Mozert v. Hawkins County Board of Education

826 F.2d 1058 (6th Cir. 1987)

Lively, Chief Judge

This case arose under the Free Exercise Clause of the First Amendment, made applicable to the states by the Fourteenth Amendment. The district court held that a public school requirement that all students in grades one through eight use a prescribed set of reading textbooks violated the constitutional rights of objecting parents and students. The district court entered an injunction which required the schools to excuse objecting students from participating in reading classes where the textbooks are used and awarded the plaintiff parents more than $50,000 damages.

I.
A.

Early in 1983 the Hawkins County, Tennessee Board of Education adopted the Holt, Rinehart and Winston basic reading series (the Holt series) for use in grades 1–8 of the public schools of the county.

Like many school systems, Hawkins County schools teach “critical reading” as opposed to reading exercises that teach only word and sound recognition. “Critical reading” requires the development of higher order cognitive skills that enable students to evaluate the material they read, to contrast the ideas presented, and to understand complex characters that appear in reading material.

The plaintiff Vicki Frost is the mother of four children, three of whom were students in Hawkins County public schools in 1983. At the beginning of the 1983–84 school year Mrs. Frost read a story in a daughter’s sixth grade reader that involved mental telepathy. Mrs. Frost, who describes herself as a “born again Christian,” has a religious objection to any teaching about mental telepathy. Reading further, she found additional themes in the reader to which she had religious objections. After discussing her objections with other parents, Mrs. Frost talked with the principal of Church Hill Middle School and obtained an agreement for an alternative reading program for students whose parents objected to the assigned Holt reader. The students who elected the alternative program left their classrooms during the reading sessions and worked on assignments from an older textbook series in available office or library areas. Other students in two elementary schools were excused from reading the Holt books.

In November 1983 the Hawkins County School Board voted unanimously to eliminate all alternative reading programs and require every student in the public schools to attend classes using the Holt series. Thereafter the plaintiff students refused to read the Holt series or attend reading classes where the series was being used. The children of several of the plaintiffs were suspended for brief periods for this refusal. Most of the plaintiff students were ultimately taught at home, or attended religious schools, or transferred to public schools outside Hawkins County. One student returned to school because his family was unable to afford alternate schooling. Even after the board’s order, two students were allowed some accommodation, in that the teacher either excused them from reading the Holt stories, or specifically noted on worksheets that the student was not required to believe the stories.

On December 2, 1983, the plaintiffs, consisting of seven families—14 parents and 17 children—filed this action pursuant to 42 U.S.C. § 1983. In their complaint the plaintiffs asserted that they have sincere religious beliefs which are contrary to the values taught or inculcated by the reading textbooks and that it is a violation of the religious beliefs and convictions of the plaintiff students to be required to read the books and a violation of the religious beliefs of the plaintiff parents to permit their children to read the books. The plaintiffs sought to hold the defendants liable because “forcing the student-plaintiffs to read school books which teach or inculcate values in violation of their religious beliefs and convictions is a clear violation of their rights to the free exercise of religion protected by the First and Fourteenth Amendments to the United States Constitution.”

II.

[The defendants acknowledged that the plaintiffs’ religious beliefs are sincere and that certain passages in the reading texts offend those beliefs. However, they did not agree with the plaintiffs’ claim that because they found the passages offense, the reading requirement burdened their constitutional right to the free exercise of their religion. Similarly, the plaintiffs agreed that there was a compelling state interest for the defendants to provide a public education to the children of Hawkins County. However, they did not agree that the compelling interest required all students in grades 1–8 of the Hawkins County public schools to use the Holt, Rinehart and Winston basal reading textbooks. These disputed matters were left to be resolved at trial.]

The plaintiffs do not belong to a single church or denomination, but all consider themselves born again Christians. Mrs. Frost testified that the word of God as found in the Christian Bible “is the totality of my beliefs.” There was evidence that other members of their churches, and even their pastors, do not agree with their position in this case.

Mrs. Frost testified that she had spent more than 200 hours reviewing the Holt series and had found numerous passages that offended her religious beliefs. She stated that the offending materials fell into seventeen categories which she listed. These ranged from such familiar concerns of fundamentalist Christians as evolution and “secular humanism” to less familiar themes such as “futuristic supernaturalism,” pacifism, magic and false views of death.

In her lengthy testimony Mrs. Frost identified passages from stories and poems used in the Holt series that fell into each category. Illustrative is her first category, futuristic supernaturalism, which she defined as teaching “Man As God.” Passages that she found offensive described Leonardo da Vinci as the human with a creative mind that “came closest to the divine touch.” Similarly, she felt that a passage entitled “Seeing Beneath the Surface” related to an occult theme, by describing the use of imagination as a vehicle for seeing things not discernible through our physical eyes. She interpreted a poem, “Look at Anything,” as presenting the idea that by using imagination a child can become part of anything and thus understand it better. Mrs. Frost testified that it is an “occult practice” for children to use imagination beyond the limitation of scriptural authority. She testified that the story that alerted her to the problem with the reading series fell into the category of futuristic supernaturalism. Entitled “A Visit to Mars,” the story portrays thought transfer and telepathy in such a way that “it could be considered a scientific concept,” according to this witness. This theme appears in the testimony of several witnesses, i.e., the materials objected to “could” be interpreted in a manner repugnant to their religious beliefs.

Mrs. Frost described objectionable passages from other categories in much the same way. Describing evolution as a teaching that there is no God, she identified 24 passages that she considered to have evolution as a theme. She admitted that the textbooks contained a disclaimer that evolution is a theory, not a proven scientific fact. Nevertheless, she felt that references to evolution were so pervasive and presented in such a factual manner as to render the disclaimer meaningless. After describing her objection to passages that encourage children to make moral judgments about whether it is right or wrong to kill animals, the witness stated, “I thought they would be learning to read, to have good English and grammar, and to be able to do other subject work.” Asked by plaintiffs’ attorney to define her objection to the text books, Mrs. Frost replied:

Very basically, I object to the Holt, Rhinehart [sic] Winston series as a whole, what the message is as a whole. There are some contents which are objectionable by themselves, but my most withstanding [sic] objection would be to the series as a whole.

Another witness for the plaintiffs was Bob Mozert, father of a middle school and an elementary school student in the Hawkins County system. His testimony echoed that of Vicki Frost in large part, though his answers to questions tended to be much less expansive. He also found objectionable passages in the readers that dealt with magic, role reversal or role elimination, particularly biographical material about women who have been recognized for achievements outside their homes, and emphasis on one world or a planetary society. Both witnesses testified under cross-examination that the plaintiff parents objected to passages that expose their children to other forms of religion and to the feelings, attitudes and values of other students that contradict the plaintiffs’ religious views without a statement that the other views are incorrect and that the plaintiffs’ views are the correct ones.

III.
A.

The first question to be decided is whether a governmental requirement that a person be exposed to ideas he or she finds objectionable on religious grounds constitutes a burden on the free exercise of that person’s religion as forbidden by the First Amendment. This is precisely the way the superintendent of the Hawkins County schools framed the issue in an affidavit filed early in this litigation. In his affidavit the superintendent set forth the school system’s interest in a uniformity of reading texts. The affidavit also countered the claims of the plaintiffs that the schools were inculcating values and religious doctrines contrary to their religious beliefs, stating: “Without expressing an opinion as to the plaintiffs’ religious beliefs, I am of the opinion that plaintiffs misunderstand the fact that exposure to something does not constitute teaching, indoctrination, opposition or promotion of the things exposed. While it is true that these textbooks expose the student to varying values and religious backgrounds, neither the textbooks nor the teachers teach, indoctrinate, oppose or promote any particular value or religion.” That the district court accepted the issue as thus framed is clear from its reference to “exposure to the Holt series.”

It is also clear that exposure to objectionable material is what the plaintiffs objected to albeit they emphasize the repeated nature of the exposure. The complaint mentioned only the textbooks that the students were required to read. It did not seek relief from any method of teaching the material and did not mention the teachers’ editions. The plaintiffs did not produce a single student or teacher to testify that any student was ever required to affirm his or her belief or disbelief in any idea or practice mentioned in the various stories and passages contained in the Holt series. However, the plaintiffs appeared to assume that materials clearly presented as poetry, fiction and even “make-believe” in the Holt series were presented as facts which the students were required to believe. Nothing in the record supports this assumption.

At numerous places in her testimony Vicki Frost referred to various exercises and suggestions in the teachers’ manuals as support for her view that objectionable ideas were being inculcated as truth rather than being offered as examples of the variety of approaches possible to a particular question. However, the students were not required to read the teachers’ materials. While these materials suggested various ways of presenting the lessons, including “acting out” and round table discussions, there was no proof that any plaintiff student was ever called upon to say or do anything that required the student to affirm or deny a religious belief or to engage or refrain from engaging in any act either required or forbidden by the student’s religious convictions. Mrs. Frost seemed to assume that each teacher used every suggested exercise or teaching tool in the teachers’ editions. There was evidence that reading aloud and acting out the themes encountered in school lessons help young people learn. One of the teachers stated that students read some of the stories aloud. Proof that an objecting student was required to participate beyond reading and discussing assigned materials, or was disciplined for disputing assigned materials, might well implicate the Free Exercise Clause because the element of compulsion would then be present. But this was not the case either as pled or proved. The record leaves no doubt that the district court correctly viewed this case as one involving exposure to repugnant ideas and themes as presented by the Holt series.

Vicki Frost testified that an occasional reference to role reversal, pacifism, rebellion against parents, one-world government and other objectionable concepts would be acceptable, but she felt it was the repeated references to such subjects that created the burden. The district court suggested that it was a matter of balance, apparently believing that a reading series that presented ideas with which the plaintiffs agree in juxtaposition to those with which they disagree would pass constitutional muster. While balanced textbooks are certainly desirable, there would be serious difficulties with trying to cure the omissions in the Holt series, as plaintiffs and their expert witnesses view the texts.

However, the plaintiffs’ own testimony casts serious doubt on their claim that a more balanced presentation would satisfy their religious views. Mrs. Frost testified that it would be acceptable for the schools to teach her children about other philosophies and religions, but if the practices of other religions were described in detail, or if the philosophy was “profound” in that it expressed a world view that deeply undermined her religious beliefs, then her children “would have to be instructed to [the] error [of the other philosophy].” It is clear that to the plaintiffs there is but one acceptable view—the Biblical view, as they interpret the Bible. Furthermore, the plaintiffs view every human situation and decision, whether related to personal belief and conduct or to public policy and programs, from a theological or religious perspective. Mrs. Frost testified that many political issues have theological roots and that there would be “no way” certain themes could be presented without violating her religious beliefs. She identified such themes as evolution, false supernaturalism, feminism, telepathy and magic as matters that could not be presented in any way without offending her beliefs. The only way to avoid conflict with the plaintiffs’ beliefs in these sensitive areas would be to eliminate all references to the subjects so identified. However, the Supreme Court has clearly held [in Epperson v. Arkansas] that it violates the Establishment Clause to tailor a public school’s curriculum to satisfy the principles or prohibitions of any religion.

The testimony of the plaintiffs’ expert witness, Dr. Vitz, illustrates the pitfalls of trying to achieve a balance of materials concerning religion in a reading course. He found “markedly little reference to religion, particularly Christianity, and also remarkably little to Judaism” in the Holt series. His solution would be to “beef up” the references to these two dominant religions in the United States. However, an adherent to a less widely professed religion might then object to the slighting of his or her faith. Balance in the treatment of religion lies in the eye of the beholder. Efforts to achieve the particular “balance” desired by any individual or group by the addition or deletion of religious material would lead to a forbidden entanglement of the public schools in religious matters, if done with the purpose or primary effect of advancing or inhibiting religion.

In [previous cases finding a burden on free exercise], there was governmental compulsion to engage in conduct that violated the plaintiffs’ religious convictions. That element is missing in the present case. The requirement that students read the assigned materials and attend reading classes, in the absence of a showing that this participation entailed affirmation or denial of a religious belief, or performance or non-performance of a religious exercise or practice, does not place an unconstitutional burden on the students’ free exercise of religion.

[The court then distinguished several cases, including Board of Education v. Barnette.] Barnette grew out of a school board rule that required all schools to make a salute to the flag and a pledge of allegiance a regular part of their daily program. All teachers and students were required to participate in the exercise and refusal to engage in the salute was considered an act of insubordination which could lead to expulsion and possible delinquency charges for being unlawfully absent. The plaintiff was a Jehovah’s Witness who considered the flag an “image” which the Bible forbids worshiping in any way. Justice Jackson, writing for the Court, stated:

[W]e are dealing with a compulsion of students to declare a belief. They are not merely made acquainted with the flag salute so that they may be informed as to what it is or even what it means.

Further, explaining the basis of the decision, Justice Jackson wrote:

Here it is the State that employs a flag as a symbol of adherence to government as presently organized. It requires the individual to communicate by word and sign his acceptance of the political ideas it thus bespeaks.

It is abundantly clear that the exposure to materials in the Holt series did not compel the plaintiffs to “declare a belief,” “communicate by word and sign [their] acceptance” of the ideas presented, or make an “affirmation of a belief and an attitude of mind.” In Barnette the unconstitutional burden consisted of compulsion either to do an act that violated the plaintiff’s religious convictions or communicate an acceptance of a particular idea or affirm a belief. No similar compulsion exists in the present case.

It is clear that governmental compulsion either to do or refrain from doing an act forbidden or required by one’s religion, or to affirm or disavow a belief forbidden or required by one’s religion, is the evil prohibited by the Free Exercise Clause.

The plaintiffs appear to contend that the element of compulsion was supplied by the requirement of class participation in the reading exercises. As we have pointed out earlier, there is no proof in the record that any plaintiff student was required to engage in role play, make up magic chants, read aloud or engage in the activity of haggling. In fact, the Director of Education for the State of Tennessee testified that most teachers do not adhere to the suggestions in the teachers’ manuals and a teacher for 11 years in the Hawkins County system stated that she looks at the lesson plans in the teachers’ editions, but “does her own thing.” Being exposed to other students performing these acts might be offensive to the plaintiffs, but it does not constitute the compulsion described in the Supreme Court cases, where the objector was required to affirm or deny a religious belief or engage or refrain from engaging in a practice contrary to sincerely held religious beliefs.

