Kavanaugh Lights Up Lefty Lawyer In Case On LGBTQ Books In Schools
The U.S. Supreme Court on Tuesday seemed inclined to side with a group of Maryland parents who raised religious objections to a school district’s inclusion of books featuring gay and transgender characters in elementary classrooms.
Justice Brett Kavanaugh, who has long resided in Montgomery County, Maryland, expressed that he was “surprised” during oral arguments in the case, which centers around the presence of LGBTQ+ books in the local school curriculum.
The case—Mahmoud v. Taylor—was initially heard in May 2023 by the U.S. District Court of Maryland. It stemmed from concerns voiced by Christian, Jewish, and Muslim parents who argued that Montgomery County Public Schools (MCPS) had infringed on their First Amendment rights. Their claim: the district eliminated a previous policy allowing them to “opt-out” their young children from reading certain LGBTQ+ storybooks, which they believed contradicted their religious beliefs.
In fall 2022, MCPS introduced over 20 new “inclusivity” titles as part of a “Pride Storybooks” initiative, targeting students from pre-K through eighth grade. Initially, the district assured parents they would be informed whenever these books were being taught, thereby giving them the opportunity to decline participation for their children.
But by 2023, parents say the school board stopped honoring those notifications and denied opt-out requests altogether. The district, which serves more than 70,000 students, cited logistical complications in continuing the policy.
The parents lost their case in district court. An appeal to the Fourth Circuit Court followed, but the appellate court upheld the school board’s decision.
Seeking further review, the parents turned to the U.S. Supreme Court with the support of Becket, a nonprofit organization known for defending religious freedoms. The Court agreed to hear the case in January 2024, and arguments were heard in September.
A key moment during the hearing featured Justice Kavanaugh pressing the issue of opt-out policies:
Kavanaugh: “The country has opt-outs for all sorts of things. The county has opt-outs for all sorts of things. The other Maryland counties have opt-outs for all sorts of things. And yet, for this one thing, they change in mid-year and say no more opt-outs. I’m just not understanding feasibility.”
Responding to Kavanaugh’s skepticism, counsel for the school board, Schoenfeld, pointed to practical difficulties:
SCHOENFELD: “So, again, I think what’s in the record is that, with respect to these books as they were deployed in the classroom, there was high absenteeism in some schools. For example, dozens of students being opted out in, I think Mr. Baxter said the average size of an elementary school in Montgomery County is 700 students, so each grade is 125. If you have dozens of students walking out, making arrangements for their students to have adequate space and supervision and alternative instruction, I think is infeasible. And that’s —”
But Kavanaugh pushed back:
Kavanaugh: “But they do it for all sorts of other opt-outs.”
To which Schoenfeld replied:
SCHOENFELD: “They don’t do it for all sorts of other opt-outs. There’s a limited universe of things that students can opt out from. The family life and healthy sexuality curriculum stands alone. It is mandated by the state. It is something where you are able to predict precisely when the curriculum is going to be deployed. There’s a four —”
Kavanaugh wasn’t satisfied with the explanation:
Kavanaugh: “It’s the most similar, substantively, to what we have here and there’s an opt out allowed there. I guess I’m not understanding why Montgomery County School Board stands alone, I think in the country. You can tell me if there’s another school board that’s done something like this.”
SCHOENFELD: “I don’t — I apologize.”
Justice Kavanaugh emphasized the broader issue of religious accommodation:
Kavanaugh: “The kind of books that are being used and prohibiting opt-outs, and I guess I’m just not understanding. The whole goal, I think, of some of our religion precedents is to look for the win-win, to look for the situation where you can respect the religious beliefs and accommodate the religious beliefs while the state or city, or whatever it may be, can pursue its goals. And here they’re not asking you to change what’s taught in the classroom. They’re not asking you to change that at all. A lot of the rhetoric suggests that they might have — that they were trying to do that, but that’s not what they’re trying to do. They’re only seeking to be able to walk out so that they don’t have — so the parents don’t have their children exposed to these things that are contrary to their own beliefs.”
SCHOENFELD: “I understand, your Honor, and there may well be circumstances where a school can —”