SCOTUS's new parental rights scheme

The Court says some of the right things about coercion in a public school context. But I doubt its new free-exercise theory will prove either truly neutral or practically workable.

Today the Supreme Court decided Mahmoud v. Taylor, the gay curriculum opt-out case from Montgomery County, Maryland. In a 6-3 ruling along ideological lines, with Samuel Alito writing, the Court ruled that exposure to a “LGBTQ-inclusive” group of storybooks in younger grades was likely to significantly impair parents’ rights to guide their children’s religious upbringing; that the appropriate standard to apply was therefore strict scrutiny, which ordinarily means complainants win even if the government can cite weighty interests on the other side; and that the objecting parents were therefore entitled to a preliminary injunction pending full hearing of their case.

As I’ve said elsewhere, I’m pretty well disposed toward the idea of parental opt-outs, as I am to ideas of school choice in general. Montgomery County is one of the nation’s most culturally and demographically diverse jurisdictions, and opt-outs allow school districts to finesse many differences between families that would otherwise arise. The district had previously allowed parent opt-out on some books in lower grades showcasing LGBT issues, but then decided to end the opt-out policy. Perhaps its administrators thought they were being liberal in doing so, but the result has been not only social strife but also the teeing up of a Supreme Court case that is likely to be far more damaging to liberal values than just continuing to allow the opt-outs would have been.

Today’s opinion may be garlanded with fine talk about free exercise, and it invokes the libertarian truism that mandatory public education is a coercive affair which ought to trouble us. That said, I think today’s Court opinion bids to expand free exercise doctrine in drastic and unconvincing ways. To begin with, I don’t think the Court has proven that exposing a kid to a cheesy and didactic storybook for 45 minutes constitutes a significant deprivation of the parents’ right to supervise his or her religious upbringing. I also think a Court that considers such a fact proven is going to be more apt to uphold regulation of, say, the media and public square generally on the rationale of preventing kids from seeing material that some parents consider objectionable - the theory on which governments in Russia and Hungary have driven gay pride stuff underground, to the applause of some rightists here. It’s a slippery slope.

I further doubt that the Court's newly declared parental rights regime is in fact going to be enforced in ways that are 1) neutral between different religious views; 2) consistent with ideas of content neutrality otherwise and 3) workable on a practical basis. Parents from peace churches, followers of Jainism and of Christian Science, and those who disapprove of some contents of the Christian Bible will not, in fact, enjoy as robust a nationally enforced opt-out right. Beyond that, even more than now, school districts will just avoid using material on evolution, health education etc.

Maybe my fears are misplaced. But right now it looks to me as if Montgomery County’s unwillingness to accommodate dissenters has resulted in a huge setback for liberal values.