Frank S. Ravitch is Professor of Law and Walter H. Stowers Chair in Law and Religion at the Michigan State University College of Law.
On 27 June 2025, the United States Supreme Court decided Mahmoud v. Taylor.[1] The case focused on the Montgomery County (Maryland) School Board’s integration of books featuring LGBTQ characters into the elementary-school English curriculum. The board had long integrated books with characters from a variety of backgrounds, including different religious and cultural backgrounds, into its curriculum. The goal of including books with LGBTQ characters was to be inclusive because the district is one of the most culturally, socially, racially, and religiously diverse districts in the United States.
A group of parents objected that exposing their children to the books would harm their ability to raise their children in their religious faith. The parents were from the Muslim, Roman Catholic, and Eastern Orthodox religions. They requested that their children be excused from participating in classes where the texts with LGBTQ characters were used. At first the board accommodated parental requests for exemptions because of the board’s long-held policy to accommodate students’ religious practices and beliefs.
Soon, however, teachers and principals began to claim that the accommodations were creating a significant administrative burden because the texts were integrated throughout the school year. Therefore, providing adequate notice and exemptions every time the books would be used was problematic. The schools did not teach a specific unit on LGBTQ people but rather simply included a few books with LGBTQ characters in the curriculum throughout the year. The same was true for books with characters from many other backgrounds.
As a result, the board reversed its position and denied the parents’ right to opt their children out of classes that might include these books. The parents, along with a parents’ rights group, sued the school board for failing to grant the requested exemptions. The case wound its way to the United States Supreme Court after both the district court and a divided court of appeals held in favor of the school board. In a 6-3 opinion the Supreme Court reversed, holding in favor of the parents.
The Court majority heavily based its opinion on the famous Wisconsin v. Yoder case decided in 1972. In that case Amish parents sued the state of Wisconsin to receive an exemption from state mandatory school attendance laws when their children reached high-school age. The reason for the claimed exemption was that Amish children need to be in the Amish community once they reach high-school age to learn the skills and traditions one needs to be a part of that community. The Supreme Court agreed, holding that forcing the Amish children to attend high school would functionally destroy the Amish community in violation of the Free Exercise Clause. Given the unique characteristics of the Amish, the Court held that the government could not meet the high level of scrutiny necessary to allow such a burden on the Amish. That level of scrutiny is called “strict scrutiny,” and it requires that the government have a compelling (very important) interest and that the government action that is alleged to violate the constitution is the least restrictive way to meet that compelling interest.
In Mahmoud, the Court majority held that Yoder stands for the proposition that the state cannot force exposure to ideas that undermine a family’s religious beliefs without violating the Free Exercise Clause. This was a misreading of Yoder and the other cases the majority cites, but for the reasons discussed below, the outcome in the case may have been correct. As the dissent explains, Yoder did not stand for the proposition that mere exposure to ideas that might violate someone’s religion is adequate to raise a free exercise violation. The dissent suggests, instead, that Yoder requires some form of coercion in order to support a free exercise violation. Yet this too is a misreading of Yoder.
Yoder says that where a substantial burden is placed on someone’s religion, the state has a duty to accommodate religious exercise unless the government action can meet strict scrutiny. As the Mahmoud majority states, the burden placed on the Amish by Wisconsin’s mandatory attendance law was clearly a substantial burden on Amish parents’ religious exercise. Yet the Mahmoud majority leaps from there to hold that exposure to ideas contrary to a family’s religious tenets pose a substantial burden to the family’s religious exercise. This would essentially place public schools in intellectual limbo where they may not be able to teach many central themes without providing adequate notice and an exemption to parents who claim a right to a religious exemption.
For example, as the Mahmoud dissent explains, some religions believe a woman’s place is at home, and the Court’s holding could prevent schools from teaching about the many amazing women who have impacted history, science, politics, etc., without providing adequate notice and exemptions. Yet this topic may arise at different times in different classes and could even arise in class discussion without much notice. Schools would be placed in a catch-22 because they might be sued for not giving adequate notice and exemptions for topics where notice may be impossible or administratively overwhelming. Moreover, this sort of exemption requirement could stifle the science curriculum by requiring constant notice of the introduction of topics in biology, chemistry, and physics because some religions do not believe in the big bang theory, evolution, chemical processes such as carbon dating, or myriad other scientific concepts.
