GW Law Faculty Publications & Other Works
Document Type
Article
Publication Date
2025
Status
Forthcoming
Abstract
In Mahmoud v. Taylor, the Supreme Court upheld a Free Exercise Clause claim by parents in Montgomery County, Maryland, who sought to have their children (grades K–5) be excused from readings that contain LGBTQ characters and themes. The majority opinion by Justice Alito rests on a highly controversial reading of Wisconsin v. Yoder and is driven by an assertion that the parents’ religious beliefs would be undermined by the readings. Mahmoud represents an extraordinary departure from long-standing constitutional norms about the rights of parents of children in public schools.
Part I of the paper provides the doctrinal and historical backdrop to Mahmoud, which reflects the acute tension between a once-narrow understanding of Yoder and the post-Obergefell backlash against normalization of life for LGBTQ people.
Part II addresses the substance of Mahmoud. In proclaiming a right of parents to liberate their children from any instruction or exposure to ideas that may subvert the parents’ religious beliefs, the Court invites curricular challenges and opt-out claims across a broad range of subjects, not just sex and gender. Moreover, despite the relative youth of the children involved in Mahmoud, the principles of parental empowerment that it announces cannot be confined by the age of the students. Mahmoud will affect the entire curriculum in grades K–12. It may also, perhaps counterintuitively, buttress some claims that once were considered the province of the Establishment Clause.
Part III explores various ways that Mahmoud may immediately affect public-school decisions about curriculum. The principal vehicle for analysis is a new, post-decision regulation in Montgomery County on “Curriculum Transparency and Requests to be Excused from Instruction.” As this regulation reveals, school districts are now under great pressure to design and implement protocols for parents to receive notice and opt their children out of objectionable readings. These policies will disrupt the process of public education and in some cases alter its content considerably. In the wake of Mahmoud, education for life in a pluralistic democracy will suffer.
GW Paper Series
2025-52
SSRN Link
https://ssrn.com/abstract=5550278
Recommended Citation
Volume 24, FIRST AMENDMENT LAW REVIEW (Univ. of North Carolina), in Symposium, The Court’s Ever-Changing Religion Clause Jurisprudence: The Cases of the 2024-25 Term (forthcoming 2026).