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US Supreme Court grants emergency relief in California gender identity case

The Supreme Court on Monday granted emergency relief to parents challenging California school policies on student gender identity, allowing a district court injunction to take effect while litigation continues in the United States Court of Appeals for the Ninth Circuit.

In an unsigned per curiam opinion, the Court held that the Ninth Circuit’s stay of the injunction was not justified under the governing four-factor test. It found that the parents, particularly those seeking religious exemptions, are likely to succeed on the merits “of their Free Exercise Clause claim.” It further noted that the nondisclosure rules are likely trigger strict scrutiny because they substantially interfere with “the right of parents to guide the religious development of their children.” The Court concluded that parents asserting due process claims are likely to prevail, citing longstanding precedent recognizing parental authority over children’s upbringing and education.

In a dissent, Justice Elena Kagan, joined by Justice Ketanji Brown Jackson, argued that the Court intervened prematurely while the case is still developing in the lower courts: “If nothing else, this Court owes it to a sovereign State to avoid throwing over its policies in a slapdash way, if the Court can provide normal procedures.” Justice Amy Coney Barrett, joined by Chief Justice John Roberts and Justice Brett Kavanaugh, indicated that she would have granted relief to the teacher plaintiffs.

The split decision follows a legal battle between religious parents and educators in California. Two sets of Catholic parents, represented by the Thomas More Society, challenged state school policies which prevent schools from disclosing students’ gender identities to their families, arguing that they violate the First Amendment’s Free Exercise Clause and the Fourteenth Amendment’s Due Process Clause. The plaintiffs stated that these policies misled them and secretly facilitated the children’s social transition. In contrast, California argued that students have the right to privacy regarding their gender expression, particularly if they fear rejection from their families. The state asserted that its school policies and state law are designed to strike a balance between parents’ rights and the students’ need for privacy.

The case will return to the Ninth Circuit while the district court’s injunction remains in effect for the parent class.

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New SOGIESC publication: ‘Queering Courts’

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New SOGIESC publication: ‘Queering Courts’

The monograph ‘Queering Courts’ is now also available outside of the Low Countries through Amazon (https://www.amazon.com/Queering-Courts-Analysing-marriage-European/dp/B0GK94TXKJ/ref=sr_1_1.

New SOGIESC publication: ‘Queering Courts’

With the use of queer legal theory, ‘Queering Courts’ analyses how courts such as the European Court of Human Rights, the Court of Justice of the European Union, and the United States Supreme Court interpret and apply the notions of ‘sex’, ‘gender’, ‘sexuality’ and ‘sexual orientation’ in their equal marriage rights case law.

The research reveals that courts interpret the notions as binary constructs with the dominance in the hierarchies commonly anchored on certain heteronormative beliefs. This results in the discrimination, non-inclusivity and ‘othering’ of all that do not fall within the dominant part of the hierarchies, making them thus ineligible to enjoy ‘full’ or ‘equal’ marriage rights. While the decision-making of the courts is influenced by factors such as history, culture, religion, politics, etc., judicial self-restraint is oftentimes exercised for credibility, legitimacy, and authority reasons. The research suggests that courts should ‘queer’ their approaches for more inclusive, diverse, and universal adjudication. Until then, the enjoyment of full equal marriage rights is only for the heterosexually privileged.

– Dr Alina Tryfonidou: “Queering Courts is an exceptional and timely contribution to the literature on the equal marriage rights of same-sex couples. Dr. Shahid offers a masterful and crystal-clear analysis of the jurisprudence of three major courts – the ECtHR, the CJEU and the US Supreme Court – engaging rigorously with their case law while illuminating, through the lens of queer legal theory, how these courts understand and deploy the concepts of sex, gender, sexuality and sexual orientation. Written in crisp, accessible language and grounded in original scholarly insight, this book provides a refreshing, innovative and genuinely enlightening perspective. A delight to read and a significant intervention in the field.”

