HOSTS

PETER SHAMSHIRI

RHIANNON HAMAM

MICHAEL LIROFF

[ARCHIVE CLIP, Supreme Court: We will hear argument first this morning in case 24-297 Mahmoud v. Taylor.]

Leon Neyfakh: Hey, everyone. This is Leon from Prologue Projects. On this episode of 5-4, Peter, Rhiannon and Michael are talking about Mahmoud v. Taylor, a recent case ostensibly about the free exercise of religion for parents of students in public school. In 2022, the Montgomery County Public Schools in Maryland approved LGBTQ-inclusive books for its K-5 English curriculum. Three families sued the school district, arguing that requiring their children to read books with LGBTQ themes contradicted their religious beliefs, and that the school district had violated their right to religious freedom. The Supreme Court ruled in the family's favor, stating that the school district infringed on their free exercise of religion by requiring participation in a curriculum that conflicted with their beliefs.

[ARCHIVE CLIP: It's another example of the courts using religion to hide bigotry. We can't hide our children away from the reality of the people in the community that exist today, especially marginalized communities.]

Leon: This is 5-4, a podcast about how much the Supreme Court sucks.

Peter Shamshiri: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have shredded our civil liberties like Donald Trump shredding the Epstein files. I'm Peter. I'm here with Rhiannon.

Rhiannon Hamam: Hey.

Peter: And Michael.

Michael Liroff: Look, the man has to cover up his crimes. He's got things to do.

Rhiannon: There's shredding to be done.

Michael: Yes.

Peter: Yeah. It's so important to cover up your crimes.

Rhiannon: It's high on the to-do list right now. He's got a little star next to it, you know?

Michael: Yes.

Rhiannon: Underlined. Don't forget this. On the golden toilet at Mar-A-Lago, be shredding at the same time.

Peter: And this is one of the unwritten rules of politics: You shouldn't foster a cult of anti-pedophile fanatics if you're a pedophile.

Rhiannon: That's right. Yeah.

Peter: I've always said that. I think Chris Matthews should have put it in Hardball.

Rhiannon: Like the number one rule of fight club or whatever, you know?

Peter: Absolutely.

Rhiannon: Fundamental principles. But hey, guys. Before we get any further, we should tell listeners about exciting news.

Peter: Oh, yes.

Rhiannon: Exciting 5-4 merch news. News in merch. We have brand new merch: t-shirts, stickers, mugs, all kinds of stuff. We worked with a couple of really talented artists, and we have some new designs. You know, the classic stuff, "Scalia is dead" and "I dissent" with a little Molotov cocktail ...

Peter: Allegedly.

Rhiannon: ... thing, reference. Those are still there in the merch shop, but we have some new stuff as well. There are meteors involved. Nature is involved. Insults are involved. And so ...

Peter: Yeah, it's beautiful stuff, I have to say. And ...

Michael: Very pleased with these designs.

Peter: It's the first merch drop in a few years. And I have to say, we continue to have the best merch game in the podcast game.

Rhiannon: For sure.

Peter: We're the best to ever do it. This is the pinnacle of podcast merch. There's no question.

Rhiannon: No, no. For sure. What Supreme Court podcast has merch like this, you know?

Peter: None of them. None of them do.

Rhiannon: Not a single one.

Michael: No.

Rhiannon: So people should check out the merch at our website. You can go to FiveFourPod.com, click on "merch." That takes you to the Dashery shop. Everything is there.

Michael: It is a shame we don't have Epstein merch, though. Then it would be perfect.

Peter: Yeah, we couldn't do Epstein merch due to disagreement about whether it should be pro- or anti- among the hosts.

Michael: [laughs]

Peter: All right. Today's case, Mahmoud V. Taylor. This is a case about the free exercise of religion, specifically the rights of parents with kids in public school to opt their kids out of instruction that violates their religious beliefs. This case dropped just a few weeks ago, one of the big cases at the end of the term. A school district in Montgomery County, Maryland, implemented an elementary school curriculum that included several books with LGBT characters or themes. The district also provided guidelines for teachers who received questions—and perhaps complaints—from students about the content. Some parents objected on religious grounds and sued, arguing that their right to freely exercise their religion should give them the option to opt their children out of instruction. And the Supreme Court in a six-to-three decision agreed with them. And I have to say, folks, of the Supreme Court opinions we've read, and it's been many—literally hundreds—this one had the most pictures.

Rhiannon: [laughs]

Peter: There's, like, 50 pages of ...

Rhiannon: Just kids books.

Peter: ... pictures of children's books. Just like pages out of children's story books.

Rhiannon: Yeah. And one side is being like, "Look at this disgusting children indoctrination." And the other side is being like, "Look at this beautiful, inclusive curriculum." [laughs] Yeah, it's really not more complicated or much more detailed than what Peter said. The Montgomery County School District in Maryland introduced LGBT-inclusive books in their K-5 ELA curriculum. This is English Language Arts, part of literacy curriculum in elementary schools. And originally, the school system did provide for an opt-out mechanism. Parents would be notified that this new curriculum was being introduced, and they were given the option to opt their children out of that instruction.

Rhiannon: Now what happened with the opt-out option is that a ton of parents used the opt-out option and wanted to opt their kids out. And the Montgomery County School District said, "You know what? We're introducing this as part—as an essential part of our literacy curriculum, and also having this many opt outs actually kind of disrupts literacy teaching and disrupts the classroom environment." Like, imagine then you're trying to do a sort of like alternative curriculum, or figure out how that time is used for all of the kids whose parents opted them out of the inclusive curriculum. So the school board, the