Compelled to Conform? Mahmoud v. Taylor and the Right to Opt Out
Photo Credit: Pablo Martinez Monsivais
Pride Puppy—a story about a family and their puppy attending a Pride parade. My Uncle’s Wedding—a tale of a young girl preparing for and attending her uncle’s same-sex wedding. Julian Is a Mermaid—a narrative about a boy who dreams of becoming a mermaid and expressing his gender in an untraditional way.
These are not just children’s books. To some parents, they are sacrilegious indoctrination—a direct affront to deeply held religious convictions. To others, they are vital tools for teaching empathy, diversity, and inclusion.
Now, they are at the center of Mahmoud v. Taylor, a case before the Supreme Court this term that cuts to the heart of the First Amendment’s Free Exercise Clause. The question presented: Can a public school require all students to participate in English curriculum materials that conflict with their family’s religious beliefs, with no opportunity to opt out?
Framed by political commentators as a clash between LGBTQ+ inclusion and conservative-religious resistance, the case, in reality, demands a narrower, doctrinal inquiry. The Court must determine whether there is a “substantial burden” on the plaintiffs’ religious exercise. It is a threshold that must be met before any legal standard—from the neutrality and general applicability principle in Employment Division v. Smith to strict scrutiny under Church of the Lukumi Babalu Aye v. City of Hialeah—even comes into play.
The petitioners, a coalition of Muslim, Catholic, and Eastern Orthodox parents from Montgomery County, Maryland, argue that the denial of opt-outs for LGBTQ+-themed story books like Pride Puppy and My Uncle’s Wedding prevents them from raising their children in accordance with their religious convictions. “The Board’s own documents reveal that its goal in compelling children to participate in this instruction is to ‘disrupt’ their ‘either/or thinking’ on gender and sexuality,” the petitioners argue, “and the Board concedes that children may ‘come away from [such] instruction with a new perspective not easily contravened by their parents.’”
In 2022, Montgomery County Public Schools added several LGBTQ+-inclusive storybooks to their elementary English curriculum. The following year, the district reversed its prior practice and barred parents from opting their children out. As Justice Alito pointedly noted during oral argument held on April 22, the school’s refusal meant that even if a teacher told students that those who believe same-sex marriage is immoral are “not good people,” the parents would still have no recourse under the current policy. Counsel for the school board conceded that such a statement would constitute coercion only if it became overtly derogatory. “That’s not good enough,” Alito replied. Indeed, within weeks of the board’s policy reversal, hundreds of parents of mostly Muslim and Ethiopian Orthodox faith attended school board meetings to express concern that their First Amendment rights were being violated, to which board members responded by comparing them to “white supremacists” and “xenophobes.”
Justice Amy Coney Barrett and other members of the Court’s conservative bloc drilled into the distinction between “exposure” and “endorsement” during oral argument. Barrett suggested that presenting LGBTQ+ themes as “this is the right view of the world”—rather than “some people think this”—could constitute more than mere exposure. Chief Justice Roberts added, “Even if students are told they don’t have to agree with the content, that may not be a realistic concept for a five-year-old.”
In contrast, the Fourth Circuit below denied the parents’ request for a preliminary injunction—a form of temporary relief that seeks to maintain the status quo while litigation plays out only when the plaintiff shows a likelihood of success on the merits and a demonstration of irrevocable harm. The 2–1 divided panel reasoned that the parents had not shown that exposure to the books compelled them to act contrary to their religious faith. As the board frames it, “Mere exposure in public school to ideas that contradict religious beliefs does not burden parents’ religious exercise.”
But that logic, the petitioners argue, misunderstands how religious formation works in young children. “No one disputes that gender and sexuality are topics of enormous religious importance, that children are uniquely impressionable and vulnerable on such matters,” they wrote. “[H]istory and tradition compel the conclusion that forced instruction on such religiously sensitive matters would ‘substantially interfere’ with children’s religious formation and their parents’ own religious exercise of guiding that development.”
The parallels to Wisconsin v. Yoder are instructive. There, the Court carved out an exemption from compulsory education laws for Amish families, recognizing their right to direct the religious upbringing of their children. In Mahmoud, the petitioners are not seeking to remove the books wholesale or to undermine the public education of their children’s peers, but merely to carve out a narrow space for their children to be excused.