US appeals court upholds school’s policy to use preferred pronouns

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US appeals court upholds school’s policy to use preferred pronouns

The US Court of Appeals for the Fourth Circuit ruled last Wednesday that
Montgomery County, Maryland, could require teachers to use students’
preferred pronouns and prohibit teachers from sharing information about
gender identity with parents.
The 2-1 opinion, written by Judge Robert Bruce King, held that the school
board’s policy requiring teachers to use the preferred pronouns of
students and not discuss gender information with parents did not violate
the plaintiff’s First Amendment rights. The plaintiff, Kimberly Ann Polk,
was a substitute teacher in Montgomery County and argued that her
Christian beliefs prohibited her from using a student’s pronouns that are
different from their biological sex. She claimed the board’s policy
violated her right to freedom of religion. The Court of Appeals, however,
found that the school board’s policy was “neutral” and of general
applicability. As such, the board’s goal of preventing discrimination and
protecting student safety was sufficient to overcome any burden on Polk’s
religion.
Plaintiff Polk also asserted the policy violated her free speech rights
by “compelling her, on condition of continued employment, to communicate
misleading messages to parents.” The Court of Appeals similarly disagreed
with this argument by stating that communicating with students and parents
is part of a teacher’s official duties. Because of this, Polk was not
acting as a private speaker when adhering to this policy, but rather a
government employee. The court ruled that, in her capacity as a teacher
and government employee, Polk did not have the First Amendment right not
to follow the policy.
This decision upholds the lower court’s dismissal of Polk’s free speech
and religion claims. Polk also asserted that the school board violated the
Civil Rights Act of 1964 by denying her a religious accommodation to the
policy. This law prohibits employers from failing or refusing “to hire or
to discharge any individual, or otherwise to discriminate against any
individual” because of their religion. The Fourth Circuit again upheld the
lower court’s denial of an injunction for this because Polk’s alleged
harms that would justify the injunction were the violation of her
constitutional rights. Because the court dismissed her First Amendment
claims, Polk could not argue her rights were violated.
This case comes against the backdrop of a divided judiciary on
transgender issues. A federal judge in California found last month that
schools cannot bar teachers from telling parents their children are
transgender. The Ninth Circuit Court of Appeals has temporarily blocked
this ruling.
The post US appeals court upholds school’s policy to use preferred
pronouns appeared first on JURIST - News.

Source: https://www.jurist.org/news/2026/02/us-appeals-court-upholds-schools-policy-to-use-preferred-pronouns/

Dangerous New Reporting Guidelines for US Annual Human Rights Reports

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Dangerous New Reporting Guidelines for US Annual Human Rights Reports

The U.S. State Department recently sent new instructions to all U.S. embassies to guide in the preparation of the State Department’s 2025 Human Rights Reports. (See our LinkedIn post on this here.) As expected, they are removing the section of the annual report that covers abuses against LGBTQI+ persons. But even more alarming, they are now requiring reporting on transgender medical care as a human rights abuse involving the “chemical or surgical mutilation of children.” In short, the reports are no longer even vaguely credible on LGBTQI+ issues and are now creating an anti-rights framework to legitimize attacks against our communities.

The Council for Global Equality (CGE) has long encouraged human rights groups to report abuses to U.S. embassies for inclusion in the annual human rights reports. Over the past years, based on those local partnerships and the work of a dedicated LGBTQI+ policy team at the State Department in Washington, the U.S. human rights reports became increasingly comprehensive and were used by the United States and many other governments to formulate policy and adjudicate refugee claims. Unfortunately, based on recent instructions and the last 2024 reports, we now know the next reports will no longer be credible on LGBTQI+ and related issues, and CGE fears that the continued submission of information to U.S. embassies could create risks for the community itself.

Given this new policy directive, we encourage groups to maintain cautious contact with trusted U.S. embassy staff, but we also urge groups to exercise extreme caution if you plan to submit information to U.S. embassies or the State Department, as we fear the information could be twisted or used against community interests. For refugee and asylum adjudication purposes only, there may be ways to submit relevant information on extrajudicial executions, torture, or cruel, inhuman, or degrading treatment of LGBTQI+ persons, but please reach out to us (info@globalequality.org) or refugee groups directly to discuss how best to present and submit that information so that it is not cited inappropriately.

At the same time, we want to encourage all human rights groups to continue to document and share information widely on abuses targeting LGBTQI+ persons — that information is more important than ever given the current backlash. Many of you already have robust dissemination networks for your data, including other embassies and the European Union, but please feel free to reach out to discuss how to ensure your documentation reaches the broadest possible audience. And please note that the following CGE member organizations and allied human rights groups regularly compile human rights reports that document violations against LGBTQI+ people globally, which are often useful for policymakers in Washington and beyond: Amnesty International USA, Global Justice Institute, Human Rights First, Human Rights Watch, ILGA, Outright International, Synergía – Initiatives for Human Rights, and The Williams Institute. Please reach out to those groups directly or reach out to us to help make connections to share your documentation.

