The Trump administration, not yet two months old, is making clear it wants a better reading of the First Amendment’s protection for religious freedom. And it’s taking concrete steps to make that happen.
In October 2022, the school board in Montgomery County, Maryland, approved certain “LGBTQ-inclusive” books for use in in the public school curriculum for children, even in pre-kindergarten classrooms. One book, for example, depicts a family whose puppy is lost at an “LGBTQ-pride parade.” Each page focuses on a letter of alphabet, asking the children to look for items such as a drag king or drag queen, leather, or underwear.
Teachers, administrators, and parents almost immediately objected to the effect and age-appropriateness of these books. As one court would put it, the books’ “rollout was contentious and many caregivers sought—for religious and secular reasons—to have their children exempted.” At first, the school board directed teachers intending to use those storybooks to notify parents and allow them to opt their children out by using a substitute text for those students.
After only a year, and without any explanation, the school board did a complete about-face, no longer allowing any notice or opt-out opportunity. Parents of various religious faiths filed suit (Mahmoud v. Taylor) in federal court, arguing that the policy violated their right to exercise religion and to direct the religious upbringing of their children. They did not seek to ban the use of these books in Montgomery County public schools. They argued only that the First Amendment requires notice and an opportunity to opt their children out “of classroom instruction on such sensitive religious and ideological issues.”
The first step in the litigation was to seek a preliminary injunction allowing these religious families to opt their children out while the policy’s legality was fully litigated. The Supreme Court has called a preliminary injunction “an ‘extraordinary’ equitable remedy” because it blocks implementation of a law or policy before it is actually found to be unlawful. As the court has described it, the first of four conditions for a preliminary injunction is a “clear showing” that the party seeking it “is likely to succeed on the merits.”
As the district court had done, however, the U.S. Court of Appeals for the Fourth Circuit denied the injunction because, it said, the parents had not even shown “a cognizable burden to support their free exercise [of religion] claim.” The parents have appealed this decision to the Supreme Court, which will hear oral arguments on April 22.
America’s Founders considered the right to exercise religion to be inalienable, fundamental, and natural – every label they could think of to put it at the top of the list. In fact, they said that this right takes precedence over “the demands of civil society.” As a result, the Supreme Court said for decades that the government may limit religious exercise only as a last resort and, even then, no more than absolutely necessary. In Employment Division v. Smith (1990), however, the Court held that this level of protection doesn’t apply when a law or policy appears “neutral” toward religion or “generally applicable.”
In her separate opinion in Smith, Justice Sandra Day O’Connor wrote that the government would not be “so naïve as to enact a law prohibiting or burdening a religious practice as such.” Government can be hostile, coercive, intolerant, or discriminatory toward religion even if it doesn’t say so in black and white. That’s the issue in this case.
The Fourth Circuit apparently has the view that O’Connor warned about. It’s one thing to say that denying parents’ ability to direct their children’s religious upbringing in this way is a modest burden on their exercise of religion. But here, the courts have said that it doesn’t constitute a burden at all. That’s not consistent even with the Supreme Court’s currently restrictive interpretation of the free exercise clause.
In dissent, Judge Marvin Quattlebaum argued that this case was similar to those where the Supreme Court has found a violation of the free exercise clause. In effect, these religious parents are forced to choose between following their faith regarding how to raise and instruct their children about sexuality and gender and receiving the public education that is supposedly available to everyone.
The Trump administration makes the same argument in its Supreme Court brief supporting the parents. Religious exercise only begins with the freedom to hold certain religious beliefs or to engage in explicitly religious practices. It also includes, the brief explains, raising children in a manner consistent with their religious faith. This clearly extends to topics such as sexuality and gender. Public schools, the brief argues, “burden religious exercise by requiring parents to choose between religious obligations and forgoing public education.”
The Supreme Court’s decision in Smith, which so badly distorted the traditional understanding of the free exercise clause, should be overruled. Justice Samuel Alito forcefully made the case for doing so in 2021 in his separate opinion in Fulton v. Philadelphia. The alternative, however, is not open season on religious freedom. The district court and the Fourth Circuit in this case imposed their own, unreasonably narrow version of religious exercise and how government can burden it. The Trump administration is already showing it will defend this fundamental right in every way it can.
