On Tuesday, Justice Neil Gorsuch questioned lawyers during oral arguments for Mahmoud v. Taylor, a case involving LGBTQ+ books in schools.
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00:00They offend religious beliefs do not qualify as a burden for free exercise purposes.
00:05Justice Gorsuch?
00:06I just want to make sure I understand a few fact things and then a law question.
00:12What age do you, in Montgomery County, teach students normally about human sexuality?
00:19I think that it begins in either fourth or fifth grade.
00:23The human sexuality class?
00:25The family life and human sexuality curriculum.
00:27Okay.
00:27I'm not entirely sure.
00:29Starts in fourth or fifth grade, do you think?
00:31Is there anything you can point us to in the record on that?
00:34I don't think so.
00:36Okay.
00:37And second, these books are being used in English class.
00:41The division between English class and other things in a second grade classroom doesn't really exist.
00:46You're sort of in a room with a teacher and sometimes...
00:48No, I appreciate that.
00:49I went to second grade, too.
00:52But it's part of the English curriculum that these books are being used in.
00:57I thought that was...
00:58Yeah, I'm not fighting the premise.
01:00I'm just saying that...
01:00It's not the math class.
01:01It is not...
01:02It's not the human sexuality class.
01:03It's the English class.
01:04It is certainly not the human sexuality class.
01:06I'm just sort of fighting the premise that there's a neat distinction.
01:10Okay.
01:10And they're being used in English language instruction at age three, some of them.
01:17So Pride Puppy was the book that was used for the pre-kindergarten curriculum.
01:21That's no longer in the curriculum.
01:22That's the one where they are supposed to look for the leather and things and bondage, things like that.
01:27It's not bondage.
01:28It's a woman in a leather...
01:29Sex worker, right?
01:30No.
01:30No?
01:31That's not correct.
01:31No.
01:32I thought...
01:33Oh, gosh, I read it.
01:34It's a drag queen.
01:35Drag queen and drag queen.
01:37Correct.
01:38The leather that they're pointing to is a woman in a leather jacket.
01:41And one of the words is drag queen in the...
01:43And they're supposed to look for those.
01:45It is an option at the end of the book, correct.
01:46Yeah, okay.
01:50And you've included these in the English language curriculum rather than the human sexuality curriculum to influence students.
01:59Is that fair?
02:00That's what the district court found.
02:03Do you agree with that?
02:04I think to the extent the district court found that it was to influence, it was to influence them towards civility.
02:09The natural consequence of being exposed...
02:10Whatever, but to influence them.
02:13In the manner that I just mentioned, yes.
02:15Okay.
02:15And responding to parents who are concerned, do you agree that there was some intemperate language used?
02:24I don't know that those were responding to parents who were concerned.
02:28This was after the fact for most of these comments.
02:31And this was in a very public setting, which obviously got heated, and some intemperate comments were used, certainly.
02:36And I wanted to understand your context that you were giving about the statement that some Muslim families...
02:45It's unfortunate that this issue put some Muslim families on the same side of an issue as white supremacists and outright bigots.
02:53I think in response to Justice Sotomayor, you were trying to give some context to that?
02:57I don't think I was speaking directly about that comment.
02:59I think that comment was given or was made in June, which was several months after the decision to withdraw the opt-outs was made.
03:06I don't have context for that statement, no.
03:08Okay.
03:09And then the legal question.
03:11Why isn't discrimination against religion a burden on religion?
03:15If a state, now this is hypothetical, not moving away from the record, if state actors intentionally discriminate against religion, what secular purpose, valid secular purpose, could that serve?
03:30And how wouldn't that be a burden?
03:32So I don't know.
03:34I mean, it depends on the hypothetical, what the state is doing and whether there's a secular purpose.
03:38That's hard to imagine one.
03:39But if this state is discriminating...
03:41Against Muslims or Catholics or Protestants or whatever.
03:45I think this court has recognized that when an enactment that discriminates on its face, or has recognized with respect to an enactment that discriminates on its face, it is intrinsically coercive.
03:55That's how the court has performed the burden inquiry.
03:57If you are privileging one religion over another, you are coercing people to subscribe to that particular set of beliefs in order to get...
04:04So that's a burden.
04:05Yeah, absolutely.
04:08And this is Kavanaugh.