LGBTQ+ Books in Schools and Religious Rights Under Review by SCOTUS

The U.S. Supreme Court will be weighing in on an important case, Mahmoud v. Taylor, concerning parental rights to the free exercise of religion and the authority of school districts over curriculum content and required instruction in the classroom.

Factual Background

In October 2022, the Board of Education for Montgomery County Public Schools (the “Board”) approved LGBTQ+ inclusive books for its English Language Arts curriculum. The books, some of which were intended for Pre-K students and others intended for K-5, featured characters and themes relating to sexual orientation and gender identity. For example, one book describes a young girl attending her uncle’s same-sex wedding, and another tells the story of a puppy that gets lost during a Pride parade. Initially, the Board allowed for notice to be sent to parents of the books’ inclusion in the curriculum as well as the option to opt out of lessons involving the books. This was in line with the Board’s guidelines for religious accommodation at the time. However, in March 2023, the Board decided to end the District’s notice and opt-out policy.

Following the removal of the notice and opt-out options, a group of parents from different religious backgrounds (represented by “Mahmoud”) sued the Board, arguing that by eliminating this option, the Board violated their religious freedom and parental rights because the parents were no longer able to teach their children about sexual orientation and gender identity consistent with their respective religions.  The group of parents are not pursuing a ban of the books, but rather the ability to maintain control over how or whether their children are exposed to content that may conflict with their religious beliefs.

The main question before the Supreme Court is whether a public school board violates the First Amendment by requiring elementary school children to participate in lessons involving books with LGBTQ characters and themes without offering prior notice to parents or providing an opportunity to opt-out for religious reasons.

Oral Arguments

The Court heard oral arguments on April 22, 2025, and as of June 5, 2025, the case is still pending before the Court. During the two and a half hour oral arguments, the Court indicated that it would likely find in favor of the parents. Following the oral arguments, Justice Kavanaugh noted that in religion cases, the Court typically tries to find the “win-win,” here noting that the parents “aren’t asking MCPS to change its curriculum” as a positive in favor of their argument.

Supreme Court Precedent and Possible Indications of How SCOTUS May Rule

The Supreme Court has previously addressed the intersection of religion, parental rights, and public-school curriculum when analyzing whether school district action establishes religion. Although no prior cases are identical to the facts at issue in Mahmoud, they may offer some insight into the precedent being considered by the Court.

In Stone v. Graham (1980), the Court struck down a Kentucky law requiring the posting of the Ten Commandments in public school classrooms because it violated the Establishment Clause of the First Amendment, which prohibits the government (and public schools as an arm of the government) from establishing or endorsing religion. In Santa Fe Independent School District v. Doe (2000), the Court held that student-led and initiated prayer facilitated with school resources violated the Establishment Clause. However, more recently in 2022, the Supreme Court’s decision in Kennedy v. Bremerton School District marked a significant shift in the precedent surrounding the Establishment Clause. In Kennedy, the Court held (6-3) in favor of Kennedy, a public high school football coach who initiated prayer during games, deciding that the Free Exercise and Free Speech clauses of the First Amendment protect an individual engaging in a personal religious observance and that the Constitution neither mandates nor permits the government to suppress such religious expression.

Although past decisions, especially the recent decision in Kennedy, may offer some insight into how the Court will land in Mahmoud, the Court overall has been somewhat divided on issues relating to religion and public education. In similar cases, lower courts including the Seventh Circuit have found that mere exposure to ideas may not violate the Free Exercise Clause in the same way compelled participation would, but it remains to be seen if SCOTUS will adopt this analysis.

Possible Implications

Parental Rights: A ruling for the parents in this case may lead to a broader level of permissible parental control over educational content across the country. It may also significantly limit public schools’ willingness to include LGBTQ+-inclusive content in schools for fear of large-scale opt-outs, classroom disruptions, and stigmatization of learning material with LGBTQ+ messages and the students who do not opt-out.

Public School Policy: A ruling for the school district would affirm the broad discretion of public schools to determine curriculum without providing religious opt-outs. This would, in turn, reinforce neutrality and inclusion in public education with local decision making, not just concerning this content, but for any content that some may find objectionable. In oral arguments, it was considered whether a decision against the school district would more broadly extend parental rights to objections such as to content “featuring divorce, interfaith marriage, and immodest dress” among other things.

Religious Freedom and LGBTQ Rights: The decision will set a new precedent for the boundaries between religious freedom, parental rights, and inclusive curriculum in schools. Further, it will shape how courts handle future disputes over book bans, curriculum content, and the rights of students and families.

We will be monitoring the outcome of this litigation. Please contact your Robbins Schwartz attorney with questions.