As the Supreme Court completes its term, I’m pleased to report a landmark victory for the First Amendment and for religious parents who send their children to public schools.
Recognizing the importance of Mahmoud v. Taylor, the Foundation for Moral Law filed an amicus brief supporting parents whose religious beliefs forbade exposing their children to LGBTQ indoctrination in the Montgomery County, Md., public schools.
Initially, the school district agreed to notify parents when such instruction would occur, allowing them to remove their children from those sessions. The district later reversed itself, refusing to notify parents or excuse children, citing the numerous objections (shouldn’t that be a clue?) that notification and excusal would disrupt their schedule.
The parents brought suit and lost in the district court and in the Fourth Circuit. But the Supreme Court reversed in a 6-3 ruling. Justice Alito’s majority opinion noted that the schools allowed others to opt out for other reasons, so the school could refuse to allow Christian and Muslim parents to opt out only by showing a compelling interest that cannot be achieved by less restrictive means.
The District argued that they have a compelling interest because if children do not receive LGBTQ instruction (read: indoctrination), they will not grow up to be good citizens. But Justice Thomas’s concurring opinion deftly noted that public school sex education is a recent development, and there is no reason to believe children who grew up without sex education before the late 1900s were somehow unable to be good citizens as a result. He further said that the District’s policy is an attempt to standardize all children with one set of beliefs and attitudes, a blatantly unconstitutional violation of parental rights.
Here are three important takeaways from the Mahmoud decision:
- Although the District argued that teaching viewpoints and attitudes contrary to parents’ beliefs does not violate parents’ free exercise of religion, the Court squarely disposed of that contention. These parents clearly demonstrated that they believe God created people male and female, that these sexual identities are fixed, that sex is to be confined to marriage, that marriage is solely between one man and one woman, and that God forbids promiscuity, homosexuality and transgenderism. The free exercise of religion guaranteed by the First Amendment includes the right to train one’s children in one’s beliefs. The Court discussed the schools’ texts and classroom presentations at length, concluding that these were designed to promote a view of human sexuality very much at odds with the parents’ beliefs. When these texts are presented to children by teachers whom they regard as authority figures, this constitutes a substantial infringement of the parents’ religious beliefs.The Court was not impressed with the District’s suggestion that parents could counter this instruction by teaching their children at home in the evenings. Parents should not have to compete with the schools for the souls of their children. Nor was the Court impressed with the comment of one school board member that parents who don’t like this kind of instruction should send their children to a private religious school. The Board’s policy forces parents to either 1) give up a substantial state benefit (free public education), or 2) compromise their religious beliefs. This kind of “Hobson’s choice” violates the free exercise clause of the First Amendment.
- The Free Exercise Clause applies within the public school setting. Earlier decisions protected the right of parents to keep their children out of public schools. Meyer v. Nebraska (1923) protected the right of parents to send their children to a private school to receive instruction in German. Pierce v. Society of Sisters (1925) held that the State of Oregon could not force all parents to send their children to public schools because, “The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” Farrington v. Tokushige (1927) held that the state may not regulate private schools in a manner that forces them to be substantially the same as public schools. And Wisconsin v. Yoder (1972) held that the Amish must be allowed to educate their children outside the normal school setting.
- But the rights of parents who send their children to public schools were less clear. Parents are free to keep their children out of public schools, some argued, but if parents put their children in public schools, they are subject to public school rules and policies, their religious objections notwithstanding. Not so, said the Court. In 1969, the Court held in Tinker v. Des Moines Independent Community School District that students were entitled to wear black armbands to protest the Vietnam War because neither “students [n]or teachers shed their constitutional rights to freedom of speech and expression at the schoolhouse gate.” The same applies to free exercise of religion.The Mahmoud decision is possibly the most significant parental rights decision since Yoder. The free exercise rights of parents are protected, not only in regard to private education, but within the sphere of public education as well.
- The dissent argued that the Yoder decision was limited to the Amish or other similarly situated groups. But the majority opinion succinctly rejected that interpretation, saying: “We have never confined Yoder to its facts. To the contrary, we have treated it like any other precedent. We have at times relied on it as a statement of general principles.” Yoder’s protection is not limited to the Amish. The First Amendment protects all of us.
Armed with this assurance, parents who send their children to public schools should press on, confident that they and their children do not shed their free exercise rights at the schoolhouse gate. And the Foundation for Moral Law stands ready to help!
Colonel Eidsmoe serves as Professor of Constitutional Law for the Oak Brook College of Law & Government Policy (obcl.edu), as Senior Counsel for the Foundation for Moral Law (morallaw.org), and as Pastor of Woodland Presbyterian Church of Notasulga, AL (woodlandpca.org). He may be contacted for speaking engagements at [email protected].
Colonel Eidsmoe serves as Professor of Constitutional Law for the Oak Brook College of Law & Government Policy (obcl.edu), as Senior Counsel for the Foundation for Moral Law (morallaw.org), and as Pastor of Woodland Presbyterian Church of Notasulga, AL (woodlandpca.org). He may be contacted for speaking engagements at [email protected].
The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to [email protected].
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