Supreme Court Rules Some Americans Have a Constitutional Right to Insist on Theocracy
Heidi Li Feldman, Slate, 20250701
There have been any number of awful decisions from the current Supreme Court, but last week marked a clear breaking point for the American rule of law. You need only look to the second-worst decision of Friday, after the court’s devastating decision on nationwide injunctions in the birthright citizenship case. With its decision in Mahmoud v. Taylor, the court licensed private parties to compel theocratic governmental policies. These will now proliferate, at the command of private actors and with scarcely any overt governmental action. There have been other times in this country’s history when private actors have sought to impose their antidemocratic visions of the United States on the rest of us. Then, Congress passed still-operative laws empowering their victims to sue in court and recover damages for harms they suffered. In our day, the highest federal court in the land has responded by announcing, without any basis in law, that some Americans have a constitutional right to insist on theocracy.
Mahmoud arose when parents in Montgomery County, Maryland, demanded from the school board that they receive notice and the right to refuse their children’s attendance whenever books with LGBTQ+ characters and themes will be used during classroom instruction. The parents argued that the free exercise clause of the First Amendment entitles them to these accommodations. They posited that any exposure of their children to the books interferes with their right to instruct their children in religion.
The case reached the Supreme Court on the question of whether Montgomery County schools must offer the accommodations demanded—or stop using the books in classroom instruction—while litigation over the underlying issue continues. On Friday, writing for the court, Justice Samuel Alito announced the likelihood of the success the plaintiff-parents will eventually have on their substantive claim. The court granted the parents their temporary injunction. Whether the Montgomery County school board continues its legal defense of its policies hardly matters: Alito has told us how it will turn out.
The Mahmoud court held that the free exercise clause of the First Amendment requires public schools to give notice to parents and excused absences to children when parents claim that using particular books interferes with their ability to instruct their children in religion. The parents who sued the Montgomery County school board asserted that simply seeing teachers use books depicting LGBTQ+ adults and children living life happily—dressing as they prefer or receiving love and acceptance from their families or getting married—undermines the parents’ efforts to instruct their children that “mankind has been divinely created male and female”; “that ‘gender’ cannot be unwoven from biological ‘sex’—to the extent the two are even distinct—without rejecting the dignity and direction God bestowed on humanity from the start”; that “sexuality is expressed only in marriage between a man and a woman for creating life and strengthening the marital union”; and “that all humans are created as male or female, and that a person’s biological sex is a gift bestowed by God that is both unchanging and integral to that person’s being.” (Mahmoud quotes these beliefs from the plaintiffs’ pleadings.)
People hold and attempt to instruct their children in all manner of religious beliefs. Some atheists maintain that belief in the existence of a supernatural deity is dangerously antithetical to ideals of human dignity. Some believe that the ubiquity of books used in schools that depict children and adults merrily celebrating all manner of religious holidays makes it difficult to instruct their own children in the religious outlook they wish them to learn. Yet it seems unlikely that that the six-justice Mahmoud majority is prepared to require schools to provide notice and opt-out accommodations to these parents or, in the alternative, remove from the curriculum and the classroom books ranging from Ten Little Christmas Presents to Once Upon an Eid to Happy Diwali!.
To reach the conclusion that mere classroom exposure to books that depict LGBTQ+ people living life happily burdens free exercise, Alito had to contort the meaning of canonical Supreme Court doctrine so that he could either ignore established precedent or turn it on its head. In dissent, Justice Sonia Sotomayor masterfully exposed Alito’s extralegal interpretive maneuvers. Yet all her eloquence will not and cannot protect America’s pluralistic constitutional democracy from a rogue group of justices who have demonstrated that they will take any opportunity to wreck it. In vain, Sotomayor explains how the Mahmoud majority has rewritten beyond all recognition two foundational free exercise decisions from the court, Wisconsin v. Yoder and West Virginia State Board of Education v. Barnette. She calls Alito out for ignoring other free exercise cases such as Lyng v. Northwestern Cemetery and Bowen v. Kendrick. She properly ridicules Alito:
In the majority’s eyes, reading aloud Uncle Bobby’s Wedding is just “like the compulsory high school education considered in Yoder.” That assertion is remarkable. Reading a storybook that portrays a family as happy at the news of their gay son’s engagement, the majority claims, is equivalent to a law that threatened the very “survival of [the] Amish communit[y]” in the United States. To read that sentence is to refute it.
Sotomayor identifies just a few of the almost infinite ways some parent or other will now be able to demand notice and excused absence whenever certain books are used in class: “Books expressing implicit support for patriotism, women’s rights, interfaith marriage, consumption of meat, immodest dress, and countless other topics may conflict with sincerely held religious beliefs and thus trigger stringent judicial review under the majority’s test.” She correctly maintains that the court’s opinion imposes on public schools impossible administrative burdens.
Wreaking havoc in public schools may well be part of Alito’s intent. After all, the white Christian right in America has been undermining public education ever since Brown v. Board of Education. But as bad as the disruptions and damage to public schools will be, Mahmoud will be infamous for grimmer reasons. Mahmoud makes clear that any municipal body that attempts to continue pluralistic democratic practices now knows for certain that participating in a lawsuit creates an opportunity for the Supreme Court to hand down anti-constitutional diktats. This means that potential litigants face a Kafkaesque choice: They can either decline to litigate and act in accordance with the theocratic, authoritarian result the Supreme Court would be likely to promulgate, or they can litigate and have the court officially embed that result in the law reports.
No official judicial outcome and a terrible state of affairs, or an anti-constitutional judicial outcome and a terrible state of affairs: hardly a meaningful choice. The current Supreme Court has shut its doors to those who would have their government actually realize pluralistic democracy in this country. It stands firmly with the anti-constitutional forces in Congress and the executive branch in the effort to consolidate fascist authoritarianism in the United States.