In the Public Interest is excited to present its third annual miniseries examining notable decisions recently issued by the United States Supreme Court. In this episode, host Felicia Ellsworth is joined by WilmerHale Counsel Joey Meyer to discuss Mahmoud v. Taylor, which concerns the constitutional rights of parents who send their children to public school to opt their children out of lessons that may be at odds with their religious beliefs. WilmerHale represented the appellee in the decision.
Together, Meyer and Ellsworth cover the background of the case and the implications of the Court's ruling on issues like parental rights, LGBTQ+ rights, and religious freedoms. Meyer also shares additional context from his experience as one of the WilmerHale lawyers who helped secure a victory for the public schools in the Fourth Circuit before going on to help represent them before the Supreme Court.
Related Resources
- SCOTUSblog: Mahmoud v. Taylor
- Fact Sheet: Mahmoud v. Taylor, the U.S. Supreme Court Case About Banning LGBTQ-inclusive Books
Episode Transcript
Felicia Ellsworth: Welcome to In the Public Interest, a podcast from WilmerHale. My name is Felicia Ellsworth and I'm a partner at WilmerHale, an international law firm that works at the intersection of government, technology and business. Today's episode is the first installment of our 2025 Supreme Court mini series, where we dive into the most hotly contested decisions coming out of the Supreme Court this term and discuss the implications of the court's rulings going forward. Today we'll be discussing a major case from this term, Mahmoud vs Taylor. This case concerns whether parents who send their children to public school have a constitutional right to opt their children out of lessons that clash with the parent's religious beliefs, specifically in this case, elementary school lessons, using picture books with gay or transgender characters. Joining me to discuss the case is Joey Meyer, a counsel in our DC office. Joey was one of the WilmerHale lawyers who represented the public schools before the Supreme Court, and before that he helped secure the school's victory in this case in the Fourth Circuit. Thanks for joining us today, Joey.
Joey Meyer: Thanks for having me.
Felicia Ellsworth: So, for our listeners who might not be familiar with the case, can you give us a brief background about how the case came about and what the two sides were arguing?
Joey Meyer: Sure, the case arose out of Montgomery County, Maryland, when the public school board there undertook an effort to make its elementary school language arts curriculum better reflect the diversity of the community by adding one picture book per grade level, K through five, that features gay or transgender characters. Some parents didn't want their kids exposed to those books, so at first the schools tried to accommodate that by allowing parents to opt their kids out of the classroom whenever one of these books was read. But after trying that for some time, the schools found that opt-outs created a stigmatized environment and that they were just not administratively feasible. So, the school board announced that opt-outs from the books would no longer be allowed, just like you generally can't opt your kids out of other aspects of the curriculum and that decision caused three sets of parents to sue the school board, arguing that the no opt-out policy infringed their right to freely exercise religion because they believed their children's exposure to books with gay or transgender themes was sex education that was inconsistent with their faith. We argued in response on behalf of the schools that first of all, picture books that acknowledge the existence of gay and transgender people and depict them as worthy of respect are not sex education, and also that parents don't have a constitutional right to pick and choose based on their religious views which portions of a public school curriculum their kids will experience.
Felicia Ellsworth: Before we get to how the Supreme Court ruled, can you talk a little bit about what the lower courts had said?
Joey Meyer: The lower courts both ruled for the school board holding that parents don't have the right to opt their kids out of particular aspects of the curriculum based on their religious views. And that pretty clearly followed from Circuit Court precedent across several different circuits, including the Fourth Circuit, which is where we litigated this case. Parents have brought these kinds of claims in the past and courts have always ruled, as the courts in this case ruled, that students are not coerced just by being merely exposed to material in public school that may conflict with their religious beliefs, and therefore that parents don't have a constitutional right under the free exercise clause to opt their kids out.
Felicia Ellsworth: So now let's bring us up to date on the Supreme Court. Can you describe both how the court ruled and some of the reasoning it gave for its ruling?
Joey Meyer: So, the court ruled 6-3 for the parents. Justice Alito wrote the majority decision, and Justice Sotomayor wrote in dissent. The rule the majority announced is that parents have a constitutional right under the Free Exercise Clause of the First Amendment to opt their kids out of any aspect of a public school curriculum that poses a “real threat of undermining the religious beliefs and practices that parents wish to instill in their children.” And the court held that the books at issue in this case depicting LGBTQ people in a positive light pose that kind of threat and therefore pose a “objective danger to the free exercise of religion.” The upshot is that parents have a constitutional right to opt their kids out of the classroom whenever books like this are in use.
Felicia Ellsworth: So, can you talk a little bit about how this ruling fits in with the prior religious freedom cases in the Supreme Court? Does it depart from those cases? Does it follow them?
Joey Meyer: Yeah. So, this is a real sea change. For about a century, courts have consistently held that, while parents don't have to send their kids to public school, if they do, they don't have the right to opt their kids out of particular aspects of the curriculum that may conflict with their religious beliefs. There have been several cases litigated where religious parents have wanted to opt their kids out of lessons on evolution books, even books featuring women who work outside the home and courts have always said no, you don't have that right. Now, on the other hand, the Supreme Court did hold in a 1972 case called Wisconsin v. Yoder, that Wisconsin couldn't require Amish parents to send their children to public school past the 8th grade because attending high school was inconsistent with the Amish way of life. And that's the main precedent that the Mahmoud majority relied on. But I'll note that in Yoder, the Court actually expressly said that while the Amish parents had their right to pull their kids out of public school entirely, they did not have the right to pick and choose among particular aspects of the public school curriculum. So, the decision in Mahmoud really is a significant departure, even from the precedent that the Supreme Court relied on.
