Federal Court Rules Maryland Parents Cannot Opt Children Out of LGBT Lessons

Despite national attention and thousands of protesting parents, a federal court is refusing to allow parents to opt their children out of LGBT courses in school. The U.S. Fourth Circuit Court of Appeals decided on Wednesday that Montgomery County Public Schools (MCPS) in Maryland does not have to allow parents to opt their children out of LGBT-themed lessons. Judge G. Steven Agee, a George W. Bush appointee, claimed that the parents seeking to opt their children out of the lessons in question did not provide sufficient evidence to justify a preliminary injunction.

In March of last year, MCPS added nearly two dozen “LGBTQ+ inclusive texts” to the pre-K through 8th grade curriculum. According to a lawsuit filed in May, parents were told that “no notice will be given” of when LGBT-themed lessons will be taught and that “no opt-outs [will be] tolerated because [students] must learn to be more ‘LGBTQ-Inclusive.’” The federal lawsuit was brought by a group of Christian and Muslim parents who wished to remove their children from LGBT-themed lessons on religious grounds. Over 1,000 parents — including Catholic, Ethiopian Orthodox, evangelical, Muslim, and Jewish parents — attended a subsequent MCPS board meeting to protest the decision to rescind parental opt-outs.

Then, in August, Biden-appointed U.S. District Court judge Deborah Boardman ruled against Maryland parents, claiming that mandatory LGBT lessons do not constitute a religious liberty infringement. She wrote that reading books about transgenderism, drag queens, and bondage fetishes to children as young as three “is not indoctrination” and does not “directly or indirectly” coerce children into activity “that violates their religious beliefs.” Instead, she suggested that concerned parents — who, according to the policy Boardman sanctioned, have no notice of when these lessons are being taught — discuss the lessons with their children at home after school.

On a separate note, Boardman expressed a concern that too many parents would opt their children out of LGBT lessons, which she claimed would “expose students who believe the books represent them and their families to social stigma and isolation” and would further “defeat [the school board’s] ‘efforts to ensure a classroom environment that is safe and conducive to learning for all students’…” Finally, the judge denied any preliminary injunction, meaning that parents cannot currently opt their children out of the objectionable lessons. Boardman wrote that “a constitutional violation is not likely or imminent” and thus “the plaintiffs are not likely to suffer imminent irreparable harm.”

In comments to The Washington Stand, Family Research Council’s Senior Fellow for Education Studies Meg Kilgannon warned, “It’s important to understand that this is an effort to develop curriculum to affirm diverse identities.” She noted that the LGBT-themed lessons are “not a separate unit (it’s not sex education)” but instead “sexual material that is meant to be incorporated in lessons as the teacher is instructing children in math, reading, science, or history.”

“That is what makes it so noxious — the incorporation of this material this way makes it impossible to remove the content or to remove children from the classes where it is taught,” Kilgannon explained. “The progressive administrative staff insist on incorporating this material in lessons exactly this way BECAUSE the parents don’t want it. It’s based on a belief that ‘LGBTQ children’ are likely to be oppressed by their religious families and that the school community should be the place they can ‘learn to be themselves.’”

Agee, in his majority opinion on Wednesday, wrote that, “given the Parents’ broad claims, the very high burden required to obtain a preliminary injunction, and the scant record before us, we are constrained to affirm the district court’s order denying a preliminary injunction.” The judge observed:

“While the specifics vary, the Parents all cite their religious views as spurring their desire to opt their children out of the Storybooks. Broadly speaking, they believe they have a religious duty to train their children in accord with their faiths on what it means to be male and female; the institution of marriage; human sexuality; and related themes. Their respective religious faiths direct and inform their views about these issues, and they want to maintain control over what, how, and when these matters are introduced to their children.”

The parents, Agee noted, argue that the MCPS decision not to provide notice of when LGBT lessons will be taught or offer a chance to opt their children out of the lessons “violates the free exercise of their religion and their due process right to direct their children’s education.”

Agee cited the U.S. Supreme Court to explain that a “preliminary injunction is an extraordinary remedy never awarded as of right,” and that in granting preliminary injunctions, courts must “‘balance the competing claims of injury,’ ‘consider the effect on each party,’ and ‘pay particular regard for the public consequences’ of issuing a preliminary injunction.” He added, “Plaintiffs appealing the denial of a preliminary injunction face an even higher burden as they must show that the district court abused its discretion in denying relief.”

“Considering [their] broad claim joined with the extremely limited record, we conclude the Parents have not shown a cognizable burden to support their free exercise claim,” Agee concluded. “As such, they have not shown a likelihood of succeeding on the merits. Accordingly, the district court did not err in denying them a preliminary injunction as to the free exercise claim.” Agee also acknowledged that LGBT-themed lessons were contradictory to the moral teachings of numerous faiths, but added that “simply hearing about other views does not necessarily exert pressure to believe or act differently than one’s religious faith requires.”

