SCOTUS's parental rights messages: Protect anti-LGBTQ views, ignore LGBTQ people

The court protected religious parents' rights in a case over LGBTQ-related books in classrooms. Days later, the court turned away requests from parents of trans kids.

Less than 72 hours after the U.S. Supreme Court upended First Amendment law to provide religious parents with what Justice Sonia Sotomayor called a “veto” over public school decisions in a case over books with LGBTQ characters, the justices made abundantly clear that Mahmoud v. Taylor must not be seen as a parental rights case.

It is, of course. It’s just a parental rights decision that is only available to certain parents — those with religious claims.

On Monday, the court showed the shallowness of its parental rights concerns when the court denied review in two other parental rights cases — involving bans on gender-affirming medical care for transgender minors.

In the cases out of Tennessee and Kentucky, the district court judges agreed with the individuals challenging the laws that they were likely to succeed on their claims that the bans violated trans minors’ equal protection rights. When the U.S. Court of Appeals for the Sixth Circuit reversed that, they sought review from the Supreme Court on that ground, as had the Justice Department during the Biden administration.

The Supreme Court only granted the Justice Department’s request to hear the case, however, leading to the June 18 decision in U.S. v. Skrmetti upholding Tennessee’s law.

The reason for that was because the individual plaintiffs also claimed that the laws violated the constitutional rights of parents to direct the upbringing of their children, including medical care decisions, and the district court judges had agreed they were likely to succeed on those claims as well. The Sixth Circuit reversed on those claims, too, so the individual plaintiffs asked the justices to take up that issue as well.

In short, after Skrmetti, these two individual plaintiffs’ case were about their parental rights claims. And, on Monday, the Supreme Court passed on considering that question, denying certiorari in both Tennessee and Kentucky cases.

No justices wrote anything, and a denial of review is not a decision on the merits, so the issue, legally, remains open to challenge. But states defending against such challenges and the Trump administration will undoubtedly point to the Sixth Circuit’s decision, highlight the U.S. v. Skrmetti decision, and suggest that Monday’s denial should be read — at the least — as a signal.

Because it was.

If the justices so concerned about parental rights on Friday meant that, they would have, one would think, taken a question relating to a similar issue — or, at least, sent it back to the Sixth Circuit to be reconsidered in light of Skrmetti and Mahmoud.

But that is not the message the court wanted to send on Monday. In four other cases relating to trans people’s lives, the court did send the cases back to be reconsidered in light of Skrmetti. All of those cases were cases in which the plaintiffs challenging anti-trans policies won in the appeals court, so it was the government defending those policies and asking the Supreme Court to take up the cases.

In all four cases — two involving Medicaid exclusions for gender-affirming medical care, one involving public teachers health insurance plans, and one involving birth certificate policies — the Supreme Court granted certiorari, vacated the appeals court decision below, and remanded “for further consideration in light of” Skrmetti. In other words, the Fourth Circuit, Ninth Circuit, and Tenth Circuit are to re-examine these cases given Skrmetti.

But, in the two cases where the states defending their anti-trans policies won below, the court let those stand — even though the plaintiffs had raised a question unresolved by Skrmetti.

By Monday afternoon, the message was sent.

The Seventh Circuit issued an order sua sponte — meaning, by the court’s own action, without a party even asking it act — on Monday afternoon vacating a decision in a case over anti-trans school bathroom policies in which the court, applying well-established precedent in the circuit, upheld a lower court’s decision blocking the anti-trans policy. Now, however, the appeals court’s decision is gone, with those judges asking the parties to brief whether the earlier 2017 and 2023 decisions should be overruled in light of Skrmetti and, if so, whether the policy is valid.

For its part, in a pending case over Florida’s Medicaid exclusion, the Eleventh Circuit acted even more quickly (although with less immediate effect), ordering supplemental briefing on the impact of Skrmetti in an ongoing appeal over the district court’s injunction blocking that Medicaid exclusion. The order was issued 20 minutes after the Supreme Court’s Monday orders list came out.

And all of that was just Monday.

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About Mahmoud

Mahmoud v . Taylor — the case over what the court called “LGBTQ+-inclusive” books in a Maryland school district’s curriculum — does deserve its own discussion as well. It is a dangerous piece of work. Because Justice Sam Alito wrote the opinion, I’m honestly not sure which parts of it are intentionally dangerous and which are just Alito’s carelessness.

As I wrote two years ago, though, “The right has the votes, and they will move in ideological cases as they want and when they want.“ The opinions of June 27 certainly went a long way to furthering that point.

I can’t imagine a worse person than Alito to have gotten his hands on that majority opinion in Mahmoud, and the consequences of Chief Justice John Roberts’s presumptive decision to assign the opinion to Alito is yet another mark of ignominy on Roberts’s increasingly irredeemable time as chief. Roberts will have served as chief justice for 20 years this fall, and yet, unless something out of the ordinary happened with the case, he used the accumulated wisdom of those two decades to give Alito this opinion.

Alito is a political, ideological warrior who is not always a careful jurist, and his extremist, expansive opinion — based in the Free Exercise Clause of the First Amendment — shows that. And yet, it is a Supreme Court decision and we will all be living with the consequences of his rant-as-opinion-of-the-court for the foreseeable future.

Mahmoud has echoes of the problems of Dobbs v. Jackson Women’s Health Organization, the three-year-old decision ending Roe v. Wade that he also authored and whose fallout — and failings — are still being fought out, even aside from the consequences of the ruling itself.¹

Like Dobbs, there is — intentionally or accidentally — vague and imprecise or factually inaccurate language in Mahmoud at varying points that will make applying the decision to the issue before the court (school policies regarding books available in the curriculum) difficult for lower courts — let alone for other issues — moving forward.

