Supreme Court Mulls LGBTQ Schoolbooks Amid Religious Rights Push

 The US Supreme Court will consider Tuesday whether it violates the Constitution for public elementary schools to use books with LGBTQ themes without letting parents opt out, in one of three cases this term that further tests the separation between religion and government.

(Bloomberg) -- The US Supreme Court will consider Tuesday whether it violates the Constitution for public elementary schools to use books with LGBTQ themes without letting parents opt out, in one of three cases this term that further tests the separation between religion and government.

In addition to parental rights, the disputes involve religious charter schools and state taxes on a faith-based charity. The array of hot-button arguments could see religious rights groups make fresh inroads at the expense of their secularist opponents.

Religious groups backing the cases believe the court’s 6-3 conservative majority — bolstered by President Donald Trump’s three first-term appointees — will continue an expansion of religious rights in business, education and other aspects of public life. Roughly a dozen cases in less than a decade have alarmed those who want to protect the long-held boundaries between government and religion, and they see recent rulings infringing on reproductive rights and protections for racial minorities and the LGBTQ community.

The justices are hearing the religious freedom arguments as the court has been fielding a spate of emergency requests over Trump’s agenda. Next week, they’ll hear arguments on whether states with public charter schools must let religious institutions join those programs. And the court could rule at any time in a third case, over whether a charitable arm of the Catholic Church is exempt from a state’s unemployment taxes.

The three cases focus on distinct but intertwined elements of the First Amendment: the establishment and free exercise clauses. The former bars government “establishment” of any religion, while the latter ensures the “free exercise” of such beliefs. 

Thomas Jefferson described the clauses in an 1802 letter as “building a wall of separation between church and State.” 

That phrase has been taken out of context in judicial decisions over the last century “and now people think there needs to be this brick wall where church and state never meet,” said John Bursch, senior counsel at the Alliance Defending Freedom, a Christian legal group that has been behind such high-profile cases as the 2022 overturning of nationwide abortion rights and is now representing the efforts to start a religious charter school in Oklahoma. The courts are now correcting that mistake, Bursch said.

In the past decade, the Supreme Court has been ramping up protections for religion, giving greater weight to the free exercise clause.

In 2022 alone, the court backed a high school football coach who lost his job for conducting post-game prayers with players on the 50-yard line, and barred Maine from excluding faith-based schools from a program that pays for private instruction in areas that lack public schools. And in a decision that hinged on the Constitution’s free speech clause, the court ruled that a Christian group should have been allowed to fly its flag over Boston’s City Hall, like other group. 

The shift has alarmed groups that work to keep government and religion separate.

“Religious extremists are trying to turn our sacred concept of freedom of religion on its head and use it to advance their desire for special power,” said Rachel Laser, president of the nonprofit Americans United for Separation of Church and State. “It’s a battle over whether America will be a pluralistic democracy or a god-ordained land for European Christians.”

Former appeals court judge Michael W. McConnell, now a Stanford Law School professor and senior fellow at the conservative-leaning Hoover Institution, said such concerns are overblown because most decisions will impact a narrow group. He also noted that many big decisions, like the flag case, were not decided completely along ideological lines and some were even unanimous.