Justice Brett Kavanaugh questioned lawyers during oral arguments for Mahmoud v. Taylor, a case involving LGBTQ+ books in schools.
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00:00This is Cavanaugh.
00:01A few questions.
00:02What's your understanding of how the surrounding counties are dealing with this Frederick County,
00:08Howard County, Prince George's County, Anne Arundel County, and the like?
00:11Yeah, Carroll County, for example, has taken the position that it will teach inclusivity
00:15without indoctrinating students.
00:17And so it's not introducing this ideology, extreme ideology about gender,
00:22whether your body says anything about your gender, whether doctors guessed at your sex,
00:26whether your pronouns change day to day based on the weather or not,
00:29whether you should petition for unisex bathrooms.
00:35It's teaching inclusivity without that indoctrination.
00:39And our clients agree every student deserves to be respected and loved,
00:44and nobody disagrees with that.
00:46But you don't do that by forcing others.
00:48In fact, religion is another one of the categories in the equity regulation that is required to be respected.
00:53The principals, when they first responded to this curriculum, their concern was for the religious students,
00:58that they were going to be dismissed and shamed for their beliefs.
01:02And I think you just said this, but you're not seeking to prohibit instruction in the classroom.
01:08You're just seeking not to be forced to participate in that instruction.
01:13That's correct.
01:15The term coercive, I think, has been used in some of the colloquy, but the right term is burden.
01:23Isn't that correct?
01:24That's correct, Your Honor.
01:25And if you think about their example of saying, like, the court, the Fourth Circuit said that, you know,
01:29the students were never asked to change their religious beliefs.
01:32Is it enough if you just ask them, will you change your religious beliefs?
01:35Or does there have to be something more?
01:37That is really not a workable standard.
01:39And, you know, schools should not be treated differently than any other government entity as far as what their obligation is.
01:45And it somewhat flips the Bill of Rights on its head if we're worried more about extreme examples that don't happen
01:51to protect the government from the parents as opposed to protecting the parents' fundamental rights to direct the religious upbringing of their children.
01:58And then in terms of sincerity, in other words, if you're lying about your religious belief, that can be inquired into,
02:06but not the legitimacy, the reasonableness, the acceptability, the consistency, none of that.
02:15The court has no business questioning any of that about someone's religious beliefs, as I understand our case law.
02:21That's right, Your Honor.
02:22In this case, again, the fact that the board has admitted that they would give opt-outs to Muslims who object to their children
02:27viewing an image of the prophet Muhammad, but not our Muslim clients who object to their students reading these books,
02:33shows that that kind of analysis would entangle courts in religious questions and invite religious discrimination.
02:40And then I guess I am a bit mystified, as a lifelong resident of the county, how it came to this.
02:49Can you just tell us what happened in March of 23?
02:54What happened in terms of the objections and how the school board responded to give us a little bit?
03:03Well, I share your concern.
03:04Two of my kids graduated from MOCO and were opted out when they asked on their own accord
03:09to opt out of some instruction on sex education.
03:12And what happened is we're not even entirely sure because for the entire first year the board promised in multiple places,
03:19on Fox News and other media, that parents would be notified and then they would be opted out.
03:25The last notice happened on March 22, 2023.
03:29The very next day, overnight, with no explanation, the board came out and said,
03:33we're changing the rule because we want all students to be instructed on inclusivity.
03:39That's at 547 in the appendix.
03:41That emphasis on all students have to receive this instruction.
03:44Nothing about administrability.
03:46And then from there on, even then they said, if we've already told you you can opt out,
03:50we'll let you do that, but more parents can't ask.
03:53And then it wasn't until later in the year when they actually revised their guidelines,
03:57which still allow certain religious opt outs and just not others.
04:00So this was clearly targeted at religious parents objecting.
04:04But then complaints were raised, right?
04:06That's right. Hundreds of parents complained.
04:09These were mostly, according to the news articles,
04:11mostly families from Muslim faith and Ethiopian Orthodox,
04:16who were objecting when they spoke to the board.
04:19The board accused them of using their religious beliefs as another reason to hate,
04:24accused a young Muslim girl of parroting her parents' dogma,
04:30and then accused the parents of aligning with racist xenophobes and white supremacists.
04:36And so, again, there's no question in this case that there is a burden,
04:41that it was imposed with animosity,
04:44and that it's discriminating against our clients because of their religious beliefs.