Concurrence
SUPREME COURT OF THE UNITED STATES
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No. 24–297
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Tamer Mahmoud, et al., PETITIONERS v. Thomas W. Taylor, et al.
on writ of certiorari to the united states court of appeals for the fourth circuit
[June 27, 2025]
Justice Thomas, concurring.
The Board of Education of Montgomery County (Board) adopted a series of controversial “LGBTQ+-inclusive” storybooks for use in its prekindergarten through fifth-grade English Language Arts (ELA) curriculum. Hundreds of parents raised religious objections and sought to use the Board’s then-existing opt-out policy to exclude their children from lessons involving these books. The Board responded by removing the opt-out option, and even refused to provide parents with notice of when schools would use the materials. Parents sued, arguing that the Board’s new no-opt-out policy violates their First Amendment rights. The Court correctly holds that the policy contravenes the parents’ free exercise right to direct the religious upbringing of their children, see ante, at 17, and I join its opinion in full. I write separately to highlight additional reasons why the Board’s policy cannot survive constitutional scrutiny, as well as to emphasize an important implication of this decision for schools across the country.
I
As the Court today holds, the Board’s policy is incompatible with this Court’s decision in Wisconsin v. Yoder, 406 U. S. 205 (1972). Ante, at 17–27. Yoder addressed whether a Wisconsin law requiring children to attend school past the eighth grade violated the free exercise rights of Amish parents who objected on the ground that the law interfered with their ability to direct their children’s religious upbringing. 406 U. S., at 207–209. In holding that the law violated the parents’ First Amendment rights, the Court made clear that only “interests of the highest order” that are “not otherwise served can overbalance legitimate claims to the free exercise of religion.” Id., at 215.
The Court understood history and tradition to inform the inquiry whether Wisconsin had established “interests of the highest order,” and it explicitly examined the historical pedigree of the State’s alleged interest in education past the eighth grade. The Court explained that one key reason why Wisconsin’s interests could not justify its law as applied to the Amish was that “compulsory education beyond the eighth grade [was] a relatively recent development” that emerged “[l]ess than 60 years ago,” yet the Amish had a track record of “successful social functioning . . . approaching almost three centuries.” Id., at 226–227. In a similar vein, the Court observed that the Amish were not “a group claiming to have recently discovered some ‘progressive’ or more enlightened process for rearing children,” but instead had a centuries-long history “as an identifiable religious sect and a long history as a successful and self-sufficient segment of American society.” Id., at 235. Thus, for the Amish, education past the eighth grade was demonstrably inessential to “meeting the duties of citizenship.” Id., at 227.
That analysis is instructive here. As with compulsory education past the eighth grade at the time the Court decided Yoder, sex education is also a “relatively recent development”—and the practice of teaching sexuality- and gender-related lessons to young children even more so. And, as in Yoder, there is little to suggest that these lessons are critical to the students’ civic development.
What is now labeled “sex education” is a 20th-century innovation. Early in the Nation’s history, “schooling seldom extended beyond the elementary subjects.” M. Katz, A History of Compulsory Education Laws 14 (1976). It was not until the 1970s that public schools began implementing what we might today recognize as sex education, with lessons focused on cautioning students about how to avoid “unintended pregnancy and sexually transmitted diseases.” K. Rufo, Note, Public Policy vs. Parent Policy: States Battle Over Whether Public Schools Can Provide Condoms to Minors Without Parental Consent, 13 N. Y. L. S. J. Hum. Rights 589, 591–592, and n. 15 (1997). Sex education has shifted in recent decades toward the even more controversial “[c]omprehensive [a]pproach,” though the curriculum generally still “begin[s] with ‘basic facts’ ” and emphasizes “contraceptive use” to avoid pregnancy and disease. Id., at 592–593; see Brief for Petitioners 32.
The practice of teaching sexuality and gender identity to very young children at school appears to be significantly more recent than typical sex education. Although the plaintiffs placed the storybook curriculum’s recency and lack of historical pedigree in issue, see id., at 47, the Board failed to identify any tradition of teaching sexuality and gender identity to young children—much less a tradition of preventing parents from opting their children out of such instruction. The Board’s “LGBTQ+-inclusive” storybook curriculum appears to be as novel as the storybooks themselves, all of which were published within the last decade.1 See App. to Pet. for Cert. 603a (storybook curriculum was adopted because “[i]n recent years” ELA curriculum had not been sufficiently representative of Montgomery County community).