Another troubling aspect of the lower court’s adverse ruling was its finding that there was not a threat of irrevocable harm at this preliminary stage. In legal terms, “irreparable harm” refers to harm that cannot be undone or remedied later—think, for example, of a death penalty case where the plaintiff is executed before a review of his sentence is complete, mooting the very issue under challenge. Here, the harm is just as irreversible: If the policy remains in place for the foreseeable future and the children are forced to go through the curriculum before the case is resolved, then the precise injury that prompted the litigation—the forced exposure to materials their parents believe violate their religious teachings—has already occurred. The harm, once inflicted, cannot be undone. For the families before the Court, the case becomes moot in all but name.
Now assuming a burden exists, the board is asking the Court to hold the no-opt-out policy as an incidental burden on the plaintiffs’ religious practice. The district claims the policy is neutral and generally applicable under Smith, but that argument falters under scrutiny. The same district allows opt-outs for health class, Halloween celebrations, and birthday activities. “If public schools have offered such instruction at all—a recent trend—they have almost uniformly notified parents and allowed them to opt their children out,” the petitioners noted. The policy thus “permits exceptions for secular reasons while denying them for religious ones,” an impermissible system under Smith and its progeny.
Under Lukumi, that sort of discrepancy triggers strict scrutiny. At that point, the burden shifts to the school district to show that denying opt-outs is the least restrictive means of achieving a compelling interest. But administrative inconvenience or speculative fears of disruption will not suffice under this standard of review. As Justice Brett Kavanaugh remarked during oral argument, “every other school board has opt-outs for all sorts of things”—including Montgomery County itself.
Justice Neil Gorsuch was especially skeptical of the school board’s insistence that regulating opt-outs would be administratively unworkable because the challenged materials were too diffused throughout the English curriculum—that is, not grouped together during a set weeklong module. During oral argument, he cut through that logic with characteristic bluntness: “It’s not the math class…It’s not the human sexuality class. It’s the English class.” When the board’s counsel tried to suggest that in second grade, “the division between English class and other things…doesn’t really exist,” Gorsuch responded dryly, “I went to second grade too”—to the audience’s laughter. His point was unmistakable: The board has no trouble identifying and severing curriculum components when it comes to opt-outs for sex education, so why should LGBTQ-themed reading assignments be uniquely non-excusable?
The district appears keenly aware that surviving strict scrutiny is an uphill battle, as the burden falls on the state to meet both prongs. It thus focuses its efforts toward avoiding the standard altogether. After all, identifying a compelling government interest is not merely a matter of citing admirable goals. Laudable—no doubt—are the aims of inclusion, empathy, and civility. But goals, however commendable, do not alone ascend to the level of a compelling state interest. That bar may be prohibitively high. The government must show that its interest is not just important, but urgent and absolutely necessary.
Even if that hurdle were cleared, the district would then have to show that its current policy is narrowly tailored to that interest, which it is not. There are less restrictive means of achieving the same pedagogical objectives. A broad range of alternative texts are available that foster respect and empathy without triggering sincere religious objections. Given the abundance of literature and curricular flexibility, the state cannot plausibly argue that no other approach would suffice, especially when it has not even attempted less restrictive alternatives as the Court’s strict scrutiny precedent requires.
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This is not about erasing identities or banning books. It is about affirming that the First Amendment protects not just belief, but the right to live in accordance with it. That includes a parent’s right to shield their child from instruction that deeply conflicts with their faith. To be clear, this is not a defense of the plaintiffs’ theology. It is a defense of a constitutional principle: that the First Amendment protects unpopular beliefs not because they are wise or benevolent, but because the government has no authority to pick which doctrines may be lived out and which must be suppressed.
Mahmoud v. Taylor presents a rare opportunity for the Court to reaffirm that principle. That the Court should—and likely will—reach that conclusion follows both from its Free Exercise jurisprudence over the past decade and from the tenor of the Justices’ questioning at oral argument. A pluralistic society must accommodate difference, not flatten it in the name of administrative efficiency—even if a majority in a society view those differing beliefs as reprehensible. The Constitution demands no less.