Tokyo High Court ruling upholds same-sex marriage ban

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Tokyo High Court ruling upholds same-sex marriage ban

The Tokyo High Court on Friday issued the final pending appellate decision in Japan’s nationwide same-sex marriage litigation, holding that the country’s statutory framework limiting marriage to opposite-sex couples does not violate the Constitution of Japan. The court dismissed the plaintiff’s claims of breach of constitutional guarantees to equality and individual dignity. It rejected their request for damages on the basis that no constitutional injury had been established.

The ruling stands in contrast to earlier high court judgments issued between 2021 and 2024. Courts in Sapporo, Nagoya, Osaka, Fukuoka, and in an earlier Tokyo appeal found aspects of the current marriage framework unconstitutional. Several of those courts held that Article 14(1) of the Constitution prohibits discrimination based on sexual orientation and justified their decisions by Article 24’s requirement for marriage and family law to be based on “individual dignity” and the “essential equality of the sexes.” The latest decision, by contrast, concluded that the legislature retains broad discretion to define marriage, with Presiding Judge Yumi Toa affirming that provisions governing same-sex marriage ought to be thoroughly deliberated in the legislature.

The court also rejected the argument that denying same-sex couples access to marriage infringes Article 14’s equality guarantee, holding that distinctions grounded in the current civil code definition do not amount to unconstitutional discrimination.

Many municipalities and prefectures across Japan offer recognition through partnership certificates for same-sex couples. However, these frameworks do not provide the full legal rights associated with marriage, such as automatic parental recognition, inheritance, and spousal tax treatment.

The decision creates a direct conflict among courts, leaving Japan without a uniform interpretation of constitutional protections relating to marriage. Lawyers for LGBT & Allies Network (LLAN), which has previously translated major marriage-equality rulings, noted the significance of the divergence between this outcome and the 2024 Tokyo High Court judgment that held the ban unconstitutional.

The issue is now expected to proceed to the Supreme Court of Japan, a unified ruling would determine whether the Constitution permits or requires marriage equality and could clarify the relationship between Articles 14 and 24 in the context of contemporary family structures.

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Ruling of the Court of Justice of the European Union in case C-713/23 Wojewoda Mazowiecki: Member States must recognise same sex marriages lawfully concluded in another EU country when couples exercise their freedom of movement

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Ruling of the Court of Justice of the European Union in case C-713/23 Wojewoda Mazowiecki: Member States must recognise same sex marriages lawfully concluded in another EU country when couples exercise their freedom of movement

“Article 20 and Article 21(1) TFEU, read in the light of Article 7 and Article 21(1) of the Charter of Fundamental Rights of the European Union,

must be interpreted as precluding legislation of a Member State which, on the ground that the law of that Member State does not allow marriage between persons of the same sex, does not permit the recognition of a marriage between two same-sex nationals of that Member State concluded lawfully in the exercise of their freedom to move and reside within another Member State, in which they have created or strengthened a family life, or the transcription for that purpose of the marriage certificate in the civil register of the first Member State, where that transcription is the only means provided for by that Member State for such recognition.“

__________________________________________

The Network of European LGBTIQ* Families Associations (NELFA) welcomes today’s ruling of the Court of Justice of the European Union in case C-713/23, which confirms that Member States must recognise same sex marriages lawfully concluded in another EU country when couples exercise their freedom of movement.

The case concerned two Polish citizens who married in Germany and asked for their marriage certificate to be transcribed into the Polish civil register. Polish authorities refused, citing domestic law that bans marriage for same sex couples. The Court found that this refusal violates EU freedom of movement and the right to private and family life, making clear that Member States cannot deny the marital status that couples have legally acquired elsewhere in the Union.

The judges confirmed that such recognition does not force a Member State to introduce marriage equality in its national legislation. What it does require is equal treatment in procedures that already exist. If a country provides a single route to recognising foreign marriages, it must apply that route without discrimination based on sexual orientation.

NELFA strongly welcomes this decision. It affirms what we have been saying for years. Rainbow families must not lose their rights when crossing borders inside the European Union. Our members span countries with very different legal systems, and we constantly see the harm caused when children and parents move from a country that recognises their family to one that denies it. Today’s ruling sends a clear message that EU law stands firmly on the side of family unity and legal continuity.

This judgment also highlights the urgency for many Member States to update their laws and administrative procedures so they no longer create obstacles for LGBTIQ* families. The Court’s reasoning mirrors what civil society, legal experts and the European Court of Human Rights have repeatedly stressed. In 2023, the Strasbourg Court held that Poland failed to provide any legal framework for same sex couples, reinforcing the need for structural change.