Even so, the outcome in Mahmoud may be correct under reasoning that would not open such a massive duty to provide curricular exemptions. Yoder could support the idea that younger elementary-school-age students are not able to distinguish what they learn at school from what they learn at home, which may plant seeds of confusion that could impact the family’s ability to raise children in their faith. It is not the mere exposure that is the problem here but rather the subtle pressure placed on young children to reconcile their religion with what they are learning at school. This might warrant an exemption from some lessons under certain circumstances. This is because, as in Yoder, it might be impossible for parents to raise their children consistently with their faith if young students feel competing pressures to conform to what they are learning in school.
Providing exemptions, however, would still require serious consideration of their potential impact on the overall curriculum and on school administration. After all, it is one thing to accommodate students’ religious needs and another thing entirely to create a religion-based heckler’s veto where schools might be compelled by the administrative burden caused by exemptions to cut materials from their curriculum that could benefit other students. The Mahmoud majority seemed quite cynical about the administrative burden the exemptions placed on the school board despite the fact that the lower courts took that burden quite seriously and it was supported by significant evidence. The majority had little trouble concluding that the board could not meet strict scrutiny even if it had a compelling interest in promoting its curriculum. For reasons beyond the scope of this short blog post, I think the majority should have more carefully analyzed the burden on the school board, but even had the Court engaged in such an analysis, the parents in Mahmoud likely still should have won. Yet this result is not nearly as clear or simple as the majority characterizes it to be.
The majority’s failure to take the school board’s concerns seriously is evidence of a bias it showed throughout its opinion (and which Justice Thomas also showed in his concurring opinion). For example, the way the majority opinion characterizes and summarizes the books is in tension with what the books actually promote. The majority seems to confuse including people who are LGBTQ in otherwise normal situations, such as a child being jealous of losing time with a favorite uncle when he gets married, with promoting LGBTQ norms. One or two of the books might have crossed this line, and therefore would require notice and the option to request an exemption, but most did not.
Whether the majority was biased may soon be tested. Since the majority held that exposure to ideas that undermine a family’s religious beliefs violates the Free Exercise Clause without adequate notice and a right to an exemption, what would happen when written text that could undermine a family’s beliefs about religion is posted all day, every day, in every classroom from kindergarten through high school? Recently, Louisiana, Texas, and Arkansas have passed laws requiring that the Ten Commandments be posted in every public-school classroom.[2] These laws have been struck down by lower courts as obvious violations of the Establishment Clause. Yet the current Supreme Court has overturned more than 50 years of precedent under the Establishment Clause and cannot be trusted to respect the little precedent it hasn’t overturned under that clause. Mahmoud provides another potential basis for finding these mandated-display laws unconstitutional. Should one of these laws reach the Court, we could learn if the Court really meant what it said in Mahmoud.
Given that different faiths and denominations adhere to different versions of the Ten Commandments (including longstanding differences between the Catholic and Protestant versions), that many religions do not adhere to the Ten Commandments, and that some students are not religious at all, forcing students to be in classrooms every day, all day, with the Ten Commandments on plaques displayed prominently on the walls would certainly expose them to religious ideas or concepts that violate some families’ faith or lack thereof. There is no way to exempt students from this constant exposure short of removing the plaques because they are required in every classroom. This daily exposure to sectarian religious messages throughout each school day is far more exposure than that complained of by the parents in Mahmoud. Moreover, these messages are openly promoted by the state and the school. Will the Court use Mahmoud to find these laws unconstitutional? Perhaps, but only time will tell.
References:
[1] Mahmoud v. Taylor, 145 S. Ct. 2332 (2025).
[2] The 2025 Texas law (Senate Bill 10) applies the mandate to public elementary and secondary schools. The 2024 Louisiana law (House Bill 71) extends the mandate to include public college classrooms as well. Arkansas Act 573 (2025) is more expansive in mandating display of the Ten Commandments in all government buildings, including public school buildings.