The storybook curriculum is also different in kind from traditional sex education. See Brief for Respondents 1–2 (“[T]he storybooks are not sex-education materials”). Instead of incorporating materials focused on health and reproduction, for example, the Board chose the storybooks based on factors such as whether they “reinforced or disrupted” “heteronormativity,” “cisnormativity,” and “power hierarchies that uphold the dominant culture.” App. to Pet. for Cert. 622a; see also ante, at 3–4. The Board further provided teachers with guidance about how to conduct “LGBTQ+-inclusive” instruction, which, among other things, suggested that teachers should “[d]isrupt” their students’ “either/or thinking” about sexuality and gender. App. to Pet. for Cert. 629a, 633a. In the Board’s view, these instructional directives helped advance its objective of “educational equity”—that is, viewing each student’s “[g]ender identity and expression,” “[s]exual orientation,” and other specified “individual characteristics as valuable.” Code of Md. Regs., tit. 13a, §§01.06.01(B), 01.06.03(B) (2025).2
Yoder’s historical analysis applies with full force in this case. Until very recently, young children have gone without sexual- and gender-identity education in school. Nothing suggests that the countless generations who did not receive such education failed to “mee[t] the duties of citizenship,” 406 U. S., at 227—or that, if they did, their failure was due to a lack of exposure to sexual- and gender-identity instruction during early adolescence. Further, as in Yoder, the parents seeking to protect their children’s religious upbringings do not belong to a group pushing some “recently discovered . . . ‘progressive’ or more enlightened process for rearing children for modern life.” Id., at 235. They are devout Christians and Muslims. See ante, at 11–13. Given the novelty of its “LGBTQ+-inclusive” curriculum and no-opt-out policy, if any party is pressing a progressive child-rearing process in this litigation, clearly it is the Board. Such an unprecedented curriculum cannot “overbalance” the parents’ “legitimate claims to the free exercise of religion.” 406 U. S., at 215.3
II
Perhaps recognizing that its ban on parental opt-outs lacks historical support, the Board seeks to defend its policy by claiming that it promotes “equity” and “inclusi[on]” and diminishes classroom disruption. Decl. of N. Hazel in Mahmoud v. McKnight, No. 8:23–cv–01380 (D Md.), ECF Doc. 42–1, pp. 2, 6; Brief for Respondents 49. But, these assertions do not amount to “interests of the highest order” sufficient to justify the policy’s interference with parents’ First Amendment rights. Yoder, 406 U. S., at 215. And, much of the alleged potential for classroom disruption stems from choices that the Board itself made.
A
The record in this case suggests that the Board’s “LGBTQ+-inclusive” curriculum and no-opt-out policy rest on the sort of conformity-driven rationales that this Court rejected in Pierce v. Society of Sisters, 268 U. S. 510 (1925).
In Yoder, the Court observed that if a State were “empowered, as parens patriae, to ‘save’ a child” from the supposed “ignorance” of his religious upbringing, then “the State will in large measure influence, if not determine, the religious future of the child.” 406 U. S., at 222, 232. Such an arrangement would upend the “enduring American tradition” of parents occupying the “primary role . . . in the upbringing of their children”—a role that includes the “inculcation of . . . religious beliefs.” Id., at 232–233.
In reaching this conclusion, the Court relied heavily on its earlier decision in Pierce, which articulated “perhaps the most significant statements of the Court in this area.” Yoder, 406 U. S., at 232. The Court held in Pierce that Oregon’s Compulsory Education Act, 1922 Ore. Laws p. 9, §1, as amending §5259, which mandated public schooling for children between 8 and 16 years old and thus forbade them from attending religious schools, “unreasonably interfere[d] with the liberty of parents and guardians to direct the upbringing and education of children under their control.” Pierce, 268 U. S., at 530, 534–535. “The fundamental theory of liberty upon which all governments in this Union repose,” the Court explained, “excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only.” Id., at 535. The Court rejected the premise that the child was merely a “creature of the State”; rather, “those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” Ibid.