NELFA will continue to advocate for full recognition of rainbow families across the EU, including parenthood recognition, access to parenthood rights, and the removal of discriminatory barriers in cross border situations. This ruling is another strong building block that moves Europe closer to a Union where all families are treated with dignity and respect, everywhere.

For media inquiries: info@nelfa.org

See: https://nelfa.org/2025/11/25/nelfa-welcomes-landmark-eu-court-ruling-on-cross-border-recognition-of-same-sex-marriages/

Find the judgment here: https://curia.europa.eu/juris/documents.jsf?num=C-713/23

US Supreme Court declines to revisit same-sex marriage decision

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US Supreme Court declines to revisit same-sex marriage decision

The US Supreme Court declined to hear an appeal on Monday that sought to overturn the decade-old landmark decision legalizing same-sex marriage.

The appeal was filed by Kim Davis, a former Kentucky county clerk who refused to issue marriage licenses to same-sex couples in 2015, defying a court order.

Davis asked the Supreme Court to reconsider Obergefell v. Hodges, which legalized same-sex marriage nationwide. She argued that the ruling unconstitutionally violated her right to practice religion freely under the Free Exercise Clause. Hearing the first appeal of the case, the US Court of Appeals for the Sixth Circuit held that, in this instance, her First Amendment rights could not be violated in her capacity as a public official.

“When Davis denied Plaintiffs a marriage license, she was wielding the ‘authority of the State’—not ‘function[ing] as a private citizen,” Judge Helene N. White, nominated by former President George W. Bush in 2008, wrote.

Davis also sought to reverse a verdict that required her to pay more than $100,000 in damages, $246,000 in legal fees and $14,000 in expenses to the couple whom she denied a marriage license. The Sixth Circuit affirmed the trial court’s judgment against Davis in March.

Obergefell held that denying same-sex couples the right to marry “demeans” and “stigmatizes” them, “diminish[es] their personhood,” and “subordinate[s] them.”

“Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right,” Justice Anthony Kennedy wrote in the landmark opinion.

Several organizations celebrated the Supreme Court’s decision not to hear Davis’s appeal. In a statement Monday, the ACLU wrote: “Our freedom to marry remains the law of the land.” The Human Rights Campaign wrote: “Love is (still) love… We won’t let up. We will keep fighting until all of us are free.”

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Interesting Article – Repost: Laboratories of Authoritarianism [U.S. Supreme Court]

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Interesting Article – Repost: Laboratories of Authoritarianism [U.S. Supreme Court]

by Sarah Medina Camiscoli

In Mahmoud v. Taylor, the U.S. Supreme Court expanded the 1st Amendment Free Exercise Clause to grant conservative religious parents a constitutional right to remove their children from any classroom where a teacher includes LGBTQAI+ people in the curriculum. In effect, the Court has allowed public schools to discourage mutual tolerance, parents to opt out of Equal Protection, and fringe legal strategists to continue to use children’s constitutional rights as a test case for authoritarianism. Youth rights provide fertile ground for authoritarian policies as young people are a vulnerable population, their autonomy is almost entirely up to the discretion of their parents and the state, and lawmakers can easily cloak their desires to remake government institutions under the guise of care, protection, and parent rights. However, youth rights are not entirely separate from those of the rest of society – and the erosion of children’s rights becomes the foundation upon which other rights are eroded.

Constitutional test subjects

Today, a transgender girl in 4th grade can wake up to news anchors discussing how the highest court in the land ruled in Mahmoud v. Taylor that schools may not read books that include trans voices or celebrate families and friends who embrace girls like her. When that 4th grader arrives at school, she might see Mahmoud in action when her teacher hastily moves her peers to different classrooms before reading a book with trans characters because parents must provide “permission” for their children to even acknowledge trans lives. In many states, that same young person will learn that her doctor can no longer provide her with gender-affirming medical treatment because of the Supreme Court’s ruling in Skrmetti v. United States. If that young person seeks a counselor to work through the psychic harm of these experiences at school or in doctors offices, the counselor might tell her that trans people do not exist, that her parents are causing harm by providing affirming education and healthcare, and suggest that she consider conversion therapy in a local church. And if the child and her guardian challenge that practice as unethical and harmful, that therapist might be able to assert that the Supreme Court interpreted the First Amendment to develop a constitutional right to do so in Chiles v. Salazar. Keep in mind that this child cannot vote, run for office, and make campaign contributions (but, ironically, she can work certain jobs and pay taxes). This child is not learning in a healthy democracy. She is living as the constitutional test subject of legal strategists.