[The plaintiffs also rely upon Wisconsin v. Yoder] to support the proposition that requiring mere exposure to materials that offend one’s religious beliefs creates an unconstitutional burden on the free exercise of religion. However, Yoder rested on such a singular set of facts that we do not believe it can be held to announce a general rule that exposure without compulsion to act, believe, affirm or deny creates an unconstitutional burden. The plaintiff parents in Yoder were Old Order Amish and members of the Conservative Amish Mennonite Church, who objected to their children being required to attend either public or private schools beyond the eighth grade. Wisconsin school attendance law required them to cause their children to attend school until they reached the age of 16. Unlike the plaintiffs in the present case, the parents in Yoder did not want their children to attend any high school or be exposed to any part of a high school curriculum. The Old Order Amish and the Conservative Amish Mennonites separate themselves from the world and avoid assimilation into society, and attempt to shield their children from all worldly influences. The Supreme Court found from the record that—

[C]ompulsory school attendance to age 16 for Amish children carries with it a very real threat to undermining the Amish community and religious practice as they exist today; they must either abandon belief and be assimilated into society at large, or be forced to migrate to some other and more tolerant region.

As if to emphasize the narrowness of its holding because of the unique 300 year history of the Old Amish Order, the Court wrote:

It is one thing to say that compulsory education for a year or two beyond the eighth grade may be necessary when its goal is the preparation of the child for life in modern society as the majority live, but it is quite another if the goal of education be viewed as the preparation of the child for life in the separated agrarian community that is the keystone of the Amish faith.

This statement points up dramatically the difference between Yoder and the present case. The parents in Yoder were required to send their children to some school that prepared them for life in the outside world, or face official sanctions. The parents in the present case want their children to acquire all the skills required to live in modern society. They also want to have them excused from exposure to some ideas they find offensive. Tennessee offers two options to accommodate this latter desire. The plaintiff parents can either send their children to church schools or private schools, as many of them have done, or teach them at home. Tennessee law prohibits any state interference in the education process of church schools:

The state board of education and local boards of education are prohibited from regulating the selection of faculty or textbooks or the establishment of a curriculum in church-related schools.

Similarly the statute permitting home schooling by parents or other teachers prescribes nothing with respect to curriculum or the content of class work.

Yoder was decided in large part on the impossibility of reconciling the goals of public education with the religious requirement of the Amish that their children be prepared for life in a separated community. As the Court noted, the requirement of school attendance to age 16 posed a “very real threat of undermining the Amish community and religious practice as they exist today.” No such threat exists in the present case, and Tennessee’s school attendance laws offer several options to those parents who want their children to have the benefit of an education which prepares for life in the modern world without being exposed to ideas which offend their religious beliefs.

IV.
A.

The Supreme Court has recently affirmed that public schools serve the purpose of teaching fundamental values “essential to a democratic society.” These values “include tolerance of divergent political and religious views” while taking into account “consideration of the sensibilities of others.” The Court has noted with apparent approval the view of some educators who see public schools as an “assimilative force” that brings together “diverse and conflicting elements” in our society “on a broad but common ground.” The critical reading approach furthers these goals. Mrs. Frost stated specifically that she objected to stories that develop “a religious tolerance that all religions are merely different roads to God.” Stating that the plaintiffs reject this concept, presented as a recipe for an ideal world citizen, Mrs. Frost said, “We cannot be tolerant in that we accept other religious views on an equal basis with ours.” While probably not an uncommon view of true believers in any religion, this statement graphically illustrates what is lacking in the plaintiffs’ case.

The “tolerance of divergent . . . religious views” referred to by the Supreme Court is a civil tolerance, not a religious one. It does not require a person to accept any other religion as the equal of the one to which that person adheres. It merely requires a recognition that in a pluralistic society we must “live and let live.” If the Hawkins County schools had required the plaintiff students either to believe or say they believe that “all religions are merely different roads to God,” this would be a different case. No instrument of government can, consistent with the Free Exercise Clause, require such a belief or affirmation. However, there was absolutely no showing that the defendant school board sought to do this; indeed, the school board agreed at oral argument that it could not constitutionally do so. Instead, the record in this case discloses an effort by the school board to offer a reading curriculum designed to acquaint students with a multitude of ideas and concepts, though not in proportions the plaintiffs would like. While many of the passages deal with ethical issues, on the surface at least, they appear to us to contain no religious or anti-religious messages. Because the plaintiffs perceive every teaching that goes beyond the “three Rs” as inculcating religious ideas, they admit that any value-laden reading curriculum that did not affirm the truth of their beliefs would offend their religious convictions.

Although it is not clear that the plaintiffs object to all critical reading, Mrs. Frost did testify that she did not want her children to make critical judgments and exercise choices in areas where the Bible provides the answer. There is no evidence that any child in the Hawkins County schools was required to make such judgments. It was a goal of the school system to encourage this exercise, but nowhere was it shown that it was required. When asked to comment on a reading assignment, a student would be free to give the Biblical interpretation of the material or to interpret it from a different value base. The only conduct compelled by the defendants was reading and discussing the material in the Holt series, and hearing other students’ interpretations of those materials. This is the exposure to which the plaintiffs objected. What is absent from this case is the critical element of compulsion to affirm or deny a religious belief or to engage or refrain from engaging in a practice forbidden or required in the exercise of a plaintiff’s religion.

In his concurring opinion [in McCollum v. Board of Education,] Justice Jackson emphasized that some compulsion to perform a religiously prohibited ritual or make a religiously prohibited affirmation is essential to a claim of infringement of the free exercise rights of students in public schools. Noting the large number of separate religious bodies existing in the United States, he wrote:

If we are to eliminate everything that is objectionable to any of these warring sects or inconsistent with any of their doctrines, we will leave public education in shreds. Nothing but educational confusion and a discrediting of the public school system can result from subjecting it to constant law suits.

The Supreme Court has cautioned [in Epperson] that “[j]udicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint.” When asked to “interpose,” courts must examine the record very carefully to make certain that a constitutional violation has occurred before they order changes in an educational program adopted by duly chosen local authorities. . . .

Since we have found none of the prohibited forms of governmental compulsion in this case, we conclude that the plaintiffs failed to establish the existence of an unconstitutional burden. Having determined that no burden was shown, we do not reach the issue of the defendants’ compelling interest in requiring a uniform reading series or the question, raised by the defendant, of whether awarding damages violated the Establishment Clause.

Boggs, Circuit Judge, concurring.

I concur with my colleagues that Hawkins County is not required by the Constitution to allow plaintiffs the latitude they seek in the educational program of these children. However, I reach that result on a somewhat different view of the facts and governing principles here. It seems that the court’s opinion rests first on the view that plaintiffs’ objection is to any exposure to contrary ideas, and that no one’s religious exercise can be burdened simply by compelled exposure. Second, the opinion rests on the view that no burden can exist here because plaintiffs were not compelled to engage in any conduct prohibited by, or refrain from any practice required by, their religious beliefs.

I do not believe these attempted distinctions will survive analysis. If the situation of these children is not a burden on their religious exercise, it must be because of a principle applicable to all religious objectors to public school curricula. Thus, I believe a deeper issue is present here, is implicitly decided in the court’s opinion, and should be addressed openly. The school board recognizes no limitation on its power to require any curriculum, no matter how offensive or one-sided, and to expel those who will not study it, so long as it does not violate the Establishment Clause. Our opinion today confirms that right, and I would like to make plain my reasons for taking that position.

Preliminarily, as my colleagues indicate, we make no judgment on the educational, political or social soundness of the school board’s decision to adopt this particular set of books and this general curricular approach. This is not a case about fundamentalist Christians or any particular set of beliefs. It is about the constitutional limits on the powers of school boards to prescribe a curriculum. For myself, I approach this case with a profound sense of sadness. At the classroom level, the pupils and teachers in these schools had in most cases reached a working accommodation. Only by the decisions of higher levels of political authority, and by more conceptualized presentations of the plaintiffs’ positions, have we reached the point where we must decide these harsh questions today. The school board faced what must have seemed a prickly and difficult group of parents, however dedicated to their children’s welfare.

As this case now reaches us, the school board rejects any effort to reach out and take in these children and their concerns. At oral argument, the board specifically argued that it was better for both plaintiffs’ children and other children that they not be in the public schools, despite the children’s obvious desire to obtain some of the benefits of public schooling. Though the board recognized that their allegedly compelling interests in shaping the education of Tennessee children could not be served at all if they drove the children from the school, the board felt it better not to be associated with any hybrid program.

Plaintiffs’ requests were unusual, but a variety of accommodations in fact were made, with no evidence whatsoever of bad effects. Given the masses of speculative testimony as to the hypothetical future evils of accommodating plaintiffs in any way, had there been any evidence of bad effects from what actually occurred, the board would surely have presented it. As we ultimately decide here, on the present state of constitutional law, the school board is indeed entitled to say, “my way or the highway.” But in my view the school board’s decision here is certainly not required by the Establishment Clause.

Returning to the treatment of plaintiffs’ free exercise claim, I believe this is a more difficult case than outlined in the court’s opinion. I disagree with the first proposition in the court’s opinion, that plaintiffs object to any exposure to any contrary idea. I do not believe we can define for plaintiffs their belief as to what is religiously forbidden to be so comprehensive, where both they and the district court have spoken to the contrary. A reasonable reading of plaintiffs’ testimony shows they object to the overall effect of the Holt series, not simply to any exposure to any idea opposing theirs. The district court specifically found that the objection was to exposure to the Holt series, not to any single story or idea.

Ultimately, I think we must address plaintiffs’ claims as they actually impact their lives: it is their belief that they should not take a course of study which, on balance, to them, denigrates and opposes their religion, and which the state is compelling them to take on pain of forfeiting all other benefits of public education.

Their view may seem silly or wrong-headed to some, but it is a sincerely held religious belief. By focusing narrowly on references that make plaintiffs appear so extreme that they could never be accommodated, the court simply leaves resolution of the underlying issues here to another case, when we have plaintiffs with a more sophisticated understanding of our own and Supreme Court precedent, and a more careful and articulate presentation of their own beliefs.

Under the court’s assessment of the facts, this is a most uninteresting case. It is not the test case sought, or feared, by either side. The court reviews the record and finds that the plaintiffs actually want a school system that affirmatively teaches the correctness of their religion, and prevents other students from mentioning contrary ideas. If that is indeed the case, then it can be very simply resolved. It would obviously violate the Establishment Clause for any school system to agree with such an extravagant view.

It should be noted and emphasized that if such is the holding, this decision is largely irrelevant to the national legal controversy over this case. The extent to which school systems may constitutionally require students to use educational materials that are objectionable, contrary to, or forbidden by their religious beliefs is a serious and important issue. The question of exactly how terms such as “contrary,” “objectionable,” and “forbidden,” are to be assessed in the context of religious beliefs is a subtle and interesting one. But this decision, as I understand it, addresses none of those questions. When a case arises with more sophisticated or cagey plaintiffs, or less skillful cross-examination, that true issue must be faced anew, with little guidance from this decision. Since these plaintiffs’ claims are rejected because they are read to be so extreme as obviously to violate the Establishment Clause, this case is no precedent for the more specific and narrowly drawn complaint that the district court and plaintiffs’ counsel (and, to me, the plaintiffs) thought the plaintiffs were making.

I find the court’s conclusion based on its reading of the record to be unsatisfactory on the factual basis of what was said at the trial. The trial strategies of the two sides were clear. The plaintiffs understood that the more thoroughgoing and extensive their objections, the less possible would it be to accommodate them within the bounds of the Constitution. Therefore, the plaintiffs repeatedly stated their objections in terms of the overall Holt series.

The defendants equally clearly sought to depict plaintiffs’ objections in the most constitutionally offensive terms. By skillful cross-examination, they did elicit on some occasions the statements on which the court relies. I believe these two lines of apparently contradictory testimony can be reconciled by recognizing the different meanings or usage of the same words or phrases such as “objectionable,” “want,” or “opposed to.” These words can cover a gamut from mild objection or desire to constitutional insistence. Something may be “objectionable,” in the sense that one would rather it did not happen, but it is something that must be endured. Conversely, it may be “objectionable” in the sense that it should not be permitted or one should not be required to endure it. Thus, I may find Muzak on buses, or in-flight movies, “objectionable,” but that’s life. However, one might find the display of pornographic material in either location “objectionable” to the point that a relatively captive audience legally should not be subjected to it.

Similarly, plaintiffs may “want” a school system tailored exactly to their religious beliefs (that is why many people choose religious education), but they very well know that that is constitutionally impermissible. They “want” a particular type of accommodation that they have sought in this lawsuit, and they believe that they are constitutionally entitled to that. Judge Hull, who sat through eight days of trial testimony over these very issues, came to the same conclusion I do, expressed it in the form of a finding, and should not be overturned unless that finding is clearly erroneous. In my reading of the testimony, the judge’s finding is not only not clearly erroneous, but it can only be reversed by a failure to recognize a distinction between the ideal education the parents want, and that level of accommodation and education which they believe is constitutionally required and which they “want” here. Thus, I believe we must take plaintiffs’ claims as they have stated them—that they desire the accommodation of an opt-out, or alternative reading books, and no more. That is all they have ever asked for in their pleadings, in the arguments at trial and in appellate briefing and argument.

I also disagree with the court’s view that there can be no burden here because there is no requirement of conduct contrary to religious belief. That view both slights plaintiffs’ honest beliefs that studying the full Holt series would be conduct contrary to their religion, and overlooks other Supreme Court Free Exercise cases which view “conduct” that may offend religious exercise at least as broadly as do plaintiffs. . . .

