Supreme Court Mulls LGBTQ Schoolbooks Amid Religious Rights Push

(Bloomberg) — The US Supreme Court will consider Tuesday whether it violates the Constitution for public elementary schools to use books with LGBTQ themes without letting parents opt out, in one of three cases this term that further tests the separation between religion and government.

In addition to parental rights, the disputes involve religious charter schools and state taxes on a faith-based charity. The array of hot-button arguments could see religious rights groups make fresh inroads at the expense of their secularist opponents.

Religious groups backing the cases believe the court’s 6-3 conservative majority — bolstered by President Donald Trump’s three first-term appointees — will continue an expansion of religious rights in business, education and other aspects of public life. Roughly a dozen cases in less than a decade have alarmed those who want to protect the long-held boundaries between government and religion, and they see recent rulings infringing on reproductive rights and protections for racial minorities and the LGBTQ community.

The justices are hearing the religious freedom arguments as the court has been fielding a spate of emergency requests over Trump’s agenda. Next week, they’ll hear arguments on whether states with public charter schools must let religious institutions join those programs. And the court could rule at any time in a third case, over whether a charitable arm of the Catholic Church is exempt from a state’s unemployment taxes.

The three cases focus on distinct but intertwined elements of the First Amendment: the establishment and free exercise clauses. The former bars government “establishment” of any religion, while the latter ensures the “free exercise” of such beliefs. 

Thomas Jefferson described the clauses in an 1802 letter as “building a wall of separation between church and State.” 

That phrase has been taken out of context in judicial decisions over the last century “and now people think there needs to be this brick wall where church and state never meet,” said John Bursch, senior counsel at the Alliance Defending Freedom, a Christian legal group that has been behind such high-profile cases as the 2022 overturning of nationwide abortion rights and is now representing the efforts to start a religious charter school in Oklahoma. The courts are now correcting that mistake, Bursch said.

In the past decade, the Supreme Court has been ramping up protections for religion, giving greater weight to the free exercise clause.

In 2022 alone, the court backed a high school football coach who lost his job for conducting post-game prayers with players on the 50-yard line, and barred Maine from excluding faith-based schools from a program that pays for private instruction in areas that lack public schools. And in a decision that hinged on the Constitution’s free speech clause, the court ruled that a Christian group should have been allowed to fly its flag over Boston’s City Hall, like other groups.

The shift has alarmed groups that work to keep government and religion separate.

“Religious extremists are trying to turn our sacred concept of freedom of religion on its head and use it to advance their desire for special power,” said Rachel Laser, president of the nonprofit Americans United for Separation of Church and State. “It’s a battle over whether America will be a pluralistic democracy or a god-ordained land for European Christians.”

Former appeals court judge Michael W. McConnell, now a Stanford Law School professor and senior fellow at the conservative-leaning Hoover Institution, said such concerns are overblown because most decisions will impact a narrow group. He also noted that many big decisions, like the flag case, were not decided completely along ideological lines and some were even unanimous.

Thinking in terms of religious wins or losses in these cases is “an oversimplified way of thinking about it,” he said.

The three cases before the court deal with these topics:

The case being argued Tuesday involves an appeal by Maryland parents who say the Montgomery County storybook program infringes their religious rights. The Supreme Court agreed to hear the case after a federal appeals court ruled against the parents.

In its ruling, the appeals court said it wasn’t yet clear how the materials — including a book about a puppy that gets lost at an LGBTQ-pride parade — would be used in the classroom.

The panel held that, as the case moved forward, families would need to prove that they or their children were being coerced into changing their religious views or practices. The plaintiffs argued that such a standard would require them to “essentially surrender their right to direct the religious upbringing of their children by sending them to public schools.” 

The argument attracted a diverse group of religious parents. The lead plaintiffs in the suit are Muslim, while others are Catholic and Ukrainian Orthodox. The school district has argued the parents seek to upend a “decades-old consensus” that exposure in public schools to ideas that parents don’t agree with doesn’t violate the free exercise of religion.

Religious Charter Schools

On April 30, the Supreme Court will hear arguments over whether states with public charter schools are constitutionally required to approve and fund religious institutions as part of the taxpayer-supported program. Plaintiffs in a pair of combined appeals seek to create the nation’s first Catholic charter school in Oklahoma.

The justices will review an Oklahoma Supreme Court decision that said allowing taxpayer funding for the religious school would violate the US and state constitutions. St. Isidore of Seville Catholic Virtual School argued in its appeal that Oklahoma “cannot deny generally available benefits to a school solely because it is religious.”

Oklahoma’s Republican attorney general, Gentner Drummond, had urged the court not to hear the appeal, saying the state court reached the right conclusion and that earlier Supreme Court rulings in favor of religious rights in schools weren’t the same.

A key question for the high court is whether St. Isidore’s school would be a so-called state actor, meaning it would be subject to the same constitutional requirements as if it were government-run.

Catholic Charities’ Taxes

In the case over unemployment taxes, the justices heard arguments last month over whether the Wisconsin Supreme Court correctly held that Catholic Charities of the Diocese of Superior didn’t qualify for a carve-out for religious organizations in the state’s unemployment compensation system.

The case could have a wide impact on state unemployment systems, which use taxes on employers to pay benefits to people out of work. Catholic Charities says 47 states have laws similar to Wisconsin’s. The group, which provides services to the poor and needy, has said it wants instead to participate in the church’s own unemployment compensation system.

Catholic Charities says the Wisconsin Supreme Court ruling discriminates among religions in violation of the Constitution’s First Amendment, while Wisconsin’s attorney general said the organization had failed to show how the ruling “prevents them from fulfilling any religious function or engaging in any religious activities.”

A ruling in favor of Catholic Charities potentially would let religiously affiliated hospitals and universities opt out of unemployment compensation systems as well.

The cases are Mahmoud v. Taylor, 24-297; Oklahoma Statewide Charter v. Drummond, 24-394; and Catholic Charities v. Wisconsin, 24-154.

–With assistance from Greg Stohr.

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