CNN
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Alliances among the nine Supreme Court justices can shift back and forth, as in recent cases over President Donald Trump’s mass deportation of migrants. But religion is different.
The fundamental irreconcilable conflict on today’s Supreme Court was laid bare during an intense courtroom drama Tuesday over books on gender and sexuality in elementary schools.
The 6-3 sharp ideological divide emerged as the justices considered whether parents have a right to withdraw their children from certain reading classes based on religious beliefs.
Tempers flashed during the unusually long two-and-a-half-hour session. The personal harmony the justices try to show from the bench evaporated. Emotions were raw, and individual justices revealed the personal stakes.
Justice Brett Kavanaugh – describing himself as a “life-long resident” of Montgomery County, Maryland, where the public school dispute originated – said, “Maryland was founded on religious liberty and religious tolerance, a haven for Catholics escaping persecution in England going back to 1649.”
“And I guess I’m surprised,” he told Alan Schoenfeld, a lawyer for the school board, “given that this is, you know, this is the hill we’re going to die on, in terms of not respecting religious liberty, given that history.” (Kavanaugh and his children attended private schools.)
Fellow conservative Justice Amy Coney Barrett also expressed sympathy for the parents who objected to a school board practice that offered no opportunity for parents to keep their young children from the LGBTQ materials.
“I don’t understand (the parents) to be arguing that there was an objection to being taught respect and kindness to those who have different beliefs,” Barrett said. Rather, she said, turning to how children might be influenced, “I understood them to be more focused on things like, you know, this is an instruction to the teacher: ‘If a student observes that a girl can only like boys because she’s a girl, the Board suggested that the teacher disrupt the student’s either/or thinking by saying something like: Actually, people of any gender can like whoever they like.’”
Barrett, who at times has sided with the three liberals, for example, in disputes over proper court procedures, voiced scant equivocation here.
“It’s not about books on the shelf. It’s not about books in the library,” she observed to Eric Baxter, the parents’ lawyer. “It’s about actually reading the books with the text that communicates the ideas that are contrary to your clients’ sincerely held religious beliefs.”
The strains between the right and left side of the bench were especially evident as conservative Justice Samuel Alito and liberal Justice Sonia Sotomayor quarreled over the content in a book entitled “Uncle Bobby’s Wedding.”
In 2015, when the Supreme Court declared a constitutional right to same-sex marriage, Sotomayor voted with the majority and Alito dissented. Alito has made clear since then that he believes religious conservatives face public shaming if they object to gay marriage.
Last year, he referred in a case to “the danger that I anticipated in Obergefell v. Hodges … that Americans who do not hide their adherence to traditional religious beliefs about homosexual conduct will be ‘labeled as bigots and treated as such’ by the government.”
On Tuesday, Alito said of “Uncle Bobby’s Wedding,” “I don’t think anybody can read that and say, well, this is just telling children that there are occasions when men marry other men, that Uncle Bobby gets married to his boyfriend, Jamie, and everybody’s happy … (E)veryone accepts this except for the little girl, Chloe, who has reservations about it. But her mother corrects her: No, you shouldn’t have any reservations about this. … It has a clear moral message.”
“Wait a minute,” Sotomayor interjected.
“Can I finish, please?” Alito responded.
Eventually Sotomayor broke into the Q-and-A to insist, “The child character wasn’t objecting to same-sex marriage. She was objecting to the fact that marriage would take her uncle away from spending more time with her.”
Such debate reflected the pattern in religion cases in recent years, particularly since the six-justice supermajority formed and further benefitted religious conservatives.
The parents challenging the Montgomery County School Board in the case of Mahmoud v. Taylor contend that under the guarantee of free exercise, parents have the right to be notified and withdraw their children from instruction that interferes with their religious development.
The Montgomery County School Board minimized the number of books in question saying they involve “a handful of storybooks featuring LGBTQ characters in order to better represent all Montgomery County families.” It said teachers were not allowed to pressure students on their religious views. The school board said in court filings that allowing children to opt out of the storybook sessions would be “unworkably disruptive.”
What can five-year-olds understand?
Chief Justice John Roberts appeared less interested in how an opt-out option might work and more interested in how impressionable young children can be. He challenged a school board argument that students need not abide by what’s being presented in the books.
“Is that a realistic concept when you’re talking about a five-year-old?” he asked Schoenfeld. He suggested young children put great stock in what teachers say and could accept their views over parents’ religious teachings.
A high schooler might challenge a concept in the classroom, Roberts said, “But I’m not sure that same qualifying factor applies when you’re talking about five-year-olds.”
On the other side, liberal Justices Sotomayor, Elena Kagan and Ketanji Brown Jackson expressed concern about devising a clear rule for the classroom that would not prompt new parental objections.
“Once we say something like what you’re asking us to say,” Kagan told Baxter, “it will be like, you know, opt-outs for everyone.”
Sotomayor hypothesized to Baxter that, if the school board loses, religious claims could arise over materials that touch on interfaith or interracial marriage or even women who work outside the home.
“You see women on this Court in positions of work outside the home …” Sotomayor said. “So tell me where you’re going to draw the line?”