Here, plaintiffs have drawn their line as to what required school activities, what courses of study, do and do not offend their beliefs to the point of prohibition. I would hold that if they are forced over that line, they are “engaging in conduct” forbidden by their religion. The court’s excellent summary of its holding on this point appears to concede that what plaintiffs were doing in school was conduct, but that there “was no evidence that the conduct required of the students was forbidden by their religion.” I cannot agree. The plaintiffs provided voluminous testimony of the conflict (in their view) between reading the Holt readers and their religious beliefs, including extensive Scriptural references. The district court found that “plaintiffs’ religious beliefs compel them to refrain from exposure to the Holt series.” I would think it could hardly be clearer that they believe their religion commands, not merely suggests, their course of action.

If plaintiffs did not use the exact words “reading these books is forbidden by our religion,” they certainly seemed to me to make that point clearly. The court’s summary also re-emphasizes my point, that the importance of this holding would be greatly diminished in a future case where plaintiffs can articulate the right set of words.

Thus, I believe the plaintiffs’ objection is to the Holt series as a whole, and that being forced to study the books is “conduct” contrary to their beliefs. In the absence of a narrower basis that can withstand scrutiny, we must address the hard issues presented by this case: (1) whether compelling this conduct forbidden by plaintiffs’ beliefs places a burden on their free exercise of their religion, in the sense of earlier Supreme Court holdings; and (2) whether within the context of the public schools, teaching material which offends a person’s religious beliefs, but does not violate the Establishment Clause, can be a burden on free exercise.

Determining whether the school board’s action places a substantial burden on the plaintiff’s free exercise of their religion requires a determination of the scope of the religious beliefs or practices protected by the Free Exercise Clause. Although the Supreme Court has shied away from attempting to define religion, the past forty years has witnessed an expansion of the court’s understanding of religious belief. The concept of religion has shifted from a fairly narrow traditional theism, to a broader concept providing protection for the views of unorthodox and nontheistic faiths. The plaintiffs here have no problem fitting within any of the Court’s various definitions of religion, as no one contends that their basic beliefs are not religious.

However, determining that plaintiffs’ beliefs are religious does not automatically mean that all practices or observances springing from those beliefs are entitled to the same amount of protection under the Free Exercise Clause. At one point, the Court made a distinction [in Reynolds v. United States] between religious beliefs and actions, indicating that the government could never interfere with belief or opinion, but could always regulate practices. This distinction did not hold, as the Court has provided protection for such religious conduct as soliciting contributions, Cantwell v. Connecticut, and of course, observing one’s chosen Sabbath, Sherbert v. Verner, or refusing to work on armaments.

There remains the question of which religious conduct may not be burdened (and thus must be accommodated unless a compelling interest justifies it), by government action. One theory would draw the line between actions that are compelled or dictated by religious belief and those that are merely motivated or influenced by these beliefs. “Not all actions are necessarily required (duties) or forbidden (sins); religion addresses what is ‘better’ as well as what is ‘good.’”

For me, the key fact is that the Court has almost never interfered with the prerogative of school boards to set curricula, based on free exercise claims. West Virginia State Board of Education v. Barnette may be the only case, and even there a specific affirmation was required, implicating a non-religious First Amendment basis, as well.

From a common sense view of the word “burden,” Sherbert and Thomas are very strong cases for plaintiffs. In any sensible meaning of a burden, the burden in our case is greater than in Thomas or Sherbert. Both of these cases involved workers who wanted unemployment compensation because they gave up jobs based on their religious beliefs. Their actual losses that the Court made good, the actual burden that the Court lifted, was one or two thousand dollars at most. Although this amount of money was certainly important to them, the Court did not give them their jobs back. The Court did not guarantee they would get any future job. It only provided them access to a sum of money equally with those who quit work for other “good cause” reasons.

Here, the burden is many years of education, being required to study books that, in plaintiffs’ view, systematically undervalue, contradict and ignore their religion. I trust it is not simply because I am chronologically somewhat closer than my colleagues to the status of the students involved here that I interpret the choice forced upon the plaintiffs here as a “burden.”

However, constitutional adjudication, especially for a lower court, is not simply a matter of common sense use of words. We must determine whether the common sense burden on plaintiffs’ religious belief is, in the context of a public school curriculum, a constitutional “burden” on their religious beliefs.

I do not support an extension by this court of the principles of Sherbert and Thomas to cover this case, even though there is a much stronger economic compulsion exercised by public schooling than by any unemployment compensation system. I think the constitutional basis for those cases is sufficiently thin that they should not be extended blindly. The exercise there was of a narrow sort, and did not explicitly implicate the purposes or methods of the program itself.

Running a public school system of today’s magnitude is quite a different proposition. A constitutional challenge to the content of instruction (as opposed to participation in ritual such as magic chants, or prayers) is a challenge to the notion of a politically-controlled school system. Imposing on school boards the delicate task of satisfying the “compelling interest” test to justify failure to accommodate pupils is a significant step. It is a substantial imposition on the schools to require them to justify each instance of not dealing with students’ individual, religiously compelled, objections (as opposed to permitting a local, rough and ready, adjustment), and I do not see that the Supreme Court has authorized us to make such a requirement.

Our interpretation of these key phrases of our Bill of Rights in the school context is certainly complicated by the fact that the drafters of the Bill of Rights never contemplated a school system that would be the most pervasive benefit of citizenship for many, yet which would be very difficult to avoid.

The average public expenditure for a pupil in Hawkins County is about 20% of the income of the average household there. Even the modest tuition in the religious schools which some plaintiffs attended here amounted to about a doubling of the state and local tax burden of the average resident. Had the Founders recognized the possibility of state intervention of this magnitude, they might have written differently. However, it is difficult for me to see that the words “free exercise of religion,” at the adoption of the Bill of Rights, implied a freedom from state teaching, even of offensive material, when some alternative was legally permissible.

Therefore, I reluctantly conclude that under the Supreme Court’s decisions as we have them, school boards may set curricula bounded only by the Establishment Clause, as the state contends. Thus, contrary to the analogy plaintiffs suggest, pupils may indeed be expelled if they will not read from the King James Bible, so long as it is only used as literature, and not taught as religious truth. Contrary to the position of amicus American Jewish Committee, Jewish students may not assert a burden on their religion if their reading materials overwhelmingly provide a negative view of Jews or factual or historical issues important to Jews, so long as such materials do not assert any propositions as religious truth, or do not otherwise violate the Establishment Clause.

The court’s opinion well illustrates the distinction between the goals and values that states may try to impose and those they cannot, by distinguishing between teaching civil toleration of other religions, and teaching religious toleration of other religions. It is an accepted part of public schools to teach the former, and plaintiffs do not quarrel with that. Thus, the state may teach that all religions have the same civil and political rights, and must be dealt with civilly in civil society. The state itself concedes it may not do the latter. It may not teach as truth that the religions of others are just as correct as religions as plaintiffs’ own.

It is a more difficult question when, as here, the state presents materials that plaintiffs sincerely believe preach religious toleration of religions by consistent omission of plaintiffs’ religion and favorable presentation of opposing views. Our holding requires plaintiffs to put up with what they perceive as an unbalanced public school curriculum, so long as the curriculum does not violate the Establishment Clause. Every other sect or type of religious belief is bound by the same requirement. The rule here is not a rule just for fundamentalist dissenters, for surely the rule cannot be that when the school authorities disagree with non-fundamentalist dissenters, the school loses, and when the school authorities disagree with fundamentalists, the school wins. Rather, unless the Supreme Court chooses to extend the principle of Thomas to schools, the democratic principle must prevail.

Schools are very important, and some public schools offend some people deeply. That is one major reason private schools of many denominations—fundamentalist, Lutheran, Jewish—are growing. But a response to that phenomenon is a political decision for the schools to make. I believe that such a significant change in school law and expansion in the religious liberties of pupils and parents should come only from Supreme Court itself, and not simply from our interpretation. It may well be that we would have a better society if children and parents were not put to the hard choice posed by this case. But our mandate is limited to carrying out the commands of the Constitution and the Supreme Court.

I therefore concur in the result and reverse the judgment of the District Court.

Mahmoud v. Taylor

606 U.S. 522 (2025)

* The majority and dissent both include in appendices full-color illustrations excerpted from the storybooks. I have not reproduced these in this edited version of the opinions.

Justice Alito delivered the opinion of the Court.

The Board of Education of Montgomery County, Maryland (Board), has introduced a variety of “LGBTQ+-inclusive” storybooks into the elementary school curriculum. These books—and associated educational instructions provided to teachers—are designed to “disrupt” children’s thinking about sexuality and gender. The Board has told parents that it will not give them notice when the books are going to be used and that their children’s attendance during those periods is mandatory. A group of parents from diverse religious backgrounds sued to enjoin those policies. They assert that the new curriculum, combined with the Board’s decision to deny opt outs, impermissibly burdens their religious exercise.

Today, we hold that the parents have shown that they are entitled to a preliminary injunction. A government burdens the religious exercise of parents when it requires them to submit their children to instruction that poses “a very real threat of undermining” the religious beliefs and practices that the parents wish to instill. Wisconsin v. Yoder (1972). And a government cannot condition the benefit of free public education on parents’ acceptance of such instruction. Based on these principles, we conclude that the parents are likely to succeed in their challenge to the Board’s policies.

I.A.1

With just over one million residents, Montgomery County is Maryland’s most populous county. According to a recent survey, it is also the “most religiously diverse county” in the Nation. In addition to hosting a diverse mix of Christian denominations, the county ranks in the top five in the Nation in per-capita population of Jews, Muslims, Hindus, and Buddhists. The county’s religious diversity is accompanied by strong cultural diversity as well. The county is home to several notable ethnic communities. For example, the Ethiopian community in Silver Spring is one of the largest in the country. And according to one survey, “only 56.8% of county residents speak English at home.”

Most Montgomery County residents with school age children, by choice or necessity, send them to public school. As a general matter, Maryland law requires that resident children ages 5 to 18 “attend a public school regularly during the entire school year.” As an exception to this general rule, the State permits parents to send their children to private school or to educate them at home if certain requirements can be met. Parents who cause their children to be absent unlawfully from school can face fines, mandatory community service, and even imprisonment.

Public education in Montgomery County is provided by Montgomery County Public Schools (MCPS), one of the largest school districts in the Nation. In the 2022–2023 school year, MCPS enrolled 160,554 students in its 210 schools and had an operating budget of nearly $3 billion. The district is overseen and managed by the Montgomery County Board of Education, a policymaking body consisting of seven elected county residents and one student.

In recognition of the county’s religious diversity, the Board’s “Guidelines for Respecting Religious Diversity” profess a commitment to making “reasonable accommodations” for the religious “beliefs and practices” of MCPS students. These accommodations take various forms. For example, according to one MCPS official, the Board “advises principals that schools should avoid scheduling tests or other major events on dozens of . . . ‘days of commemoration,’ during which MCPS expects that many students may be absent . . . or engaged in religious or cultural observances.”

This case, however, arises from the Board’s abject refusal to heed widespread and impassioned pleas for accommodation. In the years leading up to 2022, the Board apparently “determined that the books used in its existing English & Language Arts curriculum were not representative of many students and families in Montgomery County because they did not include LGBTQ characters.” The Board therefore decided to introduce into the curriculum what it described as “LGBTQ+-inclusive texts.” As one email sent by MCPS principals reflects, the Board selected the books according to a “Critical Selection Repertoire” that required selectors to review potential texts and ask questions such as: “Is heteronormativity reinforced or disrupted?”; “Is cisnormativity reinforced or disrupted?”; and “Are power hierarchies that uphold the dominant culture reinforced or disrupted?”

In accordance with this “[r]epertoire” and other criteria, the Board eventually selected 13 “LGBTQ+-inclusive” texts for use in the English and Language Arts curriculum from pre-K through 12th grade. At issue in this lawsuit are the five “LGBTQ+-inclusive” storybooks that are approved for students in Kindergarten through fifth grade—in other words, for children who are generally between 5 and 11 years old.

A few short descriptions will serve to illustrate the general tenor of the storybooks. [The majority describes some of the content in the storybooks; it repeats most of these descriptions in Part III.A.2.]

The Board suggested “that teachers incorporate the new texts into the curriculum in the same way that other books are used, namely, to put them on a shelf for students to find on their own; to recommend a book to a student who would enjoy it; to offer the books as an option for literature circles, book clubs, or paired reading groups; or to use them as a read aloud.” And “as with all curriculum resources,” the Board voiced its “expectation that teachers use the LGBTQ-Inclusive Books as part of instruction.” An MCPS official has made clear that “teachers cannot . . . elect not to use the LGBTQ-Inclusive Books at all.”

The Board also contemplated that instruction involving the “LGBTQ+-inclusive” storybooks would include classroom discussion. In anticipation of such discussion, the Board hosted a “professional development workshop” in the summer of 2022, where it provided teachers with a guidance document suggesting how they might respond to student inquiries regarding the themes presented in the books. For example, if a student asserts that two men cannot get married, the guidance document encouraged teachers to respond by saying: “When people are adults they can get married. Two men who love each other can decide they want to get married.” If a student claims that a character “can’t be a boy if he was born a girl,” teachers were encouraged to respond: “That comment is hurtful.” And if a student asks “what’s transgender?”, it was recommended that teachers explain: “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.” The guidance document encouraged teachers to “disrupt the either/or thinking” of their students.

At the same workshop, the Board also provided teachers with a guidance document that suggested particular responses to inquiries by parents. For example, if a parent were to ask whether the school was attempting to teach a child to “reject” the values taught at home, teachers were encouraged to respond that “teaching about LGBTQ+ is not about making students think a certain way; it is to show that there is no one ‘right’ or ‘normal’ way to be.” The guidance also urged teachers to assure parents that there would not be “explicit instruction” about gender and sexual identity, but that “there may be a need to define words that are new and unfamiliar to students,” and that “questions and conversations might organically happen.” If parents were not comforted by that information, teachers could tell them that “parents always have the choice to keep their student(s) home while using these texts; however, it will not be an excused absence.”

