On June 27, the court delivered an important result for parental rights and religious liberty in Mahmoud v. Taylor. In one of the higher-profile opinions this term, a 6-3 majority sided with a group of religious parents against the attempted imposition of LGBT ideology on public school children.
The court held that the Montgomery County, Maryland, school district’s “introduction of the ‘LGBTQ+-inclusive’ storybooks, combined with its decision to withhold notice to parents and to forbid opt outs, substantially interferes with the religious development of petitioners’ children and imposes the kind of burden on religious exercise that Yoder [a 1972 Supreme Court precedent] found unacceptable.”
The court was rightly troubled that the LGBT books being imposed on elementary school children were not merely a neutral introduction of concepts. First of all, there is no neutral introduction of ideas by teachers to young children, because young children are impressionable and so everything taught to young children is formative. Further, after looking in excruciating detail at the content of the curricula at issue, the court found that “these books impose upon children a set of values and beliefs that are ‘hostile’ to their parents’ religious beliefs.”
Because the parents are likely to prevail with a successful religious exercise claim when this case is ultimately decided by the trial court, the Supreme Court ordered that the school must discontinue its mandatory LGBT propaganda regime while the case remains pending: “[T]he Board should be ordered to notify [parents] in advance whenever one of the books in question or any other similar book is to be used in any way and to allow them to have their children excused from that instruction.”
Hiding beneath this religious exercise challenge, however, is an issue whose day has come: the question of parental rights and who controls the formation of children. Mahmoud reveals the two very different views of the role of parents and of government institutions like public schools in the formation and education of kids.
Justice Alito’s majority opinion clearly recognizes the primary right of parents to form their children, especially in matters of religious belief. “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 and practices that the parents wish to instill. And a government cannot condition the benefit of free public education on parents’ acceptance of such instruction” (internal citations omitted). In this (proper and traditional) view, parents decide the beliefs and practices that children will be exposed to, and schools cannot override those decisions.
Justice Sotomayor’s dissent paints a very different picture:
Public schools, this Court has said, are “at once the symbol of our democracy and the most pervasive means for promoting our common destiny.” … They offer to children of all faiths and backgrounds an education and an opportunity to practice living in our multicultural society. That experience is critical to our Nation’s civic vitality. Yet it will become a mere memory if children must be insulated from exposure to ideas and concepts that may conflict with their parents’ religious beliefs. Today’s ruling ushers in that new reality.
There are two problematic strains of thought here. First, the dissent envisions public schools, not parents, as the primary means by which children are formed. The opinion speaks as if schools, not families, are the fundamental way that children are introduced to society and taught how to be citizens. This view has become prevalent on the left today and has made its way all the way up to the Supreme Court.
Second, Sotomayor unbelievably speaks as if her view is the traditional and accepted one. In Sotomayor’s world, states are the primary formers of children, and the idea that parents rather than schools may decide the ideas to which their children are exposed ushers in a “new reality.” Parents making these decisions, of course, does not usher in a new reality but restores the way in which societies have always functioned. Sotomayor’s rewriting of history acts as if parents being the primary caregivers, educators, and decision-makers for their children is a novelty rather than a natural reality.
Parental rights is not a novel topic; many conservative intellectuals have made important contributions to the subject recently — Robby George in particular is worth reading closely. But one interesting aspect of the parental rights question has not received enough attention: Why are parental rights not explicitly protected in the American legal tradition? In particular, why does the Constitution not include an explicit right of parents to make major decisions for their children over and above government institutions?
From William Blackstone to John Adams and Thomas Jefferson, the founding-era Anglo-American legal tradition clearly affirmed that parents have the primary duty to protect, care for, and educate their children. And because rights stem from duties, parental rights over children are indeed natural rights. So why wasn’t this reality constitutionalized? Perhaps it simply wasn’t necessary.
Why does our modern society require explicit laws protecting parental rights? Because there are state-run institutions that now compete with parents for the care, control, and education of children. Those institutions largely did not exist at the time of the founding in anything like their current form.
There was no fear of mandatory public education overriding the desires of parents, because there was no mandatory public education. There were no professionalized police forces examining claims of child abuse or neglect, no child protective service agencies. There were no mandated-reporter laws encouraging people to report parents for violating the secular orthodoxy of the day in the ways they raise and educate their children.
In the era of the American founding, there was a great concern for freedom of speech, religion, assembly, and the press to protect a robust public discourse and a healthy citizenry. There was a fear of standing armies and therefore a desire to maintain an armed populace. The abuses of the British government led to protections against unreasonable searches and seizures, cruel and unusual punishment, and trials without juries. In that monumental historical moment, there was no conceivable threat to parents caring for and educating their children properly and freely. Therefore, it is unsurprising that parental rights did not find their way into the legal texts enacted during the American founding.
Times have changed, but the natural law and the rights and duties of parents have not. Parents have the same primary duty, and therefore the right, to make decisions involving the care, control, and education of their children without undue interference from state actors or anyone else. Yet the legal and institutional landscapes have changed quite a bit over the last two centuries. In our age of compulsory education, mandated reporting, and a thick network of institutions intimately involved in the lives of children and families, legal clarification is necessary.
If positive laws were not previously necessary to spell out the rights of parents over the claims of government actors, that is no longer the case. Cases like Mahmoud have begun to bring needed attention to parental rights. Whether through Supreme Court precedent, statutes, or even constitutional amendments, ours is a parental rights moment that demands action to allow parents the right to do their duty and raise their children.
Frank DeVito is Senior Counsel and Director of Content at the Napa Legal Institute. His work has previously been published in The American Conservative, the Federalist, Public Discourse, the Daily Wire, First Things, and several other publications. He lives in eastern Pennsylvania with his wife and children. The views expressed in this article are those of the author and not necessarily his employer.
