to anyone who has read a children’s book: It models strategies for facing change and uncertainty, and shows that things that feel scary at first often get resolved for the better. If Uncle Bobby’s Wedding imparted the same life lesson using a wedding between the titular character and a woman, no one would care about it. The only reason Alito cranked out a 40-page opinion railing about pro-gay agitprop poisoning malleable young minds is that Uncle Bobby’s Wedding includes characters who are, in his view, icky, sinners, or some combination thereof.
The balance of the majority opinion is littered with culture-war rhetorical flourishes that make clear just how much Alito relishes sticking it to the woke agenda. His introduction drips with scorn for the school board, which had the gall to consider questions like “Is heteronormativity reinforced or disrupted?” during the selection process. He goes out of his way to describe characters whose gender identity is inconsistent with their sex assigned at birth as “apparently” transgender, an unsubtle wink at activists who deny the concept of gender identity. In a footnote, Alito explains his use of “LGBTQ+-inclusive” to collectively describe the books at issue, but then, even after defining the term, he takes the unusual step of using scare quotes throughout. This is the sort of thing you only do if you are scornful of the very idea that the books are, in fact, “inclusive,” as opposed to tools of left-wing indoctrination that you are honor-bound to regulate.
Vile as Alito’s culture-war dog-whistles are, the most impactful takeaway from Taylor is the new era of First Amendment law that begins today: Going forward, any government action that subjects children to instruction that “poses a very real threat of undermining” their parents’ religious beliefs constitutes a suspect burden on their religious freedom. This is a cartoonishly broad test with no obvious limiting principle: As Sotomayor writes, “books expressing implicit support for patriotism, women’s rights, interfaith marriage, consumption of meat, immodest dress, and countless other topics” could be in jeopardy under the majority’s reasoning.
The test is not limited to reading materials: Again, it is left to Sotomayor to point out that if a student calls a gay classmate a “sinner,” there is no action the teacher can take to protect the bullied student that does not risk illegally “undermining” the other student’s “religious beliefs.” It is also not limited to disputes over LGBTQ-adjacent content: Now that the Court has allowed homophobic parents to prevent their children from encountering Uncle Bobby’s Wedding, I have no idea why white supremacist parents couldn’t use the same argument to object to the interracial marriage portrayed in Uncle Bobby’s Wedding—or, for that matter, to the fact that their white children have to read it in the presence of Black classmates.
Alito wraps by asserting that his opinion does not create a right for parents to “micromanage public school curriculum,” and only allows them to opt children out of content that conflicts with their sincerely held beliefs. But as Sotomayor points out in dissent, this is simply not how the real world works: Public school districts do not have the time or resources to police the content of elementary-age classroom instruction on a minute-to-minute basis. The likeliest outcome—the outcome the Christian activists who brought this case sought all along—is that schools will decide not to teach “controversial” subjects at all, essentially handing veto power over their curriculum to any parents who are sufficiently loud and unpleasant.
The result in Taylor, as Sotomayor puts it, “strikes at the core premise of public schools”—that children of all faiths and backgrounds come together to learn about a “range of concepts and views that reflect our entire society.” It is the product of a conservative supermajority whose members think of the Constitution as a compact that applies not to all Americans, but to people who look like them: wealthy, conservative Christian lawyers who do not interact with anyone other than wealthy, conservative Christian lawyers, outside of occasionally tipping a caddy at the Congressional. For them, the First Amendment does not guarantee freedom of religion. It protects their power to privilege their religion over the religions of everyone else.