The Board officially launched the “LGBTQ+-inclusive” texts into MCPS schools in the 2022–2023 school year. Shortly thereafter, parents “began contacting individual teachers, principals, or MCPS staff ” about the storybooks and asking that their children be excused from classroom instruction related to them. Some parents showed up at the Board’s public business meetings to express their concerns about the storybooks’ content. In an early 2023 meeting, for example, one parent represented herself as “a voice for parents in [her] community, many of [whom] are actually working today and unable to attend.” She said that MCPS parents were “frustrated” because, in their view, “educators and administrators are going behind what parents are teaching their kids at home, and pushing ideas of gender ideology on their kids.” The parent felt that the Board was “implying to children that their religion, their belief system, and their family tradition is actually wrong.”

At the same Board meeting, one Board member responded by saying that “some of the testimony today was disturbing to me personally. Transgender, LGBTQ individuals are not an ideology, they are a reality. . . . There are religions out there that teach that women should only achieve certain subservient roles in life, and MCPS would never think of not having a book in a classroom that showed a woman” in a professional role. The Board’s student member agreed with the sentiment and proclaimed that “ignorance and hate does exist within our community, but please know that every student—each of our 160,000 students in our large county—has a place in the school system.”

Initially, the Board compromised with objecting parents by notifying them when the “LGBTQ+-inclusive” storybooks would be taught and permitting their children to be excused from instruction involving the books. That policy was consistent with the Board’s general “Guidelines for Respecting Religious Diversity,” which at the time provided that “when possible, schools should try to make reasonable and feasible adjustments to the instructional program to accommodate requests from students, or requests from parents/guardians on behalf of their students, to be excused from specific classroom discussions or activities that they believe would impose a substantial burden on their religious beliefs.”

This compromise, however, did not last long. In March 2023, less than a year after the “LGBTQ+-inclusive” texts were introduced, the Board issued a statement declaring that “students and families may not choose to opt out of engaging” with the storybooks and that “teachers will not send home letters to inform families when inclusive books are read in the future.” According to one MCPS official, the Board decided to change its policy because, among other things, “individual principals and teachers could not accommodate the growing number of opt out requests without causing significant disruptions to the classroom environment.” The official also stated that permitting some students to exit the classroom while the storybooks were being taught would expose other students “to social stigma and isolation.” It was therefore announced that any existing accommodations would expire at the end of the 2022–2023 school year.

Shortly after the Board rescinded parental opt outs, more than 1,000 parents signed a petition asking the Board to restore opt out rights. And hundreds of displeased parents, including many Muslim and Ethiopian Orthodox parents, appeared at the Board’s public meetings and implored the Board to allow opt outs. At a May 2023 meeting, one community member testified 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.” At the same meeting, an MCPS student testified and asked the Board “to allow students like me to opt out of content and books that contain sensitive and mature topics that go against my religious beliefs.”

The Board was unmoved. After the testimony, several Board members and another MCPS official spoke up to “clarify” that the storybooks would not be used for explicit instruction on sexuality and gender, but rather as part of the “literacy curriculum.” According to a later news article, one Board member recalled that “she felt ‘kind of sorry’” for the student who testified in favor of opt outs, “and wondered to what extent she may have been ‘parroting dogma’ learned from her parents.” The Board member also expressed her view that “if parents want their child to receive an education that strictly adheres to their religious dogma, they can send their kid to a private religious school.” The Board member went on to suggest that the objecting parents were comparable to “white supremacists” who want to prevent their children from learning about civil rights and “xenophobes” who object to “ ‘stories about immigrant families.”

The Board continues to permit children to opt out of other school activities, including the “family life and human sexuality” unit of instruction, for which opt outs are required under Maryland law. And although the Board has amended its “Guidelines for Respecting Religious Diversity” to narrow the circumstances in which opt outs are permissible, those guidelines still allow opt outs from “noncurricular activities, such as classroom parties or free-time events that involve materials or practices in conflict with a family’s religious, and/or other, practices.”

B.1

At the time when this lawsuit was filed, petitioners Tamer Mahmoud and Enas Barakat had three children enrolled in MCPS, including one who was still in elementary school. Mahmoud and Barakat are Muslims who believe “that mankind has been divinely created as male and female” and “that ‘gender’ cannot be unwoven from biological ‘sex’—to the extent the two are even distinct—without rejecting the dignity and direction God bestowed on humanity from the start.” Mahmoud and Barakat believe that it would be “immoral” to expose their “young, impressionable, elementary-aged son” to a curriculum that “undermines Islamic teaching.” And, in their view, “the storybooks at issue in this lawsuit . . . directly undermine their efforts to raise” their son in the Islamic faith “because they encourage young children to question their sexuality and gender . . . and to dismiss parental and religious guidance on these issues.”

After the “LGBTQ+-inclusive” storybooks were introduced, Mahmoud and Barakat asked to have their son excused from the classroom when Prince & Knight was read. Their son’s principal initially permitted the boy to sit outside the classroom during that time. But, soon after, the Board announced that opt outs would no longer be available. Mahmoud and Barakat then felt “religiously compelled to send their son to private school at significant financial sacrifice.”

Petitioners Jeff and Svitlana Roman also had a son enrolled in an MCPS elementary school when this lawsuit was filed. Jeff Roman is Catholic, and Svitlana Roman is Ukrainian Orthodox. They believe that “sexuality is expressed only in marriage between a man and a woman for creating life and strengthening the marital union.” The Romans further believe “that gender and biological sex are intertwined and inseparable” and that “the young need to be helped to accept their own body as it was created.” The Romans understand that their son “loves his teachers and implicitly trusts them,” and so they fear that allowing those teachers to “teach principles about sexuality or gender identity that conflict with their religious beliefs” would “significantly interfere with their ability to form their son’s religious faith and religious outlook on life.”

After the “LGBTQ+-inclusive” storybooks were introduced, the Romans asked the principal of their son’s elementary school to notify them when the books were being read and to excuse their son from that instruction. The Romans were initially told that it was their “right” to ask that their son not be present when the books are read, but they were later informed that notice and opt outs would no longer be provided. Thus, the Romans, like Mahmoud and Barakat, were “religiously compelled to send their son to private school, at significant expense.”

Petitioners Chris and Melissa Persak have two elementary-age daughters who attend public school in Montgomery County. The Persaks are Catholics who believe “that all humans are created as male or female, and that a person’s biological sex is a gift bestowed by God that is both unchanging and integral to that person’s being.” The Persaks believe “that children—particularly those in elementary school—are highly impressionable to ideological instruction presented in children’s books or by schoolteachers.” They are concerned that the Board’s “LGBTQ+-inclusive” storybooks “are being used to impose an ideological view of family life and sexuality that characterizes any divergent beliefs as ‘hurtful.’” They think that such instruction will “undermine their efforts to raise their children in accordance with” their religious faith. The Persaks’ daughters were initially permitted to opt out of instruction related to the storybooks, but they no longer have that option.

The final petitioner, Kids First, is an unincorporated association of parents and teachers that was “formed to advocate for the return of parental notice and opt-out rights in the Montgomery County Public Schools.” One of Kids First’s board members—Grace Morrison—has a daughter who previously attended an MCPS elementary school. Morrison’s daughter has Down syndrome and attention deficit disorder. She previously required special accommodations from her public school, including a “full time, one-on-one paraeducator.” Morrison’s daughter also received special services from the school, such as speech and occupational therapy. Morrison and her husband are Catholics who believe that “marriage is the lifelong union of one man and one woman” and that gender is “interwoven” with sex. Due to their daughter’s learning challenges, they fear that she “doesn’t understand or differentiate instructions from her teachers and parents” and that they “won’t be able to contradict what she hears from teachers.”

Because of the services provided to her disabled daughter in public school, Morrison faced enormous “pressure” to keep her daughter enrolled. She asked that her daughter be excused from “LGBTQ+-inclusive” instruction, even after the Board’s decision to rescind opt outs. She was told, however, that opt outs would not be possible. As a result, the Morrisons felt “religiously compelled” to remove their daughter from public school. They anticipate that it will cost at least $25,000 per year to replace the academic and other services that their daughter formerly received from the public school system.

Faced with the Board’s decision to rescind opt outs, petitioners filed this lawsuit in the United States District Court for the District of Maryland. Among other things, they asserted that the Board’s no-opt-out policy infringed their right to the free exercise of their religion. See Kennedy v. Bremerton School Dist. (2022). They sought a preliminary and permanent injunction “prohibiting the School Board from forcing their children and other students—over the objection of their parents—to read, listen to, or discuss” the storybooks.

In support of their request, the parents relied heavily on this Court’s decision in Wisconsin v. Yoder. That case concerned Amish parents who wished to withdraw their children from conventional schooling after the eighth grade, in direct contravention of a Wisconsin law requiring children to attend school until the age of 16. In Yoder, we recognized that parents have a right “to direct the religious upbringing of their children,” and that this right can be infringed by laws that pose “a very real threat of undermining” the religious beliefs and practices that parents wish to instill in their children. Given the substantial burdens that Wisconsin’s compulsory-attendance law placed on the religious practices of the Amish, we held that it “carried with it precisely the kind of objective danger to the free exercise of religion that the First Amendment was designed to prevent.”

In the present case, the parents asserted that Yoder’s principle applies to their situation, and they therefore asked for a preliminary injunction permitting their children to opt out of the challenged instruction pending the completion of their lawsuit. The District Court denied that relief. It characterized the petitioners’ primary argument as an objection to school “indoctrination” and asserted that the petitioners had not “identified any case recognizing a free exercise violation based on indoctrination.” It dismissed Yoder as “sui generis” and “inexorably linked to the Amish community’s unique religious beliefs and practices.” And although the District Court acknowledged that the “LGBTQ+-inclusive” curriculum might result in petitioners’ being “less likely to succeed” in raising their children in their religious faiths, it nonetheless held that the curriculum was likely consistent with the Free Exercise Clause.

A divided panel of the Fourth Circuit affirmed. . . . We now hold that the parents have shown that they are entitled to a preliminary injunction and reverse the judgment below.

Our Constitution proclaims that “Congress shall make no law . . . prohibiting the free exercise” of religion. That restriction applies equally to the States by way of the Fourteenth Amendment. Cantwell v. Connecticut (1940). And the right to free exercise, like other First Amendment rights, is not “shed . . . at the schoolhouse gate.” Tinker v. Des Moines Independent Community School Dist.(1969). Government schools, like all government institutions, may not place unconstitutional burdens on religious exercise.

The parents assert that the Board’s introduction of the “LGBTQ+-inclusive” storybooks—combined with its decision to withhold notice and opt outs—unconstitutionally burdens their religious exercise. At this stage, the parents seek a preliminary injunction that would permit them to have their children excused from instruction related to the storybooks while this lawsuit proceeds. To obtain that form of preliminary relief, the parents must show that they are likely to succeed on the merits, that they are likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in their favor, and that an injunction would be in the public interest. The parents have made that showing.

III

To begin, we hold that the parents are likely to succeed on their claim that the Board’s policies unconstitutionally burden their religious exercise. “We have long recognized the rights of parents to direct ‘the religious upbringing’ of their children.” Espinoza v. Montana Dept. of Revenue (2020) (quoting Yoder). And we have held that those rights are violated by government policies that “substantially interfere with the religious development” of children. Such interference, we have observed, “carries with it precisely the kind of objective danger to the free exercise of religion that the First Amendment was designed to prevent.” For the reasons explained below, we conclude that such an “objective danger” is present here.

We start by describing the nature of the religious practice at issue here and explaining why it is burdened by the Board’s policies.

At its heart, the Free Exercise Clause of the First Amendment protects “the ability of those who hold religious beliefs of all kinds to live out their faiths in daily life through the performance of ” religious acts. And for many people of faith across the country, there are few religious acts more important than the religious education of their children. See Our Lady of Guadalupe School v. Morrissey-Berru (2020) (“Religious education is vital to many faiths practiced in the United States”). Indeed, for many Christians, Jews, Muslims, and others, the religious education of children is not merely a preferred practice but rather a religious obligation. The parent petitioners in this case reflect this reality: they all believe they have a “sacred obligation” or “God-given responsibility” to raise their children in a way that is consistent with their religious beliefs and practices.

The practice of educating one’s children in one’s religious beliefs, like all religious acts and practices, receives a generous measure of protection from our Constitution. “Drawing on ‘enduring American tradition,’ we have long recognized the rights of parents to direct ‘the religious upbringing’ of their children.” Espinoza (quoting Yoder). And this is not merely a right to teach religion in the confines of one’s own home. Rather, it extends to the choices that parents wish to make for their children outside the home. It protects, for example, a parent’s decision to send his or her child to a private religious school instead of a public school. Pierce v. Society of Sisters (1925).

Due to financial and other constraints, however, many parents “have no choice but to send their children to a public school.” As a result, the right of parents “to direct the religious upbringing of their” children would be an empty promise if it did not follow those children into the public school classroom. We have thus recognized limits on the government’s ability to interfere with a student’s religious upbringing in a public school setting.

An early example comes from our decision in West Virginia Bd. of Ed. v. Barnette (1943). In that case, we considered a resolution adopted by the West Virginia State Board of Education that required students “to participate in the salute honoring the Nation represented by the flag.” If students failed to comply, they faced expulsion and could not be readmitted until they yielded to the State’s command. A group of plaintiffs sued to prevent the enforcement of this policy against Jehovah’s Witnesses who considered the flag to be a “graven image” and refused to salute it. The challengers asserted that the policy was, among other things, “an unconstitutional denial of religious freedom.”

We agreed that the policy could not be squared with the First Amendment. The effect of the State’s policy, we observed, was to “condition access to public education on making a prescribed sign and profession and at the same time to coerce attendance by punishing both parent and child.” Although the policy did not clearly require students to “forego any contrary convictions of their own and become unwilling converts,” it nonetheless required a particular “affirmation of a belief and an attitude of mind.” For a public school to require students to make such an affirmation, in contravention of their beliefs and those of their parents, was to go further than the First Amendment would allow.