While the Court did not decide Pierce on free exercise grounds,4 the context in which Pierce arose confirms that it “stands as a charter of the rights of parents to direct the religious upbringing of their children.” Yoder, 406 U. S., at 233. The case came to the Court during “a time of broad and relentless hostility to the European immigrants whose labor the nation needed but whose religions were seen as alien and un-American.” S. Carter, Parents, Religion and Schools: Reflections on Pierce, 70 Years Later, 27 Seton Hall L. Rev. 1194, 1196 (1997) (Carter). “Roman Catholicism and, to a lesser extent, Judaism, were widely viewed as threats to America, which was self-consciously a Protestant country.” Id., at 1197. Public schooling was perceived as a solution that could “Protestantize the immigrant children” and thus diminish the threats these foreign beliefs posed. Id., at 1199; see also Espinoza v. Montana Dept. of Revenue, 591 U. S. 464, 499–504 (2020) (Alito, J., concurring) (describing popular anti-Catholic sentiment and attempts to “ ‘Americanize’ the incoming Catholic immigrants”). Unsurprisingly, parents who adhered to the disfavored faiths sought alternative educational options. “[B]y the end of the nineteenth century, there were Catholic schools everywhere there were Catholics.” Carter 1200.
The arguments that Oregon pressed in defense of its compulsory-education law make clear that the State sought ideological conformity among its citizens, and viewed immigrants and their religious schools as standing in the way. It would be “both unjust and unreasonable,” Oregon argued, “to prevent [the States] from taking the steps which each may deem necessary and proper for Americanizing its new immigrants and developing them into patriotic and law-abiding citizens.” Pierce, 268 U. S., at 526 (arguments of counsel). Absent such power, there would be no way to “prevent the entire education of a considerable portion of [a State’s] future citizens being controlled and conducted by bolshevists, syndicalists and communists.” Ibid. The State even asserted an interest in “a greater equality” to justify its attempt at state-enforced uniformity. Id., at 527. Though these sentiments were “comfortably consonant with the smart-set views of the day,” R. Garnett, Taking Pierce Seriously: The Family, Religious Education, and Harm to Children, 76 Notre Dame L. Rev. 109, 124 (2000) (Garnett),5 the Court rejected them as antithetical to our Nation’s “fundamental theory of liberty,” 268 U. S., at 535.
The Board’s “LGBTQ+-inclusive” curriculum and no-opt-out policy pursue the kind of ideological conformity that Pierce and Yoder prohibit. To be sure, the Board frames its policy in more veiled terms. It has maintained throughout this litigation that the storybooks serve broad interests in “promot[ing] equity, respect, and civility among [its] diverse community”; “normaliz[ing] a fully inclusive environment”; “encourag[ing] respect for all”; and creating a “safe educational environment.” Defendants’ Memorandum of Law in Opposition, ECF Doc. 42, p. 32; ECF Doc. 42–1, at 2, 6 (internal quotation marks omitted). It further determined that allowing opt-outs might “expos[e]” students “who believe that the books represent them or their families” to “social stigma and isolation.” App. to Pet. for Cert. 607a–608a; see also ante, at 10. As the acting principal of one Montgomery County public school euphemistically explained, “being accepting is the goal.” App. to Pet. for Cert. 498a.
But, the Board’s response to parents’ unsuccessful attempts to opt their children out of the storybook curriculum conveys that parents’ religious views are not welcome in the “fully inclusive environment” that the Board purports to foster. ECF Doc. 42–1, at 6. As the majority recounts, the Board ignored that “ ‘thousands’ of parents felt ‘deeply dismayed and betrayed’ by the rescission of opt outs from ‘content that conflict[s] with their sincerely held religious beliefs.’ ” Ante, at 10. After parents attempted to opt their children out of the Board’s new curriculum on religious grounds, at least one Board member suggested that students were “ ‘ “parroting” ’ ” their parents’ “ ‘ “dogma” ’ ” Ibid. The Board member further analogized the parents to “ ‘ “white supremacists” ’ ” and “ ‘ “xenophobes.” ’ ” Ante, at 11. And, a different Board member suggested that any objection to the “LGBTQ+-inclusive” curriculum stemmed from “ ‘ignorance and hate.’ ” Ante, at 9. In the Board’s view, for parents to suggest that the storybooks were inappropriate would be “a dehumanizing form of erasure.” App. to Pet. for Cert. 514a. At a minimum, these statements suggest that “being accepting” has limits—and that parents’ sincerely held religious beliefs fall beyond them. Id., at 498a.
The curriculum itself also betrays an attempt to impose ideological conformity with specific views on sexuality and gender. The storybooks are, “[l]ike many books targeted at young children, . . . unmistakably normative.” Ante, at 22. They present views that run contrary to traditional religious teachings as “correct and worthy of acclaim,” asserting, for example, that “sex is irrelevant to whether two people can get married,” that students should question their genders, and that gender transitions are unequivocally positive. See ante, at 22–25. Beyond the materials themselves, the Board instructed teachers to reprimand certain traditional religious views about sex and gender as “ ‘hurtful,’ ” and to respond to students’ questions with answers that, among other things, endorse same-sex marriage and transgender ideology. See ante, at 25–26.
