A Religious Right to Bigotry

In the 1980s, parents in a Tennessee school district objected to readings that offended their religious traditions. This included themes of magical powers in Shakespeare’s Macbeth. The Sixth Circuit held that parents have no free speech or religion rights to control what schools teach. In the early 2000s, parents in Massachusetts, where marriage equality had just been implemented, demanded that the school not inform their children that gay people existed or get married. The First Circuit rejected this argument. In the 2010s, a Christian family claimed that instructing their daughter about Islam and its basic belief structure in a World History course was unconstitutional. The Fourth Circuit rejected this argument. For decades conservative Christians have demanded that their religious beliefs must control what public schools teach. Until today, the courts have refused such a demand. Public education is meant to prepare the next generation of citizens to live and participate in a complicated multicultural world. Well, that was until today when SCOTUS decided that schools must accommodate religious bigotry.

I discussed the background of Mahmoud v. Taylor a few months ago. The final result is as bad as I expected. Let me admit that this is a quick reading of the Court’s opinion, so further reading may find nuances missing here. But the gist of things is that Justice Alito’s opinion takes the position that religious parents have a constitutional right to opt out their students from any mention of queer people existing. This is bad enough but the opinion goes so much further: “A government burdens the religious exercise of parents when it requires them to submit their children to instruction that poses ‘a very real threat of undermining’ the religious beliefs andpractices that the parents wish to instill.’” This means that any instruction that offends any religious belief - or pretend religious belief, after all lets not forget the number of people who just made up religious objections to vaccinations. Evolution teaches the basic reality of changes to species and now students must be opted out of ever learning this. The big bang, out. Hey what about interracial marriage, more than a few religions have a history there. Well, the Court doesn’t want to talk about that.

The entire basis for this decision is a special reading of the famous Wisconsin v. Yoder (1972) where the Court held that the Amish must be allowed to opt their children out of public schools at 14 rather than the legal age of 16. Now I’ll admit now, I fucking hate Yoder. It’s an absurd opinion based not on law but on the Court’s fawning belief that the Amish are a wonderful people; the opinion is full of silly statements about how much better the Amish are than the rest of us. As I ask students, what would we say if the Fundamentalist Mormon cults that live here in Utah attempted to opt out their girls because their religious education didn’t require it. Unsurprisingly, I’ve yet to meet the person who buys that claim. Yoder has generally been read as a unique exemption for the Amish and no other. Well, not anymore.

You see, Justice Alito really hates queer people and the fact that they have rights. So his opinion is based as much in that as anything else. He runs through the books used in K-5 and notes that “the books are unmistakably normative.” Gasp, shock! No kidding, literally every piece of fiction ever written is normative. They depict queer people as existing and deserving the right to exist. That, to Alito, “carr[ies] with them ‘a very real threat of undermining’ the religious beliefs that the parents wish to instill in their children,” namely that queer people don’t really exist and that they have no rights. He repeatedly brings up a suggested talking point about what to do if a teacher has a student who announces that two men can’t marry; the teacher is told to respond that two men can legally marry in the U.S. This is a statement of fact, it’s one that Alito hates, but it simply is. But Alito treats it as denigrating the parent’s faith by exposing to the child that the real world doesn’t follow these teachings.

Ultimately, Alito’s opinion pulls a sneaky move. You see, since 1990, the constitutional standard has been that laws of general applicability do not have to pass any high burden simply because they may run against religious belief. The policy here is clearly a policy of generally applicability. All students receive the same instruction and the same opt outs are prevented to them. Alito makes much of the fact that there is a legal opt out, imposed by the state legislature, to sex education. This is fundamentally different because that opt out only applies to the discrete instruction framed as sex education. For example, if students read Romeo and Juliet and have a discussion about sex no student is allowed to opt out of that. Alito invokes a made up rule: this case looks like Yoder and Yoder doesn’t have to obey this rule so he won’t either. It’s a goofy legal two step but there is justification (it’s buried in some really silly law).

So the result is what I expected: parents have a constitutional right to their bigotry that the school is presumptively required to support. As I noted in my prior post, lawyers will tell you that this is only a preliminary decision and that the school can still defend its policy. Well Alito’s opinion basically leaves no room for that now, at least as it applies to queer people. This was Alito’s objection to the recognition of marriage equality: people would call religious dissenters bigots. As if bigotry is more morally justified if one’s religious beliefs require it. He thinks it’s unjustified and unfair and this is his revenge.

But, of course, it cannot be constrained to this issue. What about the classic Christian doctrines that were long used to support racial inferiority and segregation? Can a student object to presentations of racial equality or interracial marriage? Of course, though folks like Alito clearly suggests that such an argument isn’t really religious but anti-queer bigotry is. What about an atheist like me? Am I allowed to object to a book and demand an opt out any time the classic heteronormative, Christian family is depicted in literature, which is like 99+% of literature students will ever see? Somehow I doubt it. Nope, this is a decision that schools have no right to LGBTQ inclusive education because any attempt to do so would be so hampered by frivolous opt out demands that it would become impossible.