Barnette dealt with an especially egregious kind of direct coercion: a requirement that students make an affirmation contrary to their parents’ religious beliefs. But that does not mean that the protections of the First Amendment extend only to policies that compel children to depart from the religious practices of their parents. To the contrary, in Yoder, we held that the Free Exercise Clause protects against policies that impose more subtle forms of interference with the religious upbringing of children.

Yoder concerned a Wisconsin law that required parents to send their children to public or private school until the age of 16. Respondents Jonas Yoder, Wallace Miller, and Adin Yutzy were members of Wisconsin’s Amish community who refused to send their children to public school after the completion of the eighth grade. In their view, the values taught in high school were “in marked variance with Amish values and the Amish way of life,” and would result in an “impermissible exposure of their children to a ‘worldly’ influence in conflict with their beliefs.” In response, this Court observed that formal high school education would “place Amish children in an environment hostile to Amish beliefs . . . with pressure to conform to the styles, manners, and ways of the peer group” and that it would “take them away from their community, physically and emotionally, during the crucial and formative adolescent period of life.” “In short,” the Court concluded, “high school attendance . . . interposes a serious barrier to the integration of the Amish child into the Amish religious community.”

In Yoder, unlike in Barnette, there was no suggestion that the compulsory-attendance law would compel Amish children to make an affirmation that was contrary to their parents’ or their own religious beliefs. Nor was there a suggestion that Amish children would be compelled to commit some specific practice forbidden by their religion. Rather, the threat to religious exercise was premised on the fact that high school education would “expose Amish children to worldly influences in terms of attitudes, goals, and values contrary to their beliefs” and would “substantially interfere with the religious development of the Amish child.”

That interference, the Court held, violated the parents’ free exercise rights. The compulsory-education law “carried with it precisely the kind of objective danger to the free exercise of religion that the First Amendment was designed to prevent” because it placed Amish children into “an environment hostile to Amish beliefs,” where they would face “pressure to conform” to contrary viewpoints and lifestyles.

As our decision in Yoder reflects, the question whether a law “substantially interferes with the religious development” of a child will always be fact-intensive. It will depend on the specific religious beliefs and practices asserted, as well as the specific nature of the educational requirement or curricular feature at issue. Educational requirements targeted toward very young children, for example, may be analyzed differently from educational requirements for high school students. A court must also consider the specific context in which the instruction or materials at issue are presented. Are they presented in a neutral manner, or are they presented in a manner that is “hostile” to religious viewpoints and designed to impose upon students a “pressure to conform”?

We now turn to the application of these principles to this case.

In light of the record before us, we hold that the Board’s introduction of the “LGBTQ+-inclusive” storybooks—combined with its decision to withhold notice to parents and to forbid opt outs—substantially interferes with the religious development of their children and imposes the kind of burden on religious exercise that Yoder found unacceptable.

To understand why, start with the storybooks themselves. Like many books targeted at young children, the books are unmistakably normative. They are clearly designed to present certain values and beliefs as things to be celebrated and certain contrary values and beliefs as things to be rejected.

Take, for example, the message sent by the books concerning same-sex marriage. Many Americans “advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.” Obergefell v. Hodges (2015). That group includes each of the parents in this case. The storybooks, however, are designed to present the opposite viewpoint to young, impressionable children who are likely to accept without question any moral messages conveyed by their teachers’ instruction.

For example, the book Prince & Knight clearly conveys the message that same-sex marriage should be accepted by all as a cause for celebration. The young reader is guided to feel distressed at the prince’s failure to find a princess, and then to celebrate when the prince meets his male partner. The book relates that “on the two men’s wedding day, the air filled with cheer and laughter, for the prince and his shining knight would live happily ever after.” Those celebrating the same-sex wedding are not just family members and close friends, but the entire kingdom. For young children, to whom this and the other storybooks are targeted, such celebration is liable to be processed as having moral connotations. If this same-sex marriage makes everyone happy and leads to joyous celebration by all, doesn’t that mean it is in every respect a good thing? High school students may understand that widespread approval of a practice does not necessarily mean that everyone should accept it, but very young children are most unlikely to appreciate that fine point.

Uncle Bobby’s Wedding, the only book that the dissent is willing to discuss in any detail, conveys the same message more subtly. The atmosphere is jubilant after Uncle Bobby and his boyfriend announce their engagement. The book’s main character, Chloe, does not share this excitement. “I don’t understand!” she exclaims, “Why is Uncle Bobby getting married?” The book is coy about the precise reason for Chloe’s question, but the question is used to tee up a direct message to young readers: “’Bobby and Jamie love each other,’ said Mummy. ‘When grown-up people love each other that much, sometimes they get married.” The book therefore presents a specific, if subtle, message about marriage. It asserts that two people can get married, regardless of whether they are of the same or the opposite sex, so long as they “love each other.” That view is now accepted by a great many Americans, but it is directly contrary to the religious principles that the parents in this case wish to instill in their children.

It is significant that this book does not simply refer to same-sex marriage as an existing practice. Instead, it presents acceptance of same-sex marriage as a perspective that should be celebrated. The book’s narrative arc reaches its peak with the actual event of Uncle Bobby’s wedding, which is presented as a joyous event that is met with universal approval. And again, there are many Americans who would view the event that way, and it goes without saying that they have every right to do so. But other Americans wish to present a different moral message to their children. And their ability to present that message is undermined when the exact opposite message is positively reinforced in the public school classroom at a very young age.

Next, consider the messages sent by the storybooks on the subject of sex and gender. Many Americans, like the parents in this case, believe that biological sex reflects divine creation, that sex and gender are inseparable, and that children should be encouraged to accept their sex and to live accordingly. But the challenged storybooks encourage children to adopt a contrary viewpoint. Intersection Allies presents a transgender child in a sex-ambiguous bathroom and proclaims that “a bathroom, like all rooms, should be a safe space.” The book also includes a discussion guide that asserts that “at any point in our lives, we can choose to identify with one gender, multiple genders, or neither gender” and asks children “What pronouns fit you best?” (boldface in original). The book and the accompanying discussion guidance present as a settled matter a hotly contested view of sex and gender that sharply conflicts with the religious beliefs that the parents wish to instill in their children.

The book Born Ready presents similar ideas in an even less veiled manner. The book follows the story of Penelope, an apparently biological female who asserts “I AM a boy.” Not only does the story convey the message that Penelope is a boy simply because that is what she chooses to be, but it slyly conveys a positive message about transgender medical procedures. Penelope says the following to her mother.

“I love you, Mama, but I don’t want to be you. I want to be Papa. I don’t want tomorrow to come because tomorrow I’ll look like you. Please help me, Mama. Help me to be a boy.”

Penelope’s mother then agrees that Penelope is a boy, and Penelope exclaims: “For the first time, my insides don’t feel like fire. They feel like warm, golden love.” To young children, the moral implication of the story is that it is seriously harmful to deny a gender transition and that transitioning is a highly positive experience. The book goes so far as to present a contrary view as something to be reprimanded. When the main character’s brother says “You can’t become a boy. You have to be born one,” his mother corrects him by saying: “Not everything needs to make sense. This is about love.” (emphasis in original). The upshot is that it is hurtful, perhaps even hateful, to hold the view that gender is inextricably bound with biological sex.

These books carry with them “a very real threat of undermining” the religious beliefs that the parents wish to instill in their children. Yoder. Like the compulsory high school education considered in Yoder, these books impose upon children a set of values and beliefs that are “hostile” to their parents’ religious beliefs. And the books exert upon children a psychological “pressure to conform” to their specific viewpoints. The books therefore present the same kind of “objective danger to the free exercise of religion” that we identified in Yoder. That “objective danger” is only exacerbated by the fact that the books will be presented to young children by authority figures in elementary school classrooms. . . .

In other contexts, we have recognized the potentially coercive nature of classroom instruction of this kind. “The State exerts great authority and coercive power through” public schools “because of the students’ emulation of teachers as role models and the children’s susceptibility to peer pressure.” Edwards v. Aguillard (1987); see also Lee v. Weisman (1992) (“There are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools”). Young children, like those of petitioners, are often “impressionable” and “implicitly trust” their teachers. [Footnote 8: The dissent tries to divert attention from the ages of the children subject to the instruction at issue here. It sees no difference between petitioners’ young children and the high school students in Kennedy v. Bremerton School Dist. (2022). And it criticizes our decision for taking the age of students into account. It goes without saying, however, that the age of the children involved is highly relevant in any assessment of the likely effect of instruction on the subjects in question.] Here, the Board requires teachers to instruct young children using storybooks that explicitly contradict their parents’ religious views, and it encourages the teachers to correct the children and accuse them of being “hurtful” when they express a degree of religious confusion. Such instruction “carries with it precisely the kind of objective danger to the free exercise of religion that the First Amendment was designed to prevent.” Yoder.

None of the counterarguments raised by the dissent, the Board, the courts below, or the Board’s amici give us any reason to doubt the existence of a burden here.

To start, we cannot accept the Board’s characterization of the “LGBTQ+-inclusive” instruction as mere “exposure to objectionable ideas” or as lessons in “mutual respect.” As we have explained, the storybooks unmistakably convey a particular viewpoint about same-sex marriage and gender. And the Board has specifically encouraged teachers to reinforce this viewpoint and to reprimand any children who disagree. That goes far beyond mere “exposure.”

We similarly disagree with the dissent’s deliberately blinkered view that these storybooks and related instruction merely “expos[e] students to the ‘message’ that LGBTQ people exist” and teach them to treat others with kindness. In making this argument, the dissent ignores what anyone who reads these books can readily see. It ignores the messages that the authors plainly intended to convey. And, what is perhaps most telling, it ignores the Board’s stated reasons for inserting these books into the curriculum and much of the instructions it gave to teachers. Only by air-brushing the record can the dissent claim that the books and instruction are just about exposure and kindness.

In any event, the Board and the dissent are mistaken when they rely extensively on the concept of “exposure.” The question in cases of this kind is whether the educational requirement or curriculum at issue would “substantially interfere with the religious development” of the child or pose “a very real threat of undermining” the religious beliefs and practices the parent wishes to instill in the child. Yoder. Whether or not a requirement or curriculum could be characterized as “exposure” is not the touchstone for determining whether that line is crossed.

We are also unpersuaded by the Board’s reliance—echoed by the dissent—on our decisions in Bowen v. Roy (1986), and Lyng v. Northwest Indian Cemetery Protective Assn. (1988). In Bowen, a father mounted a free exercise challenge to the Government’s use of a Social Security number associated with his daughter. And in Lyng, Native Americans and other plaintiffs raised a free exercise challenge to the construction of a paved road on federal land. In those cases, we held that “the Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens,” Bowen, even when the conduct of such internal affairs might result in “incidental interference with an individual’s spiritual activities,” Lyng. And, we emphasized, that conclusion was appropriate because the government actions at issue did not “discriminate” against religion or “coerce individuals into acting contrary to their religious beliefs.”

These cases have no application here. The government’s operation of the public schools is not a matter of “internal affairs” akin to the administration of Social Security or the selection of “filing cabinets.” It implicates direct, coercive interactions between the State and its young residents. The public school imposes rules and standards of conduct on its students and holds a limited power to discipline them for misconduct. If questions of public school curriculum were purely a matter of internal affairs, one could imagine that other First Amendment protections—such as the right to free speech or the right to be free from established religion—would also be inapplicable in the public school context. But our precedents plainly provide otherwise.

Next, we cannot agree with the decision of the lower courts to dismiss our holding in Yoder out of hand. Although the decision turned on a close analysis of the facts in the record, there is no reason to conclude that the decision is “sui generis” or uniquely “tailored to its specific evidence,” as the courts below reasoned. 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. See, e.g., Espinoza; Employment Div., Dept. of Human Resources of Ore. v. Smith (1990). And we have distinguished it when appropriate. See, e.g., Lyng.

True, we noted in Yoder that the Amish had made a “convincing showing, one that probably few other religious groups or sects could make.” But that language must be read in the context of the specific claims raised by the Amish respondents. They did not challenge a discrete educational requirement or element of the curriculum, like the plaintiffs in Barnette. Instead, they asserted a right to withdraw their children from all conventional schooling after a certain age. Such a claim required them to show that the practice of formal education after the eighth grade would substantially and systemically interfere with the religious development of their children. It was on that point that they had made a “convincing showing” that others might struggle to make. But that says nothing at all about whether other parents could make the same convincing showing with respect to more specific educational requirements. Yoder is an important precedent of this Court, and it cannot be breezily dismissed as a special exception granted to one particular religious minority.

It instead embodies a principle of general applicability, and that principle provides more robust protection for religious liberty than the alarmingly narrow rule that the dissent propounds. The dissent sees the Free Exercise Clause’s guarantee as nothing more than protection against compulsion or coercion to renounce or abandon one’s religion. Under this test, even instruction that denigrates or ridicules students’ religious beliefs would apparently be allowed. [Footnote 9: In a footnote, the dissent retreats and suggests that denigration and ridicule could amount to prohibited “coercion” [citing footnote 6 of Justice Sotomayor’s dissent]. But this concession is either meaningless or undermines the dissent’s entire argument. The primary definition of “coercion” is little different from compulsion. If that is what the dissent means by “coercion,” then it is unclear why ridicule or denigration would qualify as coercion under its test. By contrast, if the dissent defines “coercion” to require less, then it has failed to explain why our understanding of what the Clause protects is flawed.] We reject this chilling vision of the power of the state to strip away the critical right of parents to guide the religious development of their children. Yoder and Barnette embody a very different view of religious liberty, one that comports with the fundamental values of the American people.

[I have omitted the majority’s brief critique of the Fourth Circuit’s characterization of the record.]

Finally, we reject the alternatives offered to parents by those who would defend the judgment below. The first of those proposed alternatives is the suggestion that any parents who are unhappy about the instruction in question can simply “place their children in private school or . . . educate them at home.” The availability of this option is no answer to the parents’ First Amendment objections. As we have previously held, when the government chooses to provide public benefits, it may not “condition the availability of [those] benefits upon a recipient’s willingness to surrender his religiously impelled status.” Trinity Lutheran Church of Columbia, Inc. v. Comer (2017). That is what the Board has done here. Public education is a public benefit, and the government cannot “condition” its “availability” on parents’ willingness to accept a burden on their religious exercise. Moreover, since education is compulsory in Maryland, the parents are not being asked simply to forgo a public benefit. They have an obligation—enforceable by fine or imprisonment—to send their children to public school unless they find an adequate substitute. And many parents cannot afford such a substitute. . . .

