After Mahmoud v. Taylor, the latest in a string of court cases offering substantial protections for certain people’s free exercise of religion, many questions remain. Among them is this one: What can religious beliefs be about?
In Mahmoud, a multireligious coalition of families, with a named claimant who is Muslim, won the right to exempt their children from public school materials that include LGBTQ+ content. The group argued, and the majority of the Supreme Court agreed, that five storybooks advanced moral lessons that posed a “very real threat of undermining” the parents’ sincere religious beliefs and thus interfered with their right to “direct the religious upbringing of their children.”
Opponents, including Justice Sonia Sotomayor in her dissent, have argued that the decision gives license to religious believers to contest any material they find objectionable. Conservatives claim that the slope is not so slippery, that it won’t be a free-for-all. Justice Samuel Alito, writing for the court and quoting the 1972 case Wisconsin v. Yoder, explained that for students to opt out, the material must be presented in a way that is “hostile” to their religious beliefs and imposes a “pressure to conform.” Lawyer and author Asma Uddin asserted that the ruling is a “narrow holding” that addresses “a specific kind of burden, not every discomfort or value clash.”
Which beliefs count, then? It is no coincidence that the sentiments in this case are about sex and gender. For many Americans, including judges, it is obvious that such a (conservative) belief would be religious. This leads us to two types of counterexamples: Can more-progressive beliefs about sex and gender be recognizably religious? And can conservative or right-wing beliefs about other topics, such as race, also be religious?
Some progressive or liberal believers have won free exercise cases in recent years. In Indiana, a multireligious group of women, not unlike the parents in Mahmoud, contested the state’s abortion ban. They successfully argued that the ban burdened their consciences and violated their religious freedom. Becket, the legal organization that represented the parents in Mahmoud, argued against these women, alleging that their beliefs were not religious but in fact political. The Indiana women won, as the state court found that the abortion ban did violate their religious consciences and burden their religious exercise. Nevertheless, that Becket (whose slogan is “Religious Liberty for All”) was on either side of these two cases, siding with religious freedom claimants in one and against them in the other, shows how progressive religious beliefs often face more scrutiny. The religiosity of anti-LGBTQ+ beliefs, conversely, is taken for granted.
Alito quoted one school board member who, amid the conflict that led to the Mahmoud case, compared these parents to “white supremacists” or “xenophobes.” The justice doesn’t provide enough text for us to determine whether the member was actually equating these beliefs to white supremacy or xenophobia (although why shouldn’t they?). Alito seems to include this statement as evidence of animus by some board members to these parents—and also to signal that he might understand that racism and anti-LGBTQ+ positions are qualitatively different. In doing so, he raises the question of how such beliefs would be handled. It recalls his dissent in Obergefell, 10 years ago, lamenting that the legalization of same-sex marriage would “be used to vilify Americans who are unwilling to assent to the new orthodoxy.” Religious freedom has become a way not to assent, but from which “new orthodoxies” will students be exempt?
Under Mahmoud, there is no clear reason why parents would be unable to opt out of students’ exposure to any viewpoint with which they disagree, even if the normative implications are “subtle.” Likewise, there is no reason to assume that anti-LGBTQ+ beliefs are religious but racist beliefs or that pro-LGBTQ+ beliefs are not. This is a blinkered and shallow understanding of religion that crumbles under historical or sociological scrutiny.
Another key point of disagreement between the majority and the dissent is whether these books “merely expose” students to the existence of LGBTQ+ people or actively promote a certain moral stance. What neither fully acknowledges, though, is that complete neutrality, in which no values are learned, is neither possible nor desirable. There can be more of a facade of neutrality if a scrutinized text merely presents society as a multicultural melting pot than if it offers an explicit view of the state’s position on morality.
Sotomayor takes the pluralistic, melting-pot approach to neutrality, writing that public schools “offer to children of all faiths and backgrounds an education and an opportunity to practice living in our multicultural society.” Those differences, as she sees it, quoting the 1987 court, make public schools “at once the symbol of our democracy and the most pervasive means for promoting our common destiny.”
While this approach is laudable, its problem is that some parents’ “faiths and backgrounds” seek to annihilate some others. Many conservative religious people, especially white evangelicals, believe that they face persecution and discrimination through inclusion. However, LGBTQ+ people’s existence, including children’s, is actually under attack.
As is public education generally. Alito argues that Uncle Bobby’s Wedding, one of the five books considered in the case, “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.’ ” As Sotomayor says, if we can opt out of even “subtle” messages, chaos will reign and student learning will suffer as book after book is carted off due to individual complaints.
It matters, as Justice Clarence Thomas notes in his concurrence (for different reasons), that the case is about classroom books, not sex education. Children’s literature is generally not a subtle genre. Didacticism often subsumes narrative, with popular titles including Hands Are Not for Hitting and Everyone Poops. Although these may seem to be less controversial statements than one conveying that everyone should be able to marry someone they love, Sotomayor is right; allowing all sorts of exemptions will make teaching much more difficult because schools and children’s books are full of lessons that parents might object to, for whatever reason.
But this case was not about just any reason. It was about sex and gender, which brings us back to this question: Why, in the court’s view, are conservative approaches to sex and gender so obviously religious? And what else is religion about? Even with a Muslim claimant, this assumption seems to reflect the Christian right’s decades of mobilizing around sex and gender issues.
At the end of this Supreme Court term, the intersections of religion, schools, and parents are tangled and confusing. The justices nearly allowed for the creation of the nation’s first explicitly religious public charter school. Parents can opt out of public school instruction that interferes with their child’s religious upbringing. At the same time, parents cannot opt into gender-affirming care for their own children. Other observers have pointed out the seeming contradictions between Skrmetti and Mahmoud: Parents can shield their children from books about gay people, but they can’t make medical decisions for them. What, exactly, is the scope of “parental rights” now? And how do parental rights relate to religious freedom in the right to “direct” children’s religious upbringing?
Let’s conclude with two thought experiments. First, what might it look like to contest Tennessee’s ban on gender-affirming care, the same one the court upheld in Skrmetti, with a religious freedom argument citing Mahmoud? Could a religious parent in Tennessee not argue that the state’s ban on gender-affirming care interferes with their child’s religious upbringing? If they believe, sincerely and religiously, that trans expression is sacred or that God has made their child trans, then banning their gender-affirming health care undoubtedly poses “a very real threat of undermining” their religious beliefs. Such a case’s chances of success would depend, at least in part, on whether courts could recognize those beliefs as authentically religious.
Second, instead of progressive religious views about gender, what about other conservative religious views? What would happen if, for example, the parents in Mahmoud took issue with the fact that Uncle Bobby’s Wedding appears to portray an interracial wedding? Or imagine a slightly different book, with a white Uncle Bobby marrying a Black woman, or a Muslim Uncle Bobby marrying a Jewish woman. Would the case’s outcome be different?
Conservative beliefs about sex and gender are legible as religious largely because of the Christian right’s decades of organizing and the prominence of its campaigns against the rights of women and LGBTQ+ people. Its particularities have been taken as generic “religion.” If judges fail to recognize the religiosity of other beliefs about sex and gender—or of conservative beliefs about other topics—it is the result of these campaigns, not because these judges understand American religions as they are actually lived, practiced, and believed.