Scholars of authoritarianism discuss two “soft guardrails” of democracy: 1) “mutual toleration” — a shared understanding that people and parties with different views and values must respect one another as legitimate to promote and uphold democratic institutions; and 2) “forbearance” — the understanding that government actors must demonstrate restraint in their roles to promote checks and balances on state power. These “norms of toleration and restraint” are what keep people with different politics, values, and lifestyles from trying to destroy one another; and the place where they are most often taught and learned are in public schools. But the Court has allowed fringe legal strategists to decay those norms and attack public education, in many cases using children’s rights to further polarize political parties, dismantle social welfare, and entangle courts in culture wars. The Supreme Court has ruled in favor of these legal strategists to roll back a variety of children’s rights which in turn erode rights, resources, and liberties for everyone. Their success includes eroding bodily autonomy at the site of the constitutional rights of undocumented children (Azar v. Garza (2018)), attacking healthcare at the site of the constitutional rights of transgender children (United States v. Skrmetti (2025)), shrinking higher education at the site of constitutional rights of students of color (Students for Fair Admissions (SFFA) v. Harvard (2023)), and now, decimating equal protection and public education at the site of constitutional rights of LGBTQAI+ elementary school students (Mahmoud v. Taylor (2025)). Legal strategists have realized that the rights of vulnerable children provide the perfect site to experiment with culture wars and unquestioned obedience to authorities. Given the success of these experiments, I have developed the term laboratories for authoritarianism to describe how children’s constitutional rights have become a vehicle for fringe legal strategists to craft jurisprudence that undermines democracy and promotes authoritarianism.

Mahmoud v. Taylor provided a particularly powerful vehicle for this project as it attacked constitutional rights within public schools. Public schools are a battleground for democracy, as they are the single institution where the most people spend the most time in the United States. They serve as “the most pervasive means for promoting our common destiny.” (Sotomayor, dissenting, at 1, Mahmoud v. Taylor). In eroding constitutional rights for such a vulnerable group in a stronghold of democracy, Mahmoud obstructs public schools from promoting mutual toleration or teaching an accurate understanding of the Constitution among some of our nation’s most vulnerable children.

Denying marriage equality in public schools

The majority opinion first discourages public schools from promoting mutual toleration and understanding their constitutional rights by asserting the following message infringes on the religious liberty of parents: “Two people can get married, regardless of whether they are of the same or opposite sex, so long as they “love each other.” (Mahmoud v. Taylor at 23). According to the majority, celebrating the constitutionally protected marriage between people of the opposite sex is acceptable, but celebrating the constitutionally protected marriage between two people enshrined in Obergefell v. Hodges may cause “destruction” for religious communities. While the dissent describes this reasoning as pure “absurdity,” the decision will discourage public schools from affirming the constitutionally protected right to marriage equality or promoting mutual toleration of marriage traditions and norms across religious and cultural identities. In enshrining this absurdity in the Constitution, the Court also undermines the intolerance against the children of LGBTQAI+ couples explicitly rejected in Windsor v. United States (2013). In effect, the Court encourages public schools to erode mutual tolerance and constitutional literacy by invisibilizing the constitutional rights of LGBTQAI+ families, “mak[ing] it even more difficult for [] children to understand the integrity and closeness of their own family and its concord with other families in their community and their daily lives.” Amicus Brief for Students Engaged in Advancing Texas at 29 (citing Windsor).

Disregarding constitutional protections against discrimination

The majority further discourages public schools from promoting mutual toleration and accurate understandings of constitutional rights when recasting the following message as another unconstitutional burden on religious liberty: “Sex and gender are [not always] inseparable” (Mahmoud v. Taylor at 3). In terms of mutual toleration, the majority “fail[s] to accept and account for a fundamental truth: LGBTQ people exist. They are part of virtually every community and workplace of any appreciable size.” (Sotomayor dissenting, at 21). By asserting that the Free Exercise clause “requires the government to alter its programs to insulate students from that “message,” the Court forecloses the possibility of schools teaching public school students, especially those who currently or may later identify as LGBTQAI+, about their constitutional rights to Equal Protection.