[The dissent] suggests that the parents in this case have no legitimate cause for concern because enforcement of the Board’s policy would not prevent them from “teach[ing] their religious beliefs and practices to their children at home.” This suggestion complements the dissent’s narrow view of the right of parents to raise their children in accordance with their faith. According to the dissent, parents who send their children to public school must endure any instruction that falls short of direct compulsion or coercion and must try to counteract that teaching at home. The Free Exercise Clause is not so feeble. The parents in Barnette and Yoder were similarly capable of teaching their religious values “at home,” but that made no difference to the First Amendment analysis in those cases.

Mustering one last alternative, the dissent asserts that, under its approach, the parents would “remain free to raise objections to specific material through the” democratic process. In making this argument, the dissent seems to confuse our country with those in which laws enacted by a parliament or another legislative body cannot be challenged in court. In this country, that is not so. Here, the Bill of Rights and the doctrine of judicial review protect individuals who cannot obtain legislative change. The First Amendment protects the parents’ religious liberty, and they had every right to file suit to protect that right.

For these reasons, we conclude that the Board’s introduction of the “LGBTQ+-inclusive” storybooks, combined with its no-opt-out policy, burdens the parents’ right to the free exercise of religion. We now turn to the question whether that burden is constitutionally permitted.

Under our precedents, the government is generally free to place incidental burdens on religious exercise so long as it does so pursuant to a neutral policy that is generally applicable. Smith. Thus, in most circumstances, two questions remain after a burden on religious exercise is found. First, a court must ask if the burdensome policy is neutral and generally applicable. Second, if the first question can be answered in the negative, a court will proceed to ask whether the policy can survive strict scrutiny. Under that standard, the government must demonstrate that “its course was justified by a compelling state interest and was narrowly tailored in pursuit of that interest.” Kennedy

Here, the character of the burden requires us to proceed differently. When the burden imposed is of the same character as that imposed in Yoder, we need not ask whether the law at issue is neutral or generally applicable before proceeding to strict scrutiny. That much is clear from our decisions in Yoder and Smith.

In Yoder, the Court rejected the contention that the case could be “disposed of on the grounds that Wisconsin’s requirement . . . applies uniformly to all citizens of the State and does not, on its face, discriminate against religions or a particular religion.” Instead, the Court bypassed those issues and proceeded to subject the law to close judicial scrutiny, asking whether the State’s interest “in its system of compulsory education [was] so compelling that even the established religious practices of the Amish must give way.”

Then, in Smith, we recognized Yoder as an exception to the general rule that governments may burden religious exercise pursuant to neutral and generally applicable laws. Specifically, we described Yoder as a case “in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action.” And we explained that the general rule did not apply in Yoder because of the special character of the burden in that case. Thus, when a law imposes a burden of the same character as that in Yoder, strict scrutiny is appropriate regardless of whether the law is neutral or generally applicable. [Footnote 14: “In Smith, the Court speculated that the general rule was not applied in Yoder because it “involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections.” We need not consider whether the case before us qualifies as such a “hybrid rights” case. Rather, it is sufficient to note that the burden imposed here is of the exact same character as that in Yoder. That is enough to conclude that here, as in Yoder, strict scrutiny is appropriate regardless of whether the policy is neutral and generally applicable. . . .]

As we have explained, the burden in this case is of the exact same character as the burden in Yoder. The Board’s policies, like the compulsory-attendance requirement in Yoder, “substantially interfere with the religious development” of the parents’ children. And those policies pose “a very real threat of undermining” the religious beliefs and practices that the parents wish to instill in their children. We therefore proceed to consider whether the policies can survive strict scrutiny.

To survive strict scrutiny, a government must demonstrate that its policy “advances ‘interests of the highest order’ and is narrowly tailored to achieve those interests.” Fulton v. Philadelphia (2021) (quoting Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993)). In its filings before us, the Board asserts that its curriculum and no-opt-out policy serve its compelling interest in “maintaining a school environment that is safe and conducive to learning for all students.” It relies on the statements of an MCPS official who testified that permitting opt outs would result in “significant disruptions to the classroom environment” and would expose certain students to “social stigma and isolation.”

We do not doubt that, as a general matter, schools have a “compelling interest in having an undisrupted school session conducive to the students’ learning.” But the Board’s conduct undermines its assertion that its no-opt-out policy is necessary to serve that interest. As we have noted, the Board continues to permit opt outs in a variety of other circumstances, including for “noncurricular” activities and the “Family Life and Human Sexuality” unit of instruction, for which opt outs are required under Maryland law. And the Board goes to great lengths to provide independent, parallel programming for many other students, such as those who qualify as emergent multilingual learners (EMLs) or who qualify for an individualized educational program. [Footnote 15: As of September 30, 2023, 24.6% of Montgomery County elementary school students qualified as EMLs. . . .] This robust “system of exceptions” undermines the Board’s contention that the provision of opt outs to religious parents would be infeasible or unworkable. Fulton.

The Board’s attempt to distinguish the other programs for which it provides opt outs is unconvincing. The Board asserts that the “Family Life and Human Sexuality” unit of instruction is meaningfully different because it is “discrete” and “predictably timed,” and therefore schools can accommodate opt outs without producing the same “absenteeism and administrability concerns.” But this assertion only tends to show that the Board’s concerns about “administrability” are a product of its own design. If the Board can structure the “Family Life and Human Sexuality” curriculum to more easily accommodate opt outs, it could structure instruction concerning the “LGBTQ+-inclusive” storybooks similarly. The Board cannot escape its obligation to honor parents’ free exercise rights by deliberately designing its curriculum to make parental opt outs more cumbersome.

The Board also suggests that permitting opt outs from the “LGBTQ+-inclusive” storybooks would be especially unworkable because, when it permitted such opt outs in the past, they resulted in “unsustainably high numbers of absent students.” But again, the Board’s concern is self-inflicted. The Board is doubtless aware of the presence in Montgomery County of substantial religious communities whose members hold traditional views on marriage, sex, and gender. When it comes to instruction that would burden the religious exercise of parents, the Board cannot escape its obligations under the Free Exercise Clause by crafting a curriculum that is so burdensome that a substantial number of parents elect to opt out. There is no de maximis exception to the Free Exercise Clause.

Nor can the Board’s policies be justified by its asserted interest in protecting students from “social stigma and isolation.” In Maryland, the “Family Life and Human Sexuality” unit of instruction includes discussions about sexuality and gender. Yet the Board has not suggested that the legally-required provision of opt outs from that curriculum has resulted in stigma or isolation. Even if it did, the Board cannot purport to rescue one group of students from stigma and isolation by stigmatizing and isolating another. A classroom environment that is welcoming to all students is something to be commended, but such an environment cannot be achieved through hostility toward the religious beliefs of students and their parents.

We acknowledge that “courts are not school boards or legislatures, and are ill-equipped to determine the ‘necessity’ of discrete aspects of a State’s program of compulsory education.” Yoder. It must be emphasized that what the parents seek here is not the right to micromanage the public school curriculum, but rather to have their children opt out of a particular educational requirement that burdens their well-established right “to direct ‘the religious upbringing’ of their children.” Espinoza (quoting Yoder). We express no view on the educational value of the Board’s proposed curriculum, other than to state that it places an unconstitutional burden on the parents’ religious exercise if it is imposed with no opportunity for opt outs. Providing such an opportunity would give the parents no substantive control over the curriculum itself.

Several States across the country permit broad opt outs from discrete aspects of the public school curriculum without widespread consequences. And prior to the introduction of the “LGBTQ+-inclusive” storybooks, the Board’s own “Guidelines for Respecting Religious Diversity” gave parents a broad right to have their children excused from specific aspects of the school curriculum. These facts belie any suggestion that the provision of parental opt outs in circumstances like these “will impose impossible administrative burdens on schools.” (Sotomayor, J., dissenting).

The Board’s introduction of the “LGBTQ+-inclusive” storybooks, along with its decision to withhold opt outs, places an unconstitutional burden on the parents’ rights to the free exercise of their religion. The parents have therefore shown that they are likely to succeed in their free exercise claims. They have likewise shown entitlement to a preliminary injunction pending the completion of this lawsuit. In the absence of an injunction, the parents will continue to be put to a choice: either risk their child’s exposure to burdensome instruction, or pay substantial sums for alternative educational services. As we have explained, that choice unconstitutionally burdens the parents’ religious exercise, and “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Roman Catholic Diocese of Brooklyn v. Cuomo (2020) (per curiam). Furthermore, in light of the strong showing made by the parents here, and the lack of a compelling interest supporting the Board’s policies, an injunction is both equitable and in the public interest. . . .

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

Justice Thomas, concurring.

. . . The Court correctly holds that the policy contravenes the parents’ free exercise right to direct the religious upbringing of their children, 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.

As the Court today holds, the Board’s policy is incompatible with this Court’s decision in Wisconsin v. Yoder. 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. 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.”

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 “less than 60 years ago,” yet the Amish had a track record of “successful social functioning . . . approaching almost three centuries.” 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.” Thus, for the Amish, education past the eighth grade was demonstrably inessential to “meeting the duties of citizenship.”

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. . . .

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 “meet the duties of citizenship”—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.” They are devout Christians and Muslims. 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.” . . .

Justice Sotomayor, with whom Justice Kagan and Justice Jackson join, dissenting.

Public schools, this Court has said, are “at once the symbol of our democracy and the most pervasive means for promoting our common destiny.” Edwards v. Aguillard (1987). They offer to children of all faiths and backgrounds an education and an opportunity to practice living in our multicultural society. That experience is critical to our Nation’s civic vitality. Yet it will become a mere memory if children must be insulated from exposure to ideas and concepts that may conflict with their parents’ religious beliefs.

Today’s ruling ushers in that new reality. Casting aside longstanding precedent, the Court invents a constitutional right to avoid exposure to “subtle” themes “contrary to the religious principles” that parents wish to instill in their children. Exposing students to the “message” that LGBTQ people exist, and that their loved ones may celebrate their marriages and life events, the majority says, is enough to trigger the most demanding form of judicial scrutiny. That novel rule is squarely foreclosed by our precedent and offers no limiting principle. Given the great diversity of religious beliefs in this country, countless interactions that occur every day in public schools might expose children to messages that conflict with a parent’s religious beliefs. If that is sufficient to trigger strict scrutiny, then little is not.

The result will be chaos for this Nation’s public schools. Requiring schools to provide advance notice and the chance to opt out of every lesson plan or story time that might implicate a parent’s religious beliefs will impose impossible administrative burdens on schools. The harm will not be borne by educators alone: Children will suffer too. Classroom disruptions and absences may well inflict long-lasting harm on students’ learning and development.

Worse yet, the majority closes its eyes to the inevitable chilling effects of its ruling. Many school districts, and particularly the most resource strapped, cannot afford to engage in costly litigation over opt-out rights or to divert resources to tracking and managing student absences. Schools may instead censor their curricula, stripping material that risks generating religious objections. The Court’s ruling, in effect, thus hands a subset of parents the right to veto curricular choices long left to locally elected school boards. Because I cannot countenance the Court’s contortion of our precedent and the untold harms that will follow, I dissent.

By the majority’s telling, the Montgomery County Public School Board (Board) has undertaken an intentional campaign to “impose upon children a set of values and beliefs that are ‘hostile’ to their parents’ religious” principles. The Court draws on excerpts from Board documents and statements, shorn from context, that it claims reflect that intent. The full record reveals a starkly different reality.

In the years leading up to the present dispute, the Board determined that the books in its English language curriculum failed to represent many students and families in the county. The Board has long been committed to promoting a “fully inclusive environment for all students” by using instructional materials that “reflect [the] diversity of the global community,” including “persons with disabilities, persons from diverse racial, ethnic, and cultural backgrounds, as well as persons of diverse gender identity, gender expression, or sexual orientation.” Yet certain perspectives, the Board concluded, were absent from its English language curriculum. The Board, for instance, determined that some “races and cultures” were not adequately reflected. In response, it added books like The Leavers, which tells the story of an Asian-American immigrant family, and the March trilogy, which recounts the life of civil rights leader John Lewis.

The Board found that LGBTQ children and families were similarly underrepresented in its English language curriculum. The books taught in English classes simply “did not include LGBTQ characters.” To fill that gap, the Board worked with a committee of specialists to identify LGBTQ-inclusive books that it could incorporate into the existing curriculum. After a years-long process, the Board announced in October 2022 that it would add several new books into the elementary school English language curriculum, five of which are at issue in this case (collectively, the Storybooks).

Uncle Bobby’s Wedding tells the story of a young girl named Chloe and her “favourite uncle.” Chloe loves spending time with her Uncle Bobby, and the two often go on adventures, like boating trips and stargazing outings. One day, during a family picnic, Uncle Bobby announces that he is engaged to his friend, Jamie. The announcement is met with much excitement, and the whole family is “smiling and talking and crying and laughing.” Chloe, however, is apprehensive. She tells her uncle she “doesn’t think he should get married” because she “wants them to keep having fun together like always.” Uncle Bobby promises that they will “still have fun together,” and he and Jamie take Chloe on trips to the ballet, to the beach, and out camping. Chloe’s excitement for the wedding grows, and on the day of the ceremony, she “was so happy, she felt like doing a cartwheel” down the aisle. The story ends with everyone dancing happily at the wedding under the light of the moon.

Because the majority selectively excerpts the book in order to rewrite its story, readers are encouraged to go directly to the source, reproduced below.

The remaining books play on similar themes. Prince & Knight tells the story of a prince who falls in love with a young knight after the knight helps him defeat a fearsome dragon. Love, Violet describes a shy girl who has a crush on her classmate, Mira and eventually gives her a Valentine’s Day card that says “For Mira, Love, Violet.”