The Board’s exclusion of traditional religious views, coupled with a curriculum that “pressure[s students] to conform,” Yoder, 406 U. S., at 211, constitute an impermissible attempt to “standardize” the views of students, Pierce, 268 U. S., at 535. Just as Oregon claimed that it would use its education system to promote “equality” and generate “patriotic and law-abiding citizens,” id., at 526–527 (arguments of counsel), the Board purports to use the same means to promote “ ‘equity’ ” and create “ ‘civi[l]’ ” students. ECF Doc. 42, at 8, 9. But, in both instances, the government’s vision is irreconcilable with “the rights of parents to direct the religious upbringing of their children,” Yoder, 406 U. S., at 233, even if it aligns with “the smart-set views of the day,” Garnett 124; see, e.g., H. Alvaré, Families, Schools, and Religious Freedom, 54 Loyola U. Chi. L. J. 579, 631–632 (2022) (observing that “the most visible corporations and websites . . . celebrate beliefs and conduct about the family that directly contradict Christian norms”).
At bottom, the parents in this case are “member[s] of the community too.” Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. 449, 463 (2017). Their objections to the Board’s curriculum follow “decent and honorable religious . . . premises.” Obergefell v. Hodges, 576 U. S. 644, 672 (2015). Far from promoting “inclusi[on]” and “respect for all,” ECF Doc. 42–1, at 6, the Board’s no-opt-out policy imposes conformity with a view that undermines parents’ religious beliefs, and thus interferes with the parents’ right to “direct the religious upbringing of their children,” Yoder, 406 U. S., at 232–233.6
B
The Board’s alleged interest in efficient administration does not help it, either. In the Board’s view, if it can show that it “ ‘could not accommodate the growing number of opt out requests without causing significant disruptions to the classroom and undermining [its] educational mission,’ ” then it can vindicate its policy. Brief for Respondents 49. But, as the majority notes, the significant disruptions that the Board complains about are “a product of its own design.” Ante, at 39. If the Court were to accept the Board’s argument, we would effectively give schools a playbook for evading the First Amendment.
Teaching young children about sexual and gender identity in ways that contradict parents’ religious teachings undermines those parents’ right to “direct the religious upbringing of their children,” Yoder, 406 U. S., at 233,7 and the Board may undermine that right only if it has no other way to advance a compelling interest. Here, not only do the Board’s interests in its curriculum and policy fall below the “highest order” of importance, see supra, at 4–5, 8–11, but these alleged logistical challenges are attributable to the Board’s deliberate decision to “weave” the storybooks into its broader curriculum. Brief for Respondents 13; see also ante, at 38–39.
The Board easily could avoid sowing tension between its curriculum and parents’ First Amendment rights. Most straightforwardly, rather than attempt to “weave the storybooks seamlessly into ELA lessons,” the Board could cabin its sexual- and gender-identity instruction to specific units. Brief for Respondents 13; see ante, at 38–39. The Board’s formal sex-education curriculum, for example, is a “discrete” “[u]nit of [i]nstruction” from which parents may opt out their children “for any reason.” Brief for Respondents 11; see also Tr. of Oral Arg. 131 (noting that sex education is “something where you’re able to predict precisely when the curriculum is going to be deployed”). Had the Board confined its “LGBTQ-inclusive” curriculum to a “discrete” “[u]nit” as well, Brief for Respondents 11, parental opt outs would pose no greater administrative burden on schools than those that the schools already confront. The Board instead chose to incorporate these controversial concepts into broader instruction.
The Board may not insulate itself from First Amendment liability by “weav[ing]” religiously offensive material throughout its curriculum and thereby significantly increase the difficulty and complexity of remedying parents’ constitutional injuries. Id., at 13. Were it otherwise, the State could nullify parents’ First Amendment rights simply by saturating public schools’ core curricula with material that undermines “family decisions in the area of religious training.” Yoder, 406 U. S., at 231. The “Framers intended” for “free exercise of religion to flourish.” Espinoza, 591 U. S., at 497 (Thomas, J., concurring). Insofar as schools or boards attempt to employ their curricula to interfere with religious exercise, courts should carefully police such “ingenious defiance of the Constitution” no less than they do in other contexts. South Carolina v. Katzenbach, 383 U. S. 301, 309 (1966).
Notes
1 See S. Brannen, Uncle Bobby’s Wedding (2020); C. Johnson, L. Council, & C. Choi, Intersection Allies (2019); D. Haack, Prince & Knight (2020); C. Wild, Love, Violet (2021); J. Patterson, Born Ready (2021).