For example, in Bostock v. Clayton County, the Court determined that it is impossible to discriminate against homosexual or transgender people without engaging in sex discrimination. See Brief for Students Engaged in Advancing Texas et al. as Amici Curiae 24. However, under Mahmoud, a school cannot affirm that gender and sex are separable, foreclosing the possibility of a public school student even conceptualizing the idea of LGBTQAI+ people existing with constitutional rights. To teach an accurate understanding of the Constitution and basic rights in this country, public schools would need to have the authority to explain that LGBTQAI+ people exist and that “the differential treatment by the state” as compared to heteronormative or cisgender should “amount[] to impermissible sex discrimination under Equal Protection.” Amicus brief for Students Engaged in Advancing Texas at 24. However, the Court instructs schools to neglect existing constitutional protections for isolated minorities like the LGBTQAI+ community and, in some ways, encourage students to further erode them. In doing so, the Court allows for the further decay of Equal Protection and mutual toleration — an indispensable guardrail for what remains of our democratic institutions.

Looking forward

While the majority emphasizes that the holding of Mahmoud v. Taylor applies specifically to the context of storytime with “impressionable children,” that is plainly untrue. The Court’s willingness to take up cases like Mahmoud, Skrmetti, and Chiles v. Salazar within a single year reveals a willingness to entertain experiments in democratic backsliding. More importantly, LGBTQAI+ families in and outside of public schools will continue to feel the impact of the constitutional rot of Equal Protection and mutual toleration for generations to come. In coming months, the Court will rule on whether to expand the Free Exercise Clause to therapy sessions. If it decides that it does, mental health counselors may hold a constitutional right to suggest conversion therapy to an LGBTQAI+ fourth grader in the same school where parents hold a constitutional right to facilitate a mass exodus when LGBTQAI+ lives are mentioned in the classroom. And if that is not enough, it is only a matter of time before one of the university complaints seeking relief from the Trump administration’s university funding freezes reaches the Court. Then, five justices will decide whether the government can also restrict college students from learning and celebrating topics too controversial for storytime in K-12 schools.

If the conservative fringe has focused on children’s constitutional rights as the site for its political-legal project, defenders of constitutional democracy must do the same.

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Jeremiah Chin: Silencing Children’s Rights (Repost from Verfassungsblog) – United States

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Jeremiah Chin: Silencing Children’s Rights (Repost from Verfassungsblog) – United States

The U.S. Supreme Court decided Mahmoud v. Taylor on June 27, 2025. In doing so, it dramatically expanded parental rights over students and education without concern for the rights of children or consideration of pedagogy and curriculum. While the current era of the Supreme Court under Chief Justice John Roberts has repeatedly blurred lines dividing religious groups and state power under the First Amendment, Mahmoud rewrites the First Amendment for children entirely. The Court concluded that the government burdens the religious exercise of parents by failing to provide mandatory notice and opt-out policies when school materials include Lesbian, Gay, Bisexual, or Transgender (LGBTQ+) topics. Instead of addressing the plurality of views around sexual orientation and gender, the Court indirectly, but unsubtly, installs a traditional values framework that imposes norms of heterosexuality, religious fundamentalism and parental micromanagement of curriculum. This simultaneously threatens the expression, learning, and community built in schools for everyone.

The stories of Mahmoud v. Taylor

Decided on June 27, 2025, Mahmoud v. Taylor represents a struggle between religious parents and secular public education over curriculum in Montgomery County Public Schools (MCPS) in Maryland. Maryland incorporated several suggested texts for instructors that would include LGBTQ+ characters to better reflect the diverse community of students and parents within the district. Several parents objected on religious grounds, requesting the school provide notice and offer an opt-out option when such materials are used in the classroom. At first, MCPS was willing to provide the option to parents but found the measures administratively unfeasible and potentially stigmatizing to students, concluding that no notice or opt-out was required because parents had access to book lists prior to every school year.

The different justices’ retellings of the case reveal their radically different framings of the facts. In the majority opinion of the Court, Justice Samuel Alito describes the origins of the conflict as rooting “in the years leading up to 2022”, when the MCPS “apparently ‘determined that the books used in its existing English and Language Arts curriculum were not representative of many students and families in Montgomery County’” because they did not include LGBTQ characters. According to Alito, this prompted the school district to include five storybooks for children between 5 and 11 years old. The pointed use of “apparently” and the lack of context make the MCPS decision appear abrupt and arbitrary rather than a good-faith effort by the school district to provide a more robust curriculum.