Other books introduce readers to children from different backgrounds and identities. Intersection Allies features eight different characters, each with their own unique attributes. Alejandra, for instance, uses a wheelchair that allows her to “zzzip glide and play,” while Kate prefers “superhero capes” over “skirts and frills” and is pictured in a gender-neutral bathroom. Born Ready: The True Story of a Boy Named Penelope tells the story of a child who likes skateboarding, “baggy blue jeans, button-front shirts, math, science, and getting straight A’s,” and “most of all” wants a “Mohawk haircut.” When Penelope tells his mother that he is a boy, she accepts him: “However you feel is fine, baby,” she says. When Penelope’s brother expresses skepticism, his mother says, “Not everything needs to make sense. This is about love.” (emphasis in original).

The five Storybooks introduce readers to LGBTQ characters, but they draw on many of the themes common to children’s books. Indeed, Montgomery County Public Schools (MCPS) libraries are replete with children’s books that tell similar stories about overcoming differences, fairytale romances, and celebrating big milestones like weddings.

The Board directed the schools to use the new books in the same manner as all other books in the English language program, namely, to “assist students with mastering reading concepts like answering questions about characters, retelling key events about characters in a story, and drawing inferences about story characters based on their actions.” The Board made clear to individual schools that “there is no planned explicit instruction on gender identity and sexual orientation in elementary school,” using the Storybooks or otherwise. The Board’s policies, moreover, mandate that “no student or adult will be asked to change how they feel about” issues of “gender identity and sexual orientation,” and that, “if a child does not agree with or understand another student’s gender identity or expression or their sexuality . . . , they do not have to change how they feel about it.”

Before MCPS introduced the books into classrooms, the Board provided guidance to teachers on how to respond to student questions and commentary regarding the books. The guidance focuses on encouraging mutual tolerance and “respect” for all those in the community. To take one example, if a child says that “being gay, lesbian, queer, etc. is wrong and not allowed in her religion,” the guidance suggests that a teacher could respond by saying:

“I understand that is what you believe, but not everyone believes that. We don’t have to understand or support a person’s identity to treat them with respect and kindness. School is a place where we learn to work together regardless of our differences. In any community, we’ll always find people with beliefs different from our own and that is okay—we can still show them respect.”

The guidance also directs teachers to discourage the use of language that could be hurtful to students in the class. If a student says, “That’s so gay,” for instance, the guidance suggests a teacher may respond by saying: “Regardless of how it’s intended, using gay to describe something negative reflects a long history of prejudice against LGBTQ+ people, so please don’t use it in that way.” During the first year of the Storybooks’ inclusion in the English language program, MCPS permitted parents, through agreements with individual schools, to opt their children out of lessons that featured the books. Parents began making individualized opt-out requests. Although some of the requests were religious in nature, many were not.

In March 2023, the Board met with a “small group of principals” and learned that teachers could not accommodate the opt-out requests “without causing significant disruptions to the classroom environment and undermining MCPS’s educational mission.” The Board also worried that permitting some students to leave the classroom whenever a teacher brought out books featuring LGBTQ characters could expose LGBTQ students (and those with LGBTQ parents) to social stigma and isolation. MCPS therefore announced it would no longer permit parents to opt out of instruction using the Storybooks. . . .

II.A

The Free Exercise Clause commands that the government “shall make no law . . . prohibiting the free exercise” of religion. “The crucial word in the constitutional text is ‘prohibit,’” for it makes clear “the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.” Lyng.

It follows from the text that the Free Exercise Clause does not “require the Government itself to behave in ways that the individual believes will further his or her spiritual development or that of his or her family.” Bowen v. Roy (1986) (emphasis in original). Instead, the Clause prohibits the government from compelling individuals, whether directly or indirectly, to give up or violate their religious beliefs. See, e.g., Wisconsin v. Yoder (1972) (Free Exercise Clause forbids “affirmatively compel[ling]” individuals “to perform acts undeniably at odds with fundamental tenets of their religious beliefs”); School Dist. of Abington Township v. Schempp(1963) (“[I]t is necessary in a free exercise case for one to show the coercive effect of the enactment as it operates against him in the practice of his religion”); Bowen (“The Free Exercise Clause affords an individual protection from certain forms of governmental compulsion . . . ”); Lyng (Free Exercise Clause prohibits laws that have a “tendency to coerce individuals into acting contrary to their religious beliefs”); Trinity Lutheran Church of Columbia, Inc. v. Comer (2017) (“[T]he Free Exercise Clause protects against ‘indirect coercion . . . ’ ”); Carson v. Makin (2022) (same).

Consistent with these longstanding principles, this Court has made clear that mere exposure to objectionable ideas does not give rise to a free exercise claim. That makes sense: Simply being exposed to beliefs contrary to your own does not “prohibit” the “free exercise” of your religion. Nor does mere “offense . . . equate to coercion.” Kennedy v. Bremerton School Dist. (2022) (quoting Town of Greece v. Galloway (2014). The Constitution thus does not “guarantee citizens a right entirely to avoid ideas with which they disagree.” Indeed, “it would betray its own principles if it did,” for “no robust democracy insulates its citizens from views that they might find novel or even inflammatory.” Elk Grove Unified School Dist. v. Newdow (2004) (O’Connor, J., concurring in judgment).

There is no public school exception to these principles. This Court’s decision in West Virginia Bd. of Ed. v. Barnette (1943), is instructive. There, the Court held that “compelling” students who adhere to the Jehovah’s Witnesses faith to salute the flag, in contravention of their religious beliefs, violated the First Amendment. Yet the Court distinguished the “compulsion of students to declare a belief ” from simply exposing students to ideas that might conflict with their religious tenets. For instance, the Court recognized that schools could “acquaint students with the flag salute so that they may be informed as to what it is or even what it means.” No problem arose, either, the Court observed, from having objecting students “remain passive during a flag salute ritual,” while watching the rest of the class engage in it. What the State could not do, however, is “compel the flag salute and pledge,” when those actions required students to “declare a belief ” contrary to their own religious views.

So too, in Kennedy v. Bremerton School Dist., the Court recognized that seeing objectionable conduct alone is not actionable under the First Amendment. There, the Court rejected the argument that the exposure of children to a school coach’s religious prayer violated the Establishment Clause. Even though hearing and watching an authority figure engage in a denominational prayer with classmates at a school-sponsored event could, of course, undermine parents’ efforts to instill different religious beliefs in their children, a majority of this Court concluded that no cognizable “coercion” had occurred, and so no Establishment Clause violation inhered in the coach’s conduct. [Footnote 4: The Court misconstrued the record in that case, and thus erred in deciding that the coach’s prayer ritual was not coercive. See Kennedy (Sotomayor, J., dissenting). Taking the majority’s recitation of the facts at face value, however, the Court plainly viewed exposure to the aforementioned activities as insufficient to raise First Amendment concerns, notwithstanding their apparent potential to undermine a parent’s religious upbringing of their child.] In sum, never, in the context of public schools or elsewhere, has this Court held that mere exposure to concepts inconsistent with one’s religious beliefs could give rise to a First Amendment claim.

These well-established principles, previously recognized and respected by this Court, resolve this case. As recounted earlier, each of the three sets of parent-plaintiffs premised their objections on, in essence, “exposure” to material that conflicts with their religious beliefs. Yet for the reasons just explained, the effects of mere exposure to material with which one disagrees does not and should not give rise to a free exercise claim.

Nor have petitioners shown that MCPS’s policies coerced them to give up or violate their religious beliefs. To the contrary, MCPS explicitly prohibits teachers from asking students to give up or change their views regarding gender and sexuality, whether religious or not. The parents have proffered no evidence of teachers acting contrary to that policy.

Recall, too, that MCPS exclusively uses the challenged Storybooks to teach students literacy in English language class. Like all other books in the English language curriculum, the Storybooks will be used to “assist students with mastering reading concepts like answering questions about characters, retelling key events about characters in a story, and drawing inferences about story characters based on their actions.” As for integrating the books into classes, teachers may opt “to put them on a shelf for students to find on their own; to recommend a book to a student who would enjoy it; to offer the books as an option for literature circles, book clubs, or paired reading groups; or to use them as a read aloud.” It is possible, of course, that such instruction may introduce students to concepts or views objectionable to their faiths. Being “merely made acquainted with” these themes, however, does not give rise to a cognizable free exercise burden. Barnette.

III

Rather than follow this Court’s unambiguous precedent, the majority rescues petitioners’ exposure theory by simply renaming it. Petitioners’ free exercise rights are burdened by the Storybooks, the majority claims, because they “carry with them ‘a very real threat of undermining’ the religious beliefs that the parents wish to instill in their children.” In other words, reading books like Uncle Bobby’s Wedding is sufficient, in the majority’s view, because of the “threat” those books pose to the religious upbringing of petitioners’ children. That is simply exposure by another name.

From where does the majority derive its novel “threat” test? Yoder, the majority claims, established it over half a century ago, unbeknownst to any court of appeals in the Nation (and until today, this Court as well).

The flaws in the majority’s reasoning are legion. The Court’s reading of Yoder is not simply incorrect; it is definitively foreclosed by precedent. The majority’s novel test, moreover, imposes no meaningful limits on the types of school decisions subject to strict scrutiny, as the Court’s own application of its test confirms. Today’s ruling thus promises to wreak havoc on our Nation’s public schools and the courts tasked with resolving this new font of litigation.

A.1

Start with the majority’s misreading of Yoder. According to the Court, Yoder held that the government violates the “rights of parents to direct the religious upbringing of their children” whenever a government policy “poses a very real threat of undermining the religious beliefs and practices that the parents wish to instill.” That is incorrect.

Yoder addressed a First Amendment challenge to Wisconsin’s “compulsory-attendance law” for high school students. The law compelled parents to send their children to public school or an equivalent until age 16, and imposed criminal penalties on violators. A group of Amish parents punished under the law argued that their convictions violated the Free Exercise Clause because “their children’s attendance at high school, public or private, was contrary to the Amish religion and way of life.”

This Court agreed. Wisconsin’s law violated the Free Exercise Clause because it “affirmatively compelled” the parents, “under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs.” “Formal high school education beyond eighth grade,” the Court explained, foreclosed Amish religious practice by “taking children away from their community” at a time when they “must acquire the specific skills needed to perform the adult role of an Amish farmer or housewife.” Sending their children to school during that “crucial” time would accordingly require the Amish parents to “abandon” their faith.

Yoder thus does not support the proposition that any government policy that poses a “very real threat” to a parent’s religious development of their child triggers strict scrutiny. The problem in Yoder was not that the law exposed children to material that would incidentally “undermine” religious beliefs, but that it compelled Amish parents to do what their religion forbade: send their children away rather than integrate them into the Amish community at home.

If there were any doubt, this Court already rejected the majority’s flawed reading of Yoder in Lyng. There, a group of Native Americans brought a free exercise challenge to the construction of a federal road through an area that the group used “to conduct a wide variety of specific rituals.” This Court rejected the plaintiffs’ claim. Although “the challenged Government action would interfere significantly with private persons’ ability to pursue spiritual fulfillment according to their own religious beliefs,” the Court reasoned, the affected individuals would not be “coerced by the Government’s action into violating their religious beliefs.” Accordingly, the Court held that the plaintiffs had failed to make out a cognizable free exercise claim. . . .

The majority relegates its discussion of Bowen and Lyng to a few sentences, claiming that those cases involved “internal affairs” of Government. The majority, however, articulates no coherent line between the “internal affairs” that the Court deemed nonactionable in those two cases and the external effects of government decisions that the majority announces are actionable here.

In Bowen, the entire premise of the father’s claim was that the Government’s internal choices about how to operate its program would have external effects on his right to direct the religious development of his child: The father averred that the Government’s use of his child’s Social Security number would irrevocably destroy his child’s “spirit,” and thus his ability to protect her spiritual development. Here, by the majority’s own telling, the parents make the same type of claim. They argue that the schools’ use of the Storybooks will harm their ability to direct their children’s religious development. The underlying theories are indistinguishable.

The incoherence of the majority’s “internal affairs” theory comes into even sharper focus as applied to the Court’s decision in Lyng. There, the Court acknowledged that the Government’s construction of the road would “physically destroy the environmental conditions and the privacy without which the religious practices cannot be conducted.” Yet the majority today recasts the decision to build a road through sacred land as a purely “internal affair” of the Government, thereby rendering Lyng inapposite. Implausible as that assertion may be, it is the majority’s only maneuver around Bowen and Lyng. In short, the Court’s novel “threat” test flouts settled precedent, and the majority’s contrary claim is illogical.

That is only the beginning of the majority’s errors. Turn, next, to the Court’s articulation of what, exactly, the “very real threat” is that triggers the most demanding level of judicial review. The majority declares the inquiry will turn on several context clues: the “specific religious beliefs and practices asserted,” the “specific nature of the educational requirement or curricular feature at issue,” the age of the children, and the context and manner in which the relevant materials “are presented.” On that last point, the majority adds, courts should ask whether the materials are “presented in a neutral manner” or “in a manner that is ‘hostile’ to religious viewpoints and designed to impose upon students a ‘pressure to conform.’”

That test lacks any meaningful limit. Consider what the majority deems intolerably “hostile” to religious views. Uncle Bobby’s Wedding, the Court asserts, contains a “subtle” “normative” message about marriage that is “contrary to the religious principles that the parents in this case wish to instill in their children”: that “two people can get married, regardless of whether they are of the same or the opposite sex, so long as they love each other.” According to the Court, that message is apparent in the “jubilant” reactions of Uncle Bobby’s family to his engagement announcement and a statement by the protagonist’s mother that, “when grown-up people love each other that much, sometimes they get married.”

With those snippets in hand, the majority concludes that Uncle Bobby’s Wedding is akin to “the compulsory high school education law considered in Yoder.” Reading the book aloud in elementary class, the majority claims, “imposes upon children a set of values and beliefs that are ‘hostile’ to their parents’ religious views” and “exerts upon children a psychological pressure to conform” to the view that families can be happy about same-sex weddings. That is apparently enough, in the majority’s view, to create a cognizable free exercise burden, for the Court ultimately prohibits use of the Storybooks “or any other similar book” “in any way” absent an opt-out right.

