On January 17th, 2025 the Supreme Court granted cert on the second case it will hear during its 2024-2025 term dealing with religious liberty issues — Mahmoud v. Taylor.[1]
The question presented before the court is whether “public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and with-out notice or opportunity to opt out?”[2] It is significant to note here that the what the Court will be evaluating is not if the mere existence of the curriculum in public schools violates the constitution’s protections for religious exercise, but rather whether the presence of this curriculum without a corresponding option for parents to exclude their children from this instruction violates those constitutional protections.
In the case below, the Fourth Circuit Court of appeals held in a 2-1 decision that the parents of children in Montgomery County Public Schools in Maryland were not entitled to a preliminary injunction against the school district for the lack of notice and opportunity to opt out of certain education curriculum related to gender and sexuality.[3] The parents in question objected to the inclusion of certain “LGBTQ-Inclusive Books” that were approved by the Montgomery County Board of Education in October 2022 for use in the public-school district’s English Language Arts Curriculum.[4] The school district also had created a plan to rollout the books into schools, and had prepared a set of materials that were designed to provide assist teachers in answering questions from children and parents. This guidance also demonstrated to teachers how communicate to children regarding the content of the books, including the ability to make such comments as “When we’re born, people make a guess about our gender and label us ‘boy’ or ‘girl’ based on our body parts. Sometimes they’re right and sometimes they’re wrong…. Our body parts do not decide our gender. Our gender comes from our inside.”[5] While the opportunity to opt-out children from this instruction for religious reasons existed during the first year of the curriculum’s rollout, this exemption was later removed by the district.[6]
The crux of the plaintiff’s free exercise complaint against the school district was that the presence of the books in English language classes, and the associated guidance for teachers, improperly burdened the parent’s right to instruct their children in matters of sexuality and family life in accordance with their religious faith.[7] The plaintiffs sought a preliminary injunction against the school board requesting that the notice and opt-out opportunities be restored to parents.[8] The Fourth Circuit, however, agreed with the district court that on the limited factual record of the case that the plaintiffs had not demonstrated a “cognizable burden to support their free exercise claim” as was required for a successful free exercise claim.[9] The Fourth Circuit therefore affirmed the lower court’s denial of preliminary injunction because the plaintiff’s had not shown a likelihood of success on the merits.[10]
In coming to this conclusion, the Fourth Circuit reasoned that the exposure to the curriculum did not create “direct or indirect pressure” on the parents or their children “to abandon religious beliefs or affirmatively act contrary to those beliefs. And simply hearing about other views does not necessarily exert pressure to believe or act differently than one’s religious faith requires . . . in the absence of such coercive effect, a government action does not burden religious exercise.”[11] The mere existence of the curriculum was not sufficiently coercive in the court’s view; without any evidence about how the curriculum was being coercively applied, the preliminary injunction could not succeed.[12]
Justice Quattlebum Jr., writing in dissent, argued instead that the guidance provided by the district to the teacher’s showed that “schools will advocate for the themes and values in the texts and against any opposition to them.”[13] This advocacy forced a choice upon parents whose religious ideals conflicted with this messaging, “they must either forego a public education or violate their deeply held religious beliefs.”[14] For Justice Quattlebum Jr., no further development of the factual record was required to show a burden on religious exercise as the choice presented to parents by the school district (between violating one’s religious beliefs to obtain a generally available public benefit and foregoing that benefit) had already been determined by the Supreme Court to constitute a burden on religious exercise.[15]
The attorneys at Dalton & Tomich, PLC will be paying close attention to how this case and others like it will affect the First Amendment legal landscape in 2025.
[1] The other case is Cath. Charities Bureau, Inc. v. Lab. & Indus. Rev. Comm’n, 2024 WI 13, 411 Wis. 2d 1, 3 N.W.3d 666, cert. granted sub nom. Cath. Charities Bureau, Inc. v. WI Lab. Rev. Comm’n, No. 24-154, 2024 WL 5100663 (U.S. Dec. 13, 2024).
[2] No. 24-297, Supreme Court of the United States (last visited January 25th, 2025), https://www.supremecourt.gov/Search.aspx?FileName=/docket/docketfiles/html/public%5C24-297.html.
[3] Mahmoud v. McKnight, 102 F.4th 191, 197 (4th Cir. 2024), cert. granted sub nom. Mahmoud v. Taylor, No. 24-297, 2025 WL 226842 (U.S. Jan. 17, 2025).
[4] Id.
[5] Id at. 199
[6] Id. at 200.
[7] Id. at 202
[8] Id. at 201.
[9] Id. at 209.
[10] Id.
[11] Id. at 210.
[12] Id. at 210-213
[13] Mahmoud v. McKnight, 102 F.4th 191, 222 (4th Cir. 2024) (Quattlebum Jr., J., dissenting).
[14] Id.
[15] Id.; see also, Sherbert v. Verner, 374 U.S. 398, 404 (1963).