Justice Sotomayor’s dissent, in turn, reveals that the Court’s framing obfuscates a long effort by MCPS in reconciling the fact that “certain perspectives…were absent from its English language curriculum,” and only the latest in a broad effort to promote a “fully inclusive environment for all students’ by using instructional materials that reflect [the] diversity of the global community, including persons with disabilities, persons from diverse racial, ethnic, and cultural backgrounds, as well as persons of diverse gender identity, gender expression, or sexual orientation.” Justice Sotomayor’s telling of the facts focuses on the MCPS Board, subject matter experts, and teachers building a diverse and inclusive curriculum. Justice Alito’s framing in turn assumes the position of the plaintiffs, a religiously diverse coalition of parents whose sincerely held religious beliefs’ most apparent common thread is anti-LGBTQ bias.

Though Justice Alito is rhetorically deeply concerned with impressionable “young children, like those of [the plaintiff parents],” he spends little time talking about the rights, experiences, or issues faced by children in the classroom. Instead, he accuses the dissent of trying to “divert attention from…children subject to the instruction” by emphasizing the texts, characters, and importance of the curriculum. According to Justice Alito, the dissent takes on a “deliberately blinkered view” and is “air-brushing the record” by arguing that the inclusion of books with LGBTQ characters is “just about exposure and kindness.” Justice Alito’s framing of the issues for the majority views the books as “impos[ing] upon children a set of values and beliefs that are ‘hostile’ to their parents’ religious beliefs.” In this light, the mere inclusion and existence of these five books with LGBTQ characters and themes and instructional guidance for teachers presents an existential threat to religion. These books only make up a small percentage of the curriculum – with guidance for classroom discussion that affirms that Lesbian, Gay, Bisexual, Transgender, and other people exist and have rights to exist.

The hyperbolic disaster-framing by Justice Alito, therefore, concludes that because “the storybooks unmistakably convey a particular viewpoint about same-sex marriage and gender” and instructional materials “specifically encouraged teachers to reinforce this viewpoint” and discuss disagreements with students, the policy of inclusion, therefore, burdens the parents’ right to the free exercise of religion and is subject to strict scrutiny, which means that a government must demonstrate that its policy advances compelling government interests and is narrowly tailored to achieve those ends. The failure to permit an opt-out when including these LGBTQ storybooks thus unconstitutionally burdens the parents’ rights of control over their children. The Court disclaims that the Board’s proposed curriculum has any educational value. It simply states that it places an unconstitutional burden on the parent’s religious exercise if it is imposed without the chance for opt-outs. In doing so, it sidesteps any good-faith balancing of interests. Worse: It fails to recognize that including and discussing books from different perspectives in a school curriculum has value in an educational environment.

Faith, parents, and the first amendment

The Court’s broad reading of the parental rights to control the upbringing of their children paradoxically narrows the understanding of the First Amendment to be strictly a relationship between parents and the government. Fundamentally, the First Amendment to the United States Constitution is a restriction on the power of the state. It proclaims that Congress shall make no law “respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of people to peaceably assemble, and to petition the Government for a redress of grievances.” Later applied to State governments and municipalities, the amendment’s broad language reflects the importance the authors placed on resistance to state suppression of religious, expressive, and associational freedoms.

Theoretically, this freedom to believe, express, and associate should also apply broadly to a variety of perspectives. No single religion or type of speech is singled out, and the only subject of restriction is the state. That is, First Amendment rights should impose restrictions on the state, not compulsion for individuals to act, talk, believe, or associate in specific ways. But despite its expansive declaration of freedom that would prohibit governmental interference with expression or religion, the First Amendment has often faced limiting principles to facilitate the practical governance of a diverse, pluralistic society.

In Employment Division, Department of Human Resources of Oregon v. Smith (1990), the Court recognized that “neutral laws of general applicability” could be constitutionally imposed on religious conduct and beliefs. The decision prohibited members of the Native American Church from receiving unemployment benefits. The plaintiffs were Indigenous persons who practiced their faith by taking peyote as part of a traditional ceremony. Justice Scalia claimed that the policy in question, prohibiting persons taking drugs from receiving unemployment benefits, did not unconstitutionally burden the plaintiffs’ religious practice. The reason was that this practice was “unconnected” to other valid constitutional rights and to “any communicative activity, or parental right.” Neutral laws of general applicability are therefore presumed valid unless they compel expression or interfere with other constitutional rights, in which case they are subjected to closer scrutiny.

Even when neutrally worded and generally applicable, state laws that compel expression and conduct can be unconstitutional. In West Virginia State Board of Education v. Barnette (1943), for example, the Court struck down a state law requiring compulsory flag salutes and recitation of the Pledge of Allegiance – practices that violated the beliefs of a Jehovah’s Witness student whose faith prohibits pledging allegiance to symbols like the flag. State laws that compel school attendance, on the other hand, are generally constitutional. Exceptions to this are state laws that restrict parents’ rights to choose private religious schools over public schools (Pierce v. Society of Sisters, 1925) and laws compelling school attendance that directly contradict religious beliefs (Wisconsin v. Yoder, 1971).