Even if Yoder had established some form of “threat” test, the majority’s application of it in this case would expand it beyond recognition. The Court in Yoder detailed, at length, the record evidence that compulsory high school attendance would “result in the destruction of the Old Order Amish church community as it existed in the United States.” Compelled attendance effectively barred “integration of the Amish child into the Amish religious community,” such that, under Wisconsin’s law, the petitioners in Yoder were forced “either to abandon belief and be assimilated into society at large, or . . . to migrate to some other and more tolerant region,” Yoder thus set an exceedingly high bar for future plaintiffs to clear. Indeed, the Court in Yoder explicitly predicted that “few other religious groups” could make the showing that the Amish parents in that case had.

Yet, in the majority’s eyes, reading aloud Uncle Bobby’s Wedding is just “like the compulsory high school education considered in Yoder.” That assertion is remarkable. Reading a storybook that portrays a family as happy at the news of their gay son’s engagement, the majority claims, is equivalent to a law that threatened the very “survival of the Amish community” in the United States. To read that sentence is to refute it.

The majority’s myopic attempt to resolve a major constitutional question through close textual analysis of Uncle Bobby’s Wedding also reveals its failure to accept and account for a fundamental truth: LGBTQ people exist. They are part of virtually every community and workplace of any appreciable size. Eliminating books depicting LGBTQ individuals as happily accepted by their families will not eliminate student exposure to that concept. Nor does the Free Exercise Clause require the government to alter its programs to insulate students from that “message.”

In distorting Yoder to say otherwise, the majority leaves its test without any discernible limits. How are courts objectively to evaluate what amounts to a “very real threat” to a parent’s religious development of their child? Should they try to measure the intensity of the parent’s protestations, or must they simply accept the parent’s assertion that exposure to any particular book threatens their child’s religious upbringing? Or will judges simply know it when they see it and call their analysis “fact-intensive”? Perhaps cognizant of this problem, the majority insists repeatedly that its test looks for an “objective danger to the free exercise of religion.” That incantation, however, will be cold comfort to courts attempting to apply this peculiarly subjective test.

What is more, if even potentially imagined “coy” messages hidden in a picture book are sufficient to trigger strict scrutiny when they conflict with a parent’s religious beliefs, then it is hard to say what will not. Indeed, as the majority admits, “many books targeted at young children” contain a “normative” message, about, say, the virtues of helping your community or the joys of getting married. (How many children’s books, after all, end with a joyous wedding and the couple living happily ever after?) The same is true for books and textbooks throughout any public school curriculum.

Given the multiplicity of religious beliefs in this country, innumerable themes may be “contrary to the religious principles” that parents “wish to instill in their children.” Books expressing implicit support for patriotism, women’s rights, interfaith marriage, consumption of meat, immodest dress, and countless other topics may conflict with sincerely held religious beliefs and thus trigger stringent judicial review under the majority’s test. Imagine a children’s picture book that celebrates the achievements of women in history, including female scientists, politicians, astronauts, and authors. Perhaps the book even features a page that states, “Girls can do it all!” That message may be “directly contrary to the religious principles that” a parent “wishes to instill in their child.” In the majority’s view, it appears, that is sufficient to trigger strict scrutiny of any school policy not providing notice and opt out to objecting parents.

These types of challenges are not mere hypotheticals, either. Lower courts have long fielded religious objections of this nature. See, e.g., Mozert v. Hawkins Cty. Bd. of Ed. (CA6 1987) [and others].

Nor is the Court’s reasoning seemingly limited to reading material. Interactions with teachers and students could presumably involve implicit “normative” messages that parents may find “contrary to the religious principles” they wish to impart to their children and therefore “hostile” to their religious beliefs. A female teacher displaying a wedding photo with her wife; a student’s presentation on her family tree featuring LGBTQ parents or siblings; or an art display with the phrase “Love Is Love” all could “positively reinforce” messages that parents disapprove on religious grounds. Would that be sufficient to trigger strict scrutiny if a school fails to provide advance notice and the opportunity to opt out of any such exposure? The majority offers no principled basis easily to distinguish those cases from this one.

Hard questions might arise, too, from a school’s efforts to encourage mutual respect or to prevent bullying. If a student calls a classmate a “sinner” for not wearing a headcovering or coming out as gay, how can a teacher respond without “undermining” that child’s religious beliefs? Can parents litigate the content of teacher responses and impose scripts or opt-out policies for everyday interactions designed to foster tolerance and civility? Again, the majority gives no guidance.

One thing is clear, however: The damage to America’s public education system will be profound. Over 47 million students attend K–12 public schools in the United States, with nearly 17 million in elementary school. These students and their parents adhere to a wide range of religious beliefs, and the range of curricular topics, from science to literature to music and theater, covered in public schools is similarly vast. Against that backdrop, requiring schools to provide advance notice and the opportunity to opt out of every book, presentation, or field trip where students might encounter materials that conflict with their parents’ religious beliefs will impose impossible administrative burdens on schools.

Consider, first, the difficulties of providing adequate advance notice. There are more than 370 distinct religious groups in this country, and as the majority points out, Montgomery County is the “most religiously diverse county” in the Nation. Under the majority’s test, school administrators will have to become experts in a wide range of religious doctrines in order to predict, in advance, whether a parent may object to a particular text, lesson plan, or school activity as contrary to their religious beliefs. The scale of the problem is only compounded by the majority’s conclusion that even “subtle” and implicit messages contained in children’s books can trigger notice and opt-out obligations. If a parent objects to all material and interactions that support “nontraditional gender roles,” for instance, how are schools workably to deduce what books might cross the line? Or take the parents’ request in this very case: How should a school go about identifying “any other instruction related to family life or human sexuality that violates the parents’ or their children’s religious beliefs” in addition to the five Storybooks at issue here? Those in the majority will apparently “know it when they see it.” Jacobellis v. Ohio (1964) (Stewart, J., concurring) (referring to pornography). . . .

Worse yet, the majority’s new rule will have serious chilling effects on public school curricula. Few school districts will be able to afford costly litigation over opt-out rights or to divert resources to administering impracticable notice and opt-out systems for individual students. The foreseeable result is that some school districts may strip their curricula of content that risks generating religious objections. In the current moment, that means material representing LGBTQ students and families, like the Storybooks here, will be among the first to go, with grave consequences for LGBTQ students and our society. Next to go could be teaching on evolution, the work of female scientist Marie Curie, or the history of vaccines.

In effect, then, the majority’s new rule will hand a subset of parents a veto power over countless curricular and administrative decisions. Yet that authority has long been left to democratically elected state and local decisionmakers, not individual parents and courts. This Court has repeatedly recognized the wisdom of that regime, including in Yoder itself. . . .

The majority [also] badly misreads the Board’s teacher guidance. Far from directing teachers to “accuse students of being ‘hurtful’ when they express a degree of religious confusion,” the guidance is plainly designed to foster mutual civility and “respect.”

That purpose is clear throughout the materials. For instance, the guidance suggests that, in response to a child’s statement that, “being gay, lesbian, queer, etc. is wrong and not allowed in my religion,” a teacher could respond: “I understand that is what you believe, but not everyone believes that. We don’t have to understand or support a person’s identity to treat them with respect and kindness . . . In any community, we’ll always find people with beliefs different from our own and that is okay—we can still show them respect.”

That recommended response is careful to respect the religious views of students, while still encouraging civility and “kindness” towards others. . . .

To the extent students make comments that may be hurtful to classmates in the room, the guidance recommends teachers discourage such behavior. If a student says, “That’s so gay,” the guidance suggests a teacher may respond: “Regardless of how it’s intended, using gay to describe something negative reflects a long history of prejudice against LGBTQ+ people, so please don’t use it in that way. . . . You may not have meant to be hurtful: but when you use the word ‘gay’ in any way outside of its definition, it’s disrespectful.” Similarly, if a child says, “That’s weird. He can’t be a boy if he was born a girl,” the guidance encourages teachers to respond: “That comment is hurtful; we shouldn’t use negative words to talk about peoples’ identities.”

The majority reads these portions of the guidance to direct teachers to “accuse students of being ‘hurtful’ when they express” “confusion” based on their religious views. The majority only reaches that conclusion, however, by omitting portions of the student commentary to which the teachers are responding in the guidance. Those excised statements, the majority should presumably agree, could be hurtful to students in the classroom and thus warrant discouragement.

Comments like that, moreover, are sadly not uncommon in the Nation’s school system today. In a recent study, “the overwhelming majority” of LGBTQ students reported hearing homophobic language used by their peers, including “that’s so gay,” “dyke,” “faggot,” and “tranny.” Over two-thirds of LGBTQ students, moreover, reported feeling unsafe at school because of their sexual orientation or gender identity. Numerous other studies have found similar trends. . . .

Lastly, the majority is, of course, right to observe that not all parents can afford to send their children to private religious schools or to provide for homeschooling. Yet for public schools to function, it is inescapable that some students will be exposed to ideas and concepts that their parents may find objectionable on religious grounds. Indeed, this Court has long recognized that reality. See Lee v. Weisman (1992) (observing students may be “exposed” or “subjected during the course of their educations to ideas deemed offensive and irreligious”). To presume that public schools must be free of all such exposure is to presume public schools out of existence.

Not content to invent a new standard for free exercise burdens, the majority goes on to consider an issue beyond the question presented and unaddressed by the Fourth Circuit below: whether the alleged burden in this case is “constitutionally permitted.” . . .

The majority recognizes, as it must, that “the government is generally free to place incidental burdens on religious exercise so long as it does so pursuant to a neutral policy that is generally applicable.” That bedrock principle of free exercise doctrine ensures that “professed doctrines of religious belief ” are not “superior to the law of the land,” for an “individual’s religious beliefs may not excuse him from compliance with an otherwise valid law” or policy (in this case, the Board’s generally applicable rule against opt outs based on any reason). Employment Div., Dept. of Human Resources of Ore. v. Smith (1990)). The majority nevertheless proceeds to announce that “the character of the burden” in this case “requires it to proceed differently.” Smith, the Court claims, “recognized Yoder as an exception to the general rule,” and “the burden in this case is of the exact same character as the burden in Yoder.”

The problem for the majority is that this is not what Smith said. Smith recognized that “the only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections.” Only in such “hybrid situations” does the Court set aside its neutral and generally applicable inquiry. Yoder, the Smith Court explained, was such a hybrid rights case because the parents relied on both their substantive due process rights to “direct the education of their children” and the Free Exercise Clause. Here, however, the Court’s analysis makes no mention of substantive due process rights or the Fourteenth Amendment Due Process Clause. It instead asserts, simply, that “the burden in this case is of the exact same character as the burden in Yoder.” But saying so does not make it so. To the contrary, as detailed above, the burden asserted in this case is vastly different from that identified in Yoder.

Finally, the Court’s application of strict scrutiny itself only underscores the folly of its new approach. Under strict scrutiny, the government bears the burden of demonstrating that its policy “advances ‘interests of the highest order’ and is narrowly tailored to achieve those interests.” Fulton v. Philadelphia (2021) (quoting Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993)). The Court acknowledges that schools “have a compelling interest in having an undisrupted school session conducive to the students’ learning.” It concludes the Board’s policy permitting no opt outs, however, is not narrowly tailored to that interest. The Court notes that the Board permits opt outs from the “Family Life and Human Sexuality” program, a discrete health-education unit that MCPS offers in accordance with Maryland law. “If the Board can structure the ‘Family Life and Human Sexuality’ curriculum to more easily accommodate opt outs, it could structure instruction concerning the ‘LGBTQ+-inclusive’ storybooks similarly,” the Court asserts.

That misguided assessment illustrates perfectly why judges should not be tasked with second-guessing questions of school administration. The Court assumes, with no “specialized knowledge and experience” in the field of “educational policy,” that MCPS can simply create a new unit of instruction on these particular Storybooks and thereby resolve any undue administrative burdens from managing opt outs. What the majority elides, however, is that its ruling is not limited to a set of five storybooks. It applies, expressly, to “any other similar book,” an amorphous category the Court declines to define, but which will presumably include all other books that contain “subtle” messages on gender and sexuality, even not involving LGBTQ characters, that the parents here (and others in the future) might find objectionable.

The logic of the Court’s ruling will also apply to countless other topics, interactions, and activities that may conflict with a parent’s religious preferences. What of the parent who wants his child’s curriculum stripped of any mention of women working outside the home, sincerely averring that such activity conflicts with the family’s religious beliefs? It blinks reality to suggest that the simple solution for schools is to create new discrete units of instruction to cover any set of material to which a parent objects. The Court’s analysis thus reflects, all too well, the “obvious fact that courts are not school boards or legislatures, and are ill-equipped to determine the ‘necessity’ of discrete aspects of a State’s program of compulsory education.” Yoder.

What is more, the point of the Board’s program is to ensure that diverse groups of students are represented in reading materials across the curriculum. The Board cannot accomplish that purpose simply by consolidating all books involving LGBTQ characters into a single inclusivity hour and allowing opt outs, as the majority appears to believe. That approach would emphasize difference rather than sameness and foster exclusion rather than inclusion. The point of inclusivity is to use books representing a diversity of identities and viewpoints the same way one might use any other book, communicating that one’s LGBTQ classmates should be treated in the same manner as anyone else.

‍ ‍‍ ‍ * * *

Today’s ruling threatens the very essence of public education. The Court, in effect, constitutionalizes a parental veto power over curricular choices long left to the democratic process and local administrators. That decision guts our free exercise precedent and strikes at the core premise of public schools: that children may come together to learn not the teachings of a particular faith, but a range of concepts and views that reflect our entire society. Exposure to new ideas has always been a vital part of that project, until now.

The reverberations of the Court’s error will be felt, I fear, for generations. Unable to condone that grave misjudgment, I dissent.