2 The majority discusses five books currently incorporated in the Board’s “LGBTQ+-inclusive” curriculum. Ante, at 4–6. The Board had also approved another book, Pride Puppy, but, after more than a year of using the book in classroom instruction, the Board removed it due to content concerns during the course of this litigation. See N. Asbury, Montgomery Schools Stopped Using Two LGBTQ-Inclusive Books Amid Legal Battle, Washington Post, Oct. 23, 2024, https://www.washingtonpost. com/education/2024/10/23/montgomery-schools-opt-out-storybooks/; see also ante, at 4, n. 6. Pride Puppy tells the story of a young child “celebrating Pride Day” and losing her dog in the parade. See App. to Pet. for Cert. 234a. The book, which the Board intended for teachers to read to 3- and 4-year-olds, see ibid., invites readers to search for items depicted in the book’s illustrations, including “underwear,” a “[drag] king,” and a “[drag] queen,” id., at 270a.
3 According to Justice Sotomayor, the recency inquiry outlined in Yoder could inhibit schools’ ability to teach “computer literacy, robotics, and film studies,” and thus “fails to appreciate the constantly evolving nature of education.” Post, at 37, n. 17 (dissenting opinion). But, Justice Sotomayor fails to appreciate the enduring nature of religion—and the Constitution’s respect for it. As the Court explained in Yoder, a compelled curriculum focused on “contemporary worldly society”—no matter how practically useful—may still impermissibly “contraven[e] . . . basic religious tenets and practice . . . , both as to the parent and the child.” 406 U. S., at 211, 218.
4 The Court decided Pierce 15 years before it recognized that the First Amendment’s free-exercise guarantee applies against the States. See Cantwell v. Connecticut, 310 U. S. 296, 303 (1940).
5 The anti-Catholic views animating Oregon’s law were both popular and prestigious. Harper’s Weekly warned that “every good citizen should strenuously oppose” Catholics’ plans for “extension of the Roman sect.” The “Parochial” Schools, Harpers Weekly, Apr. 10, 1875, p. 294; see also Espinoza v. Montana Dept. of Revenue, 591 U. S. 464, 500 (2020) (Alito, J., concurring) (picturing 1871 Harper’s Weekly cartoon “depict[ing] Catholic [bishops] as crocodiles slithering hungrily toward American children”). “Books full of anti-Catholic sentiment, and stern nativist warnings, were best-sellers” at the time. Carter 1197. Ellwood Cubberley of Stanford University—the “preeminent education scholar” of the era—“identified the assimilation of immigrants as the dominant schooling challenge of the time.” J. Driver, The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind 44 (2018). And, John Dewey, one of the 20th century’s most prominent educational reformers, “insisted that parents should not be permitted to ‘inoculate’ their children with the outdated and useless religious beliefs that they ‘happen[ed] to have found serviceable to themselves.’ ” Garnett 124, n. 69.
6 Justice Sotomayor responds that, “[i]f there is any conformity that the Board seeks to instill, it is universal acceptance of kindness and civility.” Post, at 33, n. 15. I recognize that the Board purports to instill such a principle. See supra, at 8–9. But, as discussed above, in this case Board members’ treatment of parents has been neither “kin[d]” nor “civi[l]” nor “universal[ly] accept[ing].” Post, at 33, n. 15 (opinion of Sotomayor, J.). The Board’s decision to disregard—or, in some cases, to denigrate—parents’ sincerely held religious beliefs is anathema to its declared objectives.
7 Not only are “sexual orientation and gender identity” “sensitive political topics,” Janus v. State, County, and Municipal Employees, 585 U. S. 878, 913–914 (2018), but education about these subjects is uniquely likely to “interfer[e]” with children’s “religious development,” Yoder, 406 U. S., at 218. These subjects relate to “the very architecture” of many faiths. H. Alvaré, Families, Schools, and Religious Freedom, 54 Loyola U. Chi. L. J. 579, 629 (2022). Thus, when schools “offe[r] normative answers to moral questions” about these “familial matters,” their moral statements inevitably address “religious matter[s],” leaving the instruction “inseparable from what Pierce and Yoder firmly agreed belongs to parents’ constitutional authority respecting their children.” Id., at 617. The interference with parents’ right to direct their children’s religious upbringing is especially pronounced here, given the Board’s concession that the storybook curriculum may provide children with “a new perspective not easily contravened by their parents.” App. 46.
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