Critically, none of these cases, which articulate the free exercise of religion and parental rights, give parents total control over their children. Both Barnette and Pierce emphasize the importance of public education in preparing children to participate in society and sustain democratic governance. The answer in these cases was not to isolate children but to ensure the curriculum was inclusive of their religious practices. In Barnette, for example, the Court did not bar schools from including the pledge in their curriculum – it simply held that students could not be compelled to recite it.

In Justice Alito’s account in Mahmoud, students are exposed to a curriculum and instructions acknowledging the existence and rights of LGBTQ individuals – an exposure he suggests amounts to a violation of religious tenets. Yet even on his own terms, the burden on parents lies in the mere exposure to viewpoints that may conflict with their beliefs, not in any form of compelled activity. No assignment requires students to affirm a particular viewpoint, and the schools do not evaluate students based on what they say, think, or believe. The stories are readily available and read to the class, accompanied by instructions for teachers on how to engage with students in a way that validates both the story and the student.

Viewpoint discrimination

The Court has often found that the answer to disfavored speech, or expression that might be contrary to the views of others, is still protected speech. As Justice Alito explained in Matal v. Tam: “giving offense is a viewpoint.” Freedom of speech and free exercise of religion under the constitution, therefore, must include even those ideas that some might find offensive, with limited exceptions for speech that imminently incites lawless activity (Brandenburg v. Ohio, 1969) or obscenity (though the Court struggles to find a solid definition of the concept). The requirement of neutral laws of general applicability guards against so-called content- or viewpoint-based regulations of speech.

Mahmoud v. Taylor launders viewpoint discrimination through parental rights, allowing the regulation of classroom content through parental opt-outs while completely ignoring the students as learners, participants, or even people with rights. In Tinker v. Des Moines Independent Community School District (1969), the Court built upon cases like Barnette and Pierce, highlighting the importance of children’s speech within schools and validating that students hold First Amendment rights in schools. It found the suspension of young persons for wearing black armbands to protest the Vietnam War unconstitutional. Justice Abe Fortas explained for the majority that “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.”

Justice Alito in Mahmoud extends this to parents. As he notes, the parent’s “right to free exercise, like other First Amendment rights, is not ‘shed . . . at the schoolhouse gate.’” This paraphrase of Tinker excludes the fact that students and teachers possess the same rights of free exercise, expression, and association in schools as well in not-so-subtle ways. A constitutionally mandated parental opt-out that the Court provides in Mahmoud defies the reasoning of West Virginia v. Barnette, which Justice Alito relies on as the foundation of his analysis of parental rights. In Barnette, Justice Robert Jackson explained, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Yet Justice Alito’s decision in Mahmoud allows parents to compel teachers and school officials to ensure their prescribed orthodoxy, meaning students no longer may discuss, express, or associate with LGBTQ storybooks as part of the official curriculum.

For those who come after

The Court’s opinion in Mahmoud v. Taylor sacrifices student’s First Amendment rights in the name of parental control. This enables parents to compel the speech and beliefs of students rather than let students develop their own thoughts, views, and beliefs – free to conform or disagree with the beliefs of their parents and classmates. This type of compelled speech would otherwise be prohibited. Mahmoud allows parents to compel the state to engage in viewpoint discrimination – something neither the parents nor the state could achieve alone, whether as a matter of constitutional law or practical enforcement.

Mahmoud decides on a vision of the future that is very much rooted in the past, severely restricting students from engaging with views that they may or may not share. Elsewhere, I have discussed how the history and traditional uses of originalism by the current Supreme Court bind us to narrow historical reasoning rather than an expansive historical understanding of the future – proposing Constitutional Futurism as a remedy to the originalism that has overturned reproductive rights, gun control, and now even children’s right to inclusive education and expression in Mahmoud v. Taylor. Justice Alito’s majority opinion endorses robust parental control over students, teachers and schools, when those parents already have curriculum oversight through ordinary democratic processes. The Court fails to recognize students – and children generally – as persons with rights, thoughts, and opinions that also deserve consideration. Rather than relying on tradition and compulsion, instruction can provide students with a way of questioning that can interrogate or even affirm their beliefs. This failure to recognize the personhood of children misses the expansive potential of future generations, all in the name of history and tradition.

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