During the oral arguments for 'Mahmoud v. Taylor', Supreme Court Justice Samuel Alito pressed an attorney about the underlying message of having LGBTQ+ books in public schools.
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00:00Mr. Schoenfeld, could I make sure I understand what you mean by coercion?
00:06You say in your brief that there are three things that cannot be done.
00:11The state cannot say you can't go to a private school or a religious school.
00:16The state cannot say you must affirm certain beliefs.
00:19And the state cannot say that unless you – that you're going to be disqualified from benefits because of your religious beliefs.
00:31Is that the universe?
00:33Those are the three situations in which there's coercion.
00:35No, Your Honor.
00:36I think that what this court said in Ling is that coercion is found when there's a tendency to coerce individuals into acting contrary to their religious beliefs.
00:44So, for example, in the –
00:46So it goes further than that.
00:48So suppose a school says, we're going to talk about same-sex marriage.
00:55And same-sex marriage is legal in Maryland, and it's a good thing.
00:59It's moral.
01:00It makes people happy.
01:02Same-sex couples form good families.
01:05They raise children.
01:06Now, there are those who disagree with that.
01:09Catholics, for example, they disagree with that.
01:12They think that it's not moral.
01:14But they're wrong, and they're bad.
01:17And anybody who doesn't accept that same-sex marriage is normal and just as good as opposite-sex marriage is not a good person.
01:25Now, what if that is what the school teaches students?
01:29I think that's absolutely coercion.
01:30I think where I found the line between exposure and coercion in your presentation, Justice Alito, was this is the state of the law in Maryland and elsewhere in the United States.
01:40People can fall in love, get married, even same-sex couples.
01:43Some people believe in it.
01:45Catholics don't believe in it.
01:46And then it stopped.
01:47And then it was directly derogatory of a particular set of religious beliefs.
01:51It was avowedly so, and that, I think, under any fair reading would give rise to a coercion or a discrimination claim.
01:57So you can – the school can teach students certain moral principles that are highly objectionable to parents, and that's okay?
02:10Yes.
02:10They can't opt out?
02:11That does not burden their free exercise.
02:14There's no constitutional requirement of completeness in these contexts.
02:17A school could easily teach that evolution is one theory, and it is the correct theory, and I don't think there's any constitutional problem with that.
02:25Certainly, if a student taking a test said, you've taught me about evolution.
02:30Here are the principles of evolution.
02:32I'm reciting them to you.
02:33But I don't agree with that, and my faith teaches me differently.
02:36No teacher would penalize the student for saying that.
02:39And if the teacher did, that would certainly give rise to a coercion.
02:42Now, let me – the opposite end of your spectrum of possibilities is exposure, which you talked about over and over.
02:50What does that mean?
02:51I would think that exposure – and we can take the example of same-sex marriage.
02:55Again, exposure is telling the students that there are a lot of people who marry a person of the opposite sex.
03:04There are also people who marry a person of the same sex.
03:08Period.
03:09Leave it at that.
03:10That's exposure.
03:10If you go beyond that, is it still exposure?
03:14It depends on the context.
03:15I mean, I think Uncle Bobby's wedding is teaching third graders or second graders precisely that.
03:20It's telling it through a story.
03:22And the fact that in that case, it's Uncle Bobby and Jamie rather than in Uncle Peter's Chinese-American wedding.
03:27It's Uncle Peter and his wife.
03:29Well, don't you think – and Justice Sotomayor and I were discussing this before.
03:34And we could have a – you know, we could have a book club and have a debate about how Uncle Bobby's marriage should be understood.
03:43But I think it clearly goes beyond that.
03:46It just – it doesn't just say, look, Uncle Bobby and Jamie are getting married.
03:50It expresses the idea subtly, but it expresses the idea this is a good thing.
03:57Mommy said, Chloe, I don't understand.
03:59Why is Uncle Bobby getting married?
04:02Bobby and Jamie love each other, said Mommy.
04:05When people – when grown-up people love each other that much, sometimes they get married.
04:09I mean, that's not something – subtly sending a message, this is a good thing.
04:14I think that's a way of a mother consoling her daughter who's annoyed that her favorite uncle is distracted and doesn't have time for her.
04:19But even if the message were some people are gay, some people get married, I don't think there's anything impermissibly normative about that.
04:29It is a story that is being used to teach students that just as in the 99 of the 100 books that we read about couples, it's a man and a woman, there also may be a man and a man.
04:38I mean, why is the Montgomery County Board of Education in this argument running away from what they clearly want to say?
04:48They have a view that they want to express on these subjects, and maybe it's a very good view, but they have a definite view, and that's the whole point of this curriculum, is it not?
04:59I'm not running away from anything the board has used to defend this.
05:02I think what's in the record is that the board wants to teach civility and respect for difference in the classroom.
05:07There is obviously an incidental message in some of these books that these life choices and these lifestyles are worthy of respect.
05:16I don't know how you can teach students to respect each other without teaching that.
05:20If the book were about, you know, Uncle Bobby's wedding, they get married, and the rest of it is that was awful, then there would be a serious equal protection violation in the presentation of that curriculum.
05:30So the incidental message that these things ought to be normalized and treated with respect, I think, is simply part of the work that the school is doing in cultivating respect in a pluralistic school.
05:40Well, the plaintiffs here are not asking the school to change its curriculum.
05:45They're just saying, look, we want out.
05:47Why isn't that feasible?
05:49What is the big deal about allowing them to opt out of this?
05:52So a couple of answers.
05:55I think on the facts of this case, we have the natural experiment of the schools permitting these opt-outs and then finding that it was not administrable.
06:03It wasn't true in every school.
06:04Well, why is it not administrable?
06:06You have – they're able to opt out of the health class, right?
06:09The health class is taught discreetly.
06:11There's a meeting, mandatory meeting for all parents where they are told exactly what's going to be taught in it.
06:17And they're given the option of opting out of the unit of instruction, not the particular –
06:22Well, that's how you define the unit of instruction.
06:25You could define the unit of instruction to include the reading of these storybooks.
06:30And that's not compelled as a matter of Maryland state law.
06:32The Maryland state –
06:32It's not compelled as a matter of state law, but why should it not be compelled as a matter of the free exercise clause of the First Amendment?
06:40I don't think –
06:40There's nothing – what is infeasible about doing that?
06:43So, again, I think the experience of the schools with respect to these five books showed that it was infeasible.
06:48And let me give you an example.
06:50Let's say the school, an exquisitely competent and well-resourced school, is able to say,
06:55On Tuesday at 9 o'clock, we're going to read Uncle Bobby's Wedding.
06:57We're going to make arrangements for alternative space.
06:59We're going to give suitable supervision for our six-year-olds.
07:03And we're going to give them an alternative assignment that accomplishes the same ELA goals.
07:07Let's say that happens, right?
07:10That they were able to pull off.
07:11The next week, someone says, that was my favorite book ever.
07:14I'm going to pull it off the shelf, and I'm going to ask Alan to sit down and read it with me.
07:18What happens then?
07:19The teacher can't simply summon a librarian to come to the school, say those were the kids who opted out of that lesson.
07:24Well, I don't think you're really answering my question.
07:27Why can't this all be put?
07:29We're going to read Uncle Bobby's Wedding and these other books, but we're going to read it during a period of time that includes the health class.
07:36And children are already able to opt out of that, so they can opt out of reading these books.
07:42I think there's no constitutional obligation to treat these books that introduce people to LGBT characters in a curriculum that is meant to teach about different matters.
07:51I'm not.
07:51I'm not.
07:51I'm not.