“For the reasons stated, we conclude that the Parents have not come forward at this stage with sufficient evidence of a cognizable burden on their free exercise rights to satisfy the requirements of a free exercise claim,” Agee declared. “This absence of proof means that they have not shown a likelihood of success on the merits and their free exercise claim cannot serve as a basis for obtaining a preliminary injunction.”

Joseph Backholm, a lawyer and FRC’s senior fellow for Biblical Worldview, told TWS, “I think the question presented in this case and questions like it are culturally defining. One difference between the Left and the Right these days is on the question of who is in charge of the children.”

He continued, “Either government exists to protect the inalienable rights of parents to raise their children, or it is government’s job to raise children, which means they have to protect children from their parents. Historically in the West, we have recognized that children have a right to their parents and that parents have a right to their children, but leftism, in its effort to create ideological homogeneity, believes parental rights are a threat to their revolution.”

A dissenting opinion was penned by Trump-appointed Judge A. Marvin Quattlebaum, Jr. “The parents have shown the board’s decision to deny religious opt-outs burdened these parents’ right to exercise their religion and direct the religious upbringing of their children by putting them to the choice of either compromising their religious beliefs or foregoing a public education for their children,” he wrote. “I would reverse the district court and enjoin the Montgomery County School Board of Education from denying religious opt-outs for instruction to K-5 children involving the texts.”

“Parents of certain K-5 Montgomery County school children object to their children being instructed with these books. These parents claim their faiths — Islam, Roman Catholicism and Ukrainian Orthodox — dictate that they, and not the Montgomery County schools, teach their children about sex, human sexuality, gender and family life,” Quattlebaum observed. “They also claim the messages from the books conflict with and undermine the sincerely held religious beliefs they seek to convey to their children.”

“Importantly, interfering or burdening the exercise of religion is not limited to direct coercion,” the dissenting judge wrote, contradicting Agee’s reasoning. Citing the Supreme Court, Quattlebaum continued, “When a state ‘conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists.’”

Referring to Boardman’s prior argument that mandatory LGBT-themed lessons did not impose a burden upon parents’ religious freedom, Quattlebaum wrote, “I disagree. For decades, the Supreme Court has made clear that ‘the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege.’” He continued:

“The parents claim their faith compels that they teach their children about sex, human sexuality, gender and family life. They also claim the messages from the books conflict with and undermine the sincerely held religious beliefs they hold and seek to convey to their children. And while the concerns include the content of the texts, they also include the responses the school board provided to teachers to use when children or parents questioned the texts. According to the parents, the suggested responses make clear that, in addition to using the books, schools will advocate for the themes and values in the texts and against any opposition to them. As a result, they claim that if they cannot opt their children out of the instruction involving the books, they must either forego a public education or violate their deeply held religious beliefs.”

Some of the “guidance” prescribed to teachers included scripted answers to questions. For example, if a child says, “Being _____ (gay, lesbian, queer, etc.) is wrong and not allowed in my religion,” school officials are encouraged to respond with some variation of “I understand that is what you believe, but not everyone believes that. We don’t have to understand or support a person’s identity to treat them with respect and kindness.” School officials are also instructed to “[d]isrupt the either/or thinking” of heterosexuality and say things such as “[A]ctually, people of any gender can like whoever they like. … How do you think it would make (character’s name) [feel] to hear you say that? Do you think it’s fair for people to decide for us who we can and can’t like?” If children ask what transgender means, school officials are told to respond, “When we’re born, people make a guess about our gender and label us ‘boy’ or ‘girl’ based on our body parts. Sometimes they’re right and sometimes they’re wrong. … Our body parts do not decide our gender. Our gender comes from our inside.”

“The board’s refusal to grant the parents’ requests for religious opt-outs to instruction with the books the board required be used to promote diversity and inclusivity to the LGBTQ+ community forces the parents to make a choice — either adhere to their faith or receive a free public education for their children,” Quattlebaum wrote. “They cannot do both.”

Quattlebaum also disagreed “with the majority’s conclusion that the parents have not produced enough evidence to establish that their free exercised rights have been burdened.” He explained, “The parents have met their burden. They have produced the books that no one disputes will be used to instruct their K-5 children. They produced declarations explaining in detail why the books conflict with their religious beliefs.” He noted that the parents also produced the internal MCPS guidance for school officials on discussing LGBT-themed lessons with children. “Recall those documents advise teachers that they can ‘[d]isrupt the either/or thinking by saying something like: actually, people of any gender can like whoever they like…’”

The dissenting judge wrote, “These parents’ faith dictates that they — not others — teach their children about sex, human sexuality, gender and family life. Their faiths dictate that they shield their children from teachings that contradict and undermine their religious views on those topics.” He added, “And no matter how you slice it, the board’s decision to deny religious opt-outs prevents the parents from exercising these aspects of their faith if they want their children to obtain a public education.”

“Based on Supreme Court precedent, the record here tells all we need to know,” Quattlebaum concluded. “The standard for a preliminary injunction is not ultimate success, but likelihood of success. … The parents have established they are likely to succeed in proving the board’s decisions burdened their First Amendment rights.”