The Supreme Court threatens to bring “Don’t Say Gay” to every classroom in America

Remember Florida’s “Don’t Say Gay” law? The unconstitutionally vague law imposed such unclear restrictions on teachers who speak about sexual orientation or gender identity that many feared they could be fired merely for mentioning their spouses. Eventually, Florida agreed to a settlement which affirmed its right to do things like excluding Harvey Milk from the state history curriculum, but which also clarified that teachers may refer to the concept of being gay. Now, however, the Supreme Court will hear a case that could impose a regime similar to Florida’s original Don’t Say Gay law on every public school in the country. The plaintiffs in Mahmoud v. Taylor — a group of Muslim and Christian parents — don’t specifically ask the justices to ban discussions of homosexuality or gender identity from classrooms. Instead, they seek a right to be notified if their children are about to be taught from certain books they claim contain LGBTQ themes, as well as an opportunity to opt those children out of the lessons. To grant this request, they want the Court to embrace a legal rule that would place such heavy obligations on teachers who discuss these topics that it is unclear whether they would practically be able to do so. Furthermore, even if public schools tried to comply with these disclosure requirements, they are so burdensome that doing so would likely be impossible. The case arises out of a Maryland school district’s decision to approve a handful of books with LGBTQ themes for use in public school classrooms. While the plaintiffs and the school district appear to agree that some books that focus on queer characters were approved for some purpose, they can’t seem to agree on any of the other facts of the case. The plaintiffs, who are represented by the Becket Fund, an influential legal organization that often represents conservative Catholic causes, list seven books in their brief that they claim the school district approved for classroom use (though the brief acknowledges that two were later withdrawn). The district’s brief, by contrast, claims that only five books are at issue. Only three books appear on both parties’ lists. Indeed, as a federal appeals court that heard this case complained, the case record contains no 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.” It is quite odd that the highest Court in the nation decided to weigh in on this case before the lower courts have even determined what the case is actually about, especially given it’s not even clear that these books have been used in any classroom instruction whatsoever. The Court’s decision to prematurely take up the Mahmoud case, however, is consistent with the current crop of justices’ past behavior, which has favored religious — especially Christian — causes. Just one month after Justice Amy Coney Barrett’s confirmation gave the Republican Party a 6-3 majority on the Supreme Court, five of the Court’s Republicans handed down a sweeping decision that revolutionized the Court’s approach to religion, giving individuals who object to laws on religious grounds a broad new right to ignore those laws. And that’s just one of many decisions the Court has handed down since then which benefit conservative Christian causes. The Court’s Republican majority has appeared quite impatient to remake the law to be much more favorable to the religious right. Still, the legal rule Becket seeks in Mahmoud would be so disruptive to public schools that teachers and administrators can only hope that the justices stay their hand in this case. The Mahmoud plaintiffs would impose impossible obligations on public schools The First Amendment does not permit laws — or school district policies, for that matter — “prohibiting the free exercise” of religion. The key word here is “prohibiting.” As the Supreme Court said in Lyng v. Northwest Indian Cemetery (1988), the Constitution’s free exercise clause targets government actions that tend “to coerce individuals into acting contrary to their religious beliefs.” It’s certainly possible to imagine LGBTQ-focused classroom instructions that could violate this rule against coercion. If a teacher required a student who believes that being gay is a sin to write an essay repudiating that belief, for example, that would be unconstitutional. It would also likely be unconstitutional to require this student to read aloud from a pro-gay text. So it is possible that, once the Mahmoud case is fully litigated and the facts are known, that courts will discover that some of the plaintiffs’ rights were violated. Because the Supreme Court took this case up before any of that could happen, however, there is no way to know if the school district complied with the Constitution. Becket’s brief seeks to bypass the normal litigation process and instead impose a new obligation on public schools. Schools, they argue, must notify parents if their children will receive “instruction on gender and sexuality in violation of their parents’ religious beliefs,” and give those parents an opportunity to opt their child out of that instruction. If it were possible to limit this obligation solely to the plaintiffs in this case, then it might at least be logistically feasible for schools to comply with Becket’s proposed rule. But the Constitution does not permit schools to provide a service to people with anti-LGBTQ religious beliefs that it does not also provide to any other person of faith. Imagine, for example, that a public school offers kosher lunches to Jewish students who request one. Barring extenuating circumstances, it must also offer halal lunches to Muslim students, because the government cannot discriminate against Muslims and in favor of Jews. The same rule also applies to students with idiosyncratic religious beliefs. Suppose that a school has a dress code which requires all students to wear white shirts. If one student’s religion compels him to wear red shirts, and the school permits this student to do so, it must also allow another student from a blue-shirt-wearing religion to depart from the dress code. This rule against discrimination has profound implications, if Becket’s clients prevail. If a school gives a particular accommodation to people with one set of religious beliefs — the belief that their children should not be exposed to literature with LGBTQ characters — then it must provide this same accommodation to any other person with a religious objection to how the school operates. If Becket’s rule were implemented, in other words, every public school would have to provide advance notice to any parent about any lesson that might offend that parent’s religious views. But, in a nation as religiously diverse as the United States, it is simply not possible for public schools to comply with such an obligation. Consider, for example, Bowen v. Roy (1986), a case involving parents who objected, on religious grounds, to the government’s decision to issue a Social Security number to their daughter. According to the Court’s opinion in Bowen, the girl’s father believed that “he must keep her person and spirit unique, and that the uniqueness of the Social Security number as an identifier” would “‘rob the spirit’ of his daughter.” Under Becket’s framework, this parent could legally say that he needed to be notified — and allowed to object — before any attempt was made by a school district to assign a unique identification number to his daughter, and other parents might need to be given an opportunity to opt their children out of the school’s internal record-keeping system also. Consider, as well, a federal appeals court’s opinion in Mozert v. Hawkins County Board of Education (1987), a case very similar to Mahmoud where the appeals court rejected parents’ attempt to opt their children out of lessons they disagreed with on religious grounds. Unlike the parents in Mahmoud, however, the parents in Mozert had much broader religious objections. One of them opposed lessons that touched on themes as diverse as “evolution and ‘secular humanism,’” “futuristic supernaturalism,” “pacifism, magic and false views of death.” Under Becket’s proposed rule, in other words, schools must provide advance notice if their child will be exposed to works of fantasy like The Chronicles of Narnia or the Harry Potter series, to lessons about famous pacifists like Mahatma Gandhi or Martin Luther King Jr., to the concept of death, or to “secular humanism” — however it was defined. Indeed, if you spend enough time reading old legal cases brought by people of faith, it’s possible to uncover a nearly infinite variety of religious believers that, under the Constitution, must be treated with the same dignity and given the same rights as Becket’s clients in the Mahmoud case. If public schools were required to provide advance notice of any lesson that might offend any parent’s religious views, they would be overwhelmed by this obligation. Parents would be deluged with paperwork informing them of every minor detail of any upcoming lesson. Teachers would face the impossible task of tracking which students must be shielded from The Lion, the Witch and the Wardrobe, which students cannot be assigned an ID number, which students must be excused from lessons on the civil rights movement, and which students must never read a book where two women hold hands. And woe betide the poor educator who, without first warning their students’ parents, makes a spontaneous remark that might offend someone’s religious beliefs. As Justice Robert Jackson warned in a 1948 concurring opinion, “if we are to eliminate everything that is objectionable to any of these warring sects or inconsistent with any of their doctrines, we will leave public education in shreds.” Becket’s proposed rule is unworkable even in a limited form Perhaps recognizing that it would be impossible for schools to inform parents of every single lesson that might offend some person’s religious views, Becket spends much of its brief arguing that lessons concerning gender and sexuality are special. They even make the extravagant claim that “no state has ever affirmatively denied parents access to information and opportunity to opt-their child out from instruction on gender and sexuality.” The idea that children are not routinely exposed to stories about gender and sexuality would baffle anyone with even a passing familiarity with the Disney canon. Snow White, Sleeping Beauty, and Cinderella are all romances about women who marry princes. Some of the most famous, and widely taught, works of literature are musings on gender and sexuality. Think of the first line of Pride and Prejudice: “It is a truth universally acknowledged, that a single man in possession of a good fortune, must be in want of a wife.” But let’s assume that the Court decides to create a narrowly gerrymandered rule that gives the Mahmoud plaintiffs what they appear to want — advance warning and a right to opt their children out from any exposure to queer gender or sexuality. Even this relatively narrow rule would be a logistical nightmare for public schools, for the simple reason that teachers cannot possibly anticipate everything that will happen in their classrooms and advise parents of it in advance. Suppose, for example, that during a civics lesson on the structure of America’s executive branch of government, a student raises their hand and asks whether any members of President Donald Trump’s Cabinet are gay. Is the teacher required to halt the lesson, and immediately call every child’s parents to notify them, before they reveal the forbidden knowledge that Treasury Secretary Scott Bessent is a gay man? Or suppose that a teacher asks their students to read a novel of their own choosing and deliver an oral report on that book to the entire class. Must that teacher also call a halt to a student’s book report if the student selects the book Less, a Pulitzer Prize-winning novel about a gay writer? As a practical matter, the only way a school could comply with an obligation to inform parents of any instruction that touches on queer gender or sexuality would be to ban spontaneous discussion of these topics from the classroom altogether. What Becket is asking for is a “Don’t Say Gay” rule on steroids. The Supreme Court isn’t supposed to decide cases before they know what they are about The Constitution limits the federal judiciary’s jurisdiction to “cases” and “controversies” where one or more parties can articulate a concrete legal dispute with another party. For nearly all of American history, this provision has been understood to prevent the courts from answering hypothetical questions. When the Washington administration submitted a list of questions to the Supreme Court concerning the new nation’s treaty obligations to France, the justices responded with a letter informing President George Washington that they could not answer these questions unless they arose in a proper lawsuit. One important reason for this rule is that, when judges decide cases involving very particular facts, they can tailor those decisions to the specific dispute between the two parties. Instead of handing down a sweeping, quasi-legislative decree that all public schools are now bound by unworkable disclosure rules, they can craft a legal rule that vindicates a plaintiff’s constitutional rights without doing unnecessary harm to institutions. That is how the Mahmoud case should proceed. The Supreme Court should send it back to the lower courts without a decision — a process known as dismissing the case as “improvidently granted” — to allow those courts to figure out what is actually going on in this case. Again, it is entirely possible that some of the Mahmoud plaintiffs’ rights were violated by their children’s school district, and if that is the case then the courts should provide them with appropriate relief. What the Supreme Court should not do is hand down a blunderbuss of a legal rule — one that could very well throw every public school in the country into turmoil — based on a half-baked legal theory constructed by lawyers who don’t even know if their clients’ rights were violated yet. The highest Court in the country should actually bother to figure out if the Constitution was violated before they declare anything unconstitutional.

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The Supreme Court threatens to bring “Don’t Say Gay” to every classroom in America