Felicia Ellsworth: So, given that precedent and the tradition against religion based opt-outs in public school, was the team surprised by how the case came out?
Joey Meyer: Over the past decade or so, the Supreme Court has taken a very expansive view of the role of religion in public life, and that's been apparent in LGBTQ cases like one where the court ruled for a wedding website designer who refused to serve same sex couples. And it's been apparent in public school cases like one where the court held that a public school football coach could lead students in prayer on the field after games. But I do want to note that the Mahmoud decision actually is in contention with the case about the high school football coach I just mentioned, because in the football coach case, the court reasoned that there was no First Amendment Establishment Clause violation because students merely being exposed to the coach's prayer didn't amount to coercion of the students, whereas in Mahmoud the court held that there was a First Amendment Free Exercise violation because students being exposed to books with LGBTQ themes did amount to coercion of the students. So, it sort of appears now that coercion might mean one thing under the First Amendment's Free Exercise Clause and another thing under the Establishment Clause.
Felicia Ellsworth: So, as you noted, this case has a number of contentious topics that are intertwined, religion, public schools, LGBTQ issues. Can you talk a little bit about the oral argument in this case and how some of the contentious nature of those topics manifested during the argument?
Joey Meyer: I'll start by saying that Alan Schoenfeld, our partner in New York, who argued the case, did a really phenomenal job navigating a contentious argument, and he actually was commended for that from the bench by Justice Kavanaugh, who ruled against us. The case was contentious, and it was particularly striking because we're used to sharp disagreements on the court over how to interpret legal texts. But here the justices were passionately disagreeing over how to interpret books written for five-year-olds. To give one example, there was a pointed exchange both at oral argument and in the written opinions between justices Alito and Sotomayor, over a book called Uncle Bobby's Wedding, which is about a little girl named Chloe, who is nervous at first about her favorite uncle getting married to his boyfriend. Now, in Justice Sotomayor's reading, Chloe was nervous because she thought her uncle wouldn't have time for her anymore. And the lesson of the book is that families grow, but our loved ones always have room for us. Justice Alito had a very different take. To him, Chloe was upset because she was opposed to same sex marriage and the lesson of the book is that Chloe was wrong to oppose same sex marriage. I encourage folks to check out Justice Sotomayor's dissent, which includes this entire picture book in full so folks can decide for themselves. Anyway, I think it's important to highlight the justices' wildly divergent glosses on these picture books because it's a good reminder that they view texts of all kinds through very different lenses. And that was certainly true in this case, both as to the picture books and as to the Free Exercise Clause of the Constitution.
Felicia Ellsworth: So, what's next, Joey? Where do we think the Supreme Court and public education might be headed when it comes to accommodating and dealing with divergent views on issues including accommodating religious views?
Joey Meyer: Well, this certainly continues the courts trend toward a more expansive view of religion in public life, and in particular in situations where accommodating religion comes at the expense of LGBTQ rights. But this isn't just about LGBTQ rights. As important as that is, the Court here announced a very broad right of parents to opt their kids out of any aspect of a public school curriculum that's inconsistent with their religious views and there really are no clear limiting principles. So, we'll see what other aspects of school curricula illicit religious opt-out requests, Evolution, The Big Bang, books that feature women working outside the home. Again, these are all real examples from past cases and, under the precedent announced in Mahmoud, these topics could be subject to religious opt-outs. I also think we're likely to see an effect on public schools. The court majority made a point to say that giving parents an opt-out right doesn't give them any substantive control over the curriculum itself. But that may not be true as a practical matter, because schools may well choose to just avoid certain topics rather than having to deal with opt-outs. And one last thing I'll note are the possible implications of the broad view of parental rights, adopted by the court in Mahmoud, because that could cut both ways on some other culture war type issues. So, for example, in another major case this term, the court upheld a Tennessee ban on medical treatment for gender dysphoria in minors. But one issue that wasn't before the Supreme Court in that case is whether parents have a constitutional right to access that treatment for their children. So, it's conceivable that the strong view of parental rights reflected in Mahmoud could be used to support a parental rights argument in that context or in similar contexts, so that remains to be seen. But it's something to keep an eye on.
Felicia Ellsworth: Well, really fascinating issues. And as you say, lots of different potential directions the precedent established by Mahmoud could go. An interesting discussion on a very important case and it will be interesting to see how it impacts the First Amendment, public education disputes and religion jurisprudence more broadly. So, thanks for coming.
Joey Meyer: Thanks again for having me.
Felicia Ellsworth: And thank you to our listeners for tuning in to this episode of In the Public Interest. We hope you'll join us for our next episode. If you enjoyed this podcast, please take a minute to share with a friend and subscribe, rate and review us wherever you listen to your podcasts. If you have any questions regarding this episode, please e-mail them to us at inthepublicinterest@wilmerhale.com. For all of our WilmerHale alumni in the audience, thank you for listening. We are really proud of our extended community, including alumni in the government, the nonprofit space, academia, other firms and in leadership positions and corporations around the world. If you haven't already, please join our alumni center at alumni.wilmerhale.com so we can stay better connected. Special thank you to the producers of this episode, Walker Schneider, Pieter Brower, and Matt O'Malley, sound engineering and editing by Brian Benenati, marketing by Andy Basford and his team, all under the leadership of executive producers Kaylene Khosla and Jake Brownell. See you next time on In the Public Interest.
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