Justice Clarence Thomas wrote an opinion concurring in Alito’s decision that bore another Dobbs-esque characteristic, although it was only written for himself and is pure Thomas. He gave a retelling of a key decision relevant to the case, Wisconsin v. Yoder, as a “history and tradition” decision. (Of course, he provides a description of history that would all but erase the possibility of equal treatment for Americans who were not in the majority at the nation’s founding.)

The Yoder case is an important one, key to Alito’s opinion as well, so it’s important to lay out what it was about. In the case, Amish families sued successfully to be exempted from a state law requiring school attendance until age 16. The Amish families wished to withdraw their children after eighth grade because it was necessary for teens’ “integration into the way of life of the Amish faith community.” The Supreme Court agreed that “the compulsory attendance law” could not be applied to the families because it “carries with it a very real threat of undermining the Amish community and religious practice as they exist today.” From there, the court explained that it was doing so in furtherance of “the fundamental interest of parents … to guide the religious future and education of their children.”

Here, though, Justice Sonia Sotomayor wrote in dissent, the case, ultimately, is about “[e]xposing students to the ‘message’ that LGBTQ people exist.”

Can parents demand notification of and the ability to opt their children out of mentions of the existence of LGBTQ people in furtherance of that fundamental interest of parents? Alito told us that the answer is yes — if the parents claim they need to do so because of their religious beliefs.

“[W]e conclude that the Board’s introduction of the “LGBTQ+-inclusive” storybooks, combined with its no-opt-out policy, burdens the parents’ right to the free exercise of religion,“ Alito wrote, holding that the books in question, “slyly” at times, “convey[ed] a positive message“ about LGBTQ people.

That was, itself, a drastic decision with broad implications and unclear standards for application that was based on a questionable-at-best interpretation of the books at issue.

How much of a message? How is it to be found? If Alito’s “slyly” standard is now the law of the land, it’s hard to say how a district judge who wants to do so could not find such a message in a book.

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That wasn’t all.

Alito went much further. Normally, if a governmental policy is “neutral and generally applicable,“ then “incidental burdens” can be upheld. Only if it is not “neutral and generally applicable” does the policy in question get subjected to strict scrutiny — a standard under which governmental policies usually fail.

Not so here, Alito held.

“Here, the character of the burden requires us to proceed differently,” he explained. “When the burden imposed is of the same character as that imposed in Yoder, we need not ask whether the law at issue is neutral or generally applicable before proceeding to strict scrutiny.“

Alito, unsurprisingly, went on to find that the school’s LGBTQ+-inclusive books policy, in light of the lack of any opt-out option, failed strict scrutiny because regardless of whether the school district had a compelling interest for the policy it was not narrowly tailored to that interest because it could not justify the lack of an opt-out option.

In dissent, Sotomayor explained the problem with that secondary analysis applying strict scrutiny because the court’s decision failed to address the reason why insisting on an opt-out option doesn’t work when the whole point of the books “is to ensure that diverse groups of students are represented in reading materials across the curriculum.“ That can’t happen if, as Alito essentially required, the school has to “consolidat[e] all books involving LGBTQ characters into a single inclusivity hour“ in order to allow the opt outs.

But, the bigger and analytical problem with Alito’s decision was his own sly move expansively interpreting Yoder to jump into strict scrutiny due to the “character of the burden.” Of that — and referencing another case, Employment Division v. Smith, that explained the “general rule” in free exercise challenges like these — Sotomayor wrote:

Yoder was such a “hybrid” case, Sotomayor explained, “because the parents relied on both their substantive due process rights to ‘direct the education of their children’ and the Free Exercise Clause.“

She continued:

Here, however, the Court’s analysis makes no mention of substantive due process rights or the Fourteenth Amendment Due Process Clause. It instead asserts, simply, that “the burden in this case is of the exact same character as the burden in Yoder.” Ante, at 37. But saying so does not make it so. To the contrary, as detailed above, the burden asserted in this case is vastly different from that identified in Yoder. See supra, at 14–17.

Unfortunately, Alito did say so — and, because he had the votes, it is so, for now at least.

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Why did he do so?

First, in general, legal conservatives have long fought any expansion of — and have sought to restrict — the use of “substantive due process.” This is the “rights” language of a more liberal court, and they don’t like it. So, it’s not altogether surprising that he wouldn’t want to highlight it here.

But, more specific to this moment, that parental right argument — generalized as the parental right to direct the upbringing of their child — was the very issue the individual plaintiffs had asked the justices to consider in the cases over Tennessee and Kentucky’s bans on gender-affirming medical care for transgender minors.

Their argument cited to Troxel v. Granville, another parental rights case that builds off Yoder.

For Alito to acknowledge any of that line of cases would have been to validate — in however slight a way — the claims of those parents of trans children that the court would be turning away days later.

As such, Alito got his majority opinion in Mahmoud and just wrote around it — and schools will now be forced to shield students from LGBTQ+-inclusive books when parents raise religious objections.

The Supreme Court suffers, the law suffers, communities seeking to foster inclusion suffer, families of trans kids suffer, we all suffer.

1. It is possible that either Roberts or Justice Clarence Thomas had assigned that opinion to Alito — but, whether Roberts did or not — we know that he parted ways with Alito at some point, eventually only concurring in the judgment of the decision and not joining any of Alito’s opinion. That didn’t happen in Mahmoud. Roberts fully joined the opinion and wrote nothing of his own.