"Let them eat cake."
.... Mahmoud v. Taylor and the abandonment of liberal ideals.
The First Amendment and Family Rights scored a huge victory in the Supreme Court today as a 6-3 majority determined that religious parents in Montgomery County, Maryland, have the right to opt out of public school curricula that, they believe, is intended to indoctrinate their young children regarding beliefs on gender ideology and same-sex marriage. The opinion, Mahmoud v. Taylor, is available here.
As the majority found, a group of Muslim and Christian parents objected to the use in their local public schools of books and materials that pushed beliefs on their children contrary to their core religious beliefs and their rights to raise the children in those religious traditions. The parents asked that their children be allowed to opt out from participating in those particular classes, but the public school authorities denied them that option. In keeping with precedents such as Wisconsin v. Yoder, the Court found that the parents and children cannot be forced to give up their family religious values and parental rights to obtain the governmental benefit of a free public education.
Given the Court’s free exercise and parental rights jurisprudence over the past 100 years or so, the outcome should never have been in question. What is surprising is the vehemence of the dissent, led by Justice Sotomayor, and its radical departure from the liberal body of jurisprudence that formed in the early 20th century. Over those many years, the Court’s majority saw itself as a defender of minority rights and as a bulwark against the abuses of majoritarian rule.
Sotomayor’s dissent in Mahmoud, joined by Justices Kagan and Jackson, would have rejected the rights of these parents and children as nothing deserving of protection. If the parents didn’t want to be told that children can change their gender and that same-sex marriage should be celebrated by all, she wrote, the parents could choose to homeschool their children or send them to private school. Government has the right to expose children to “ideas and concepts that may conflict with their parents’ religious beliefs,” Sotomayor wrote. And, most alarmingly, the dissenters argued that if the parents didn’t like the curriculum, they should vote out the school board — ignoring that these parents had protested at numerous school board meetings, only to have their elected representatives force this decision on them and their children with no option to skip the lessons.
In other words, “Let them eat cake.”
The dissent, and particularly its last point, is disturbing because it rejects a long-held value central to western democracy: majority rule with respect for and protection of minority rights. The Supreme Court has long recognized the need to strike this balance. Take, for instance, one of the most famous footnotes in Supreme Court history: footnote 4 to United States v. Carolene Products (1938), where the Court mentioned as an aside what has become a central principle of judicial interpretation that has ensured the protection of minorities in this nation:
“Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, Pierce v. Society of Sisters, 268 U.S. 510, or national, Meyer v. Nebraska, 262 U.S. 390; Bartels v. Iowa, 262 U.S. 404; Farrington v. Tokushige, 273 U.S. 284, or racial minorities, Nixon v. Herndon, supra; Nixon v. Condon, supra: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. Compare McCulloch v. Maryland, 4 Wheat. 316, 428; South Carolina v. Barnwell Bros., 303 U.S. 177, 184, n. 2, and cases cited.”
A long time ago when I was in law school, I had the opportunity to write a law review article on a new Supreme Court case that had just come out: Employment Division v. Smith (1990), involving Native Americans who were denied government benefits because they tested positive for the use of peyote — a drug central to their native religious practices. Justice Scalia opined for a divided court that the mere fact a general law prohibiting drug use impacted these individual’s religious practices gave them no basis for complaint. An appalled Congress, with a Democratic Majority in both houses and a Democratic President, quickly passed the Religious Freedom Restoration Act to reverse the opinion’s effect and ensure courts would continue to closely scrutinize impacts on the rights of individuals to religious freedom.
Now, 35 years later, it’s the Court’s “progressives” who are taking the position that if those in government power who want something — in this case, to use the public schools to indoctrinate children in a preferred belief system — the rights of minorities who have principled reasons for opposing that power don’t matter.
My, how times have changed.
In other news, briefly:
TOP HEADLINE FROM THE NEW YORK TIMES’ ETHICIST COLUMN: The Ethicist: Do I need to subscribe to my friend’s Substack newsletter? The answer is yes!!
Glad to see that North Carolina has recognized the need to exercise more control over its county child welfare agencies.
Florida is piloting professional foster parenting, especially for children and youth with complex behavioral needs.
I recommend this podcast about a Munchausen by Proxy (OK, Factitious Disorder Imposed On Another) case that originated here in Georgia.
The Department of Justice has sued the State of Washington over its recent law requiring clergy to report child abuse.
Looks like HHS has removed hundreds of unaccompanied minors who were placed with sponsors back to ORR custody.
Ohio legislators are looking at requiring mandated reporters to contact both CPS and law enforcement.
New York has banned anonymous child abuse reports.
New Child-Friendly Justice Tool unveiled in Europe.
CASA director in Los Angeles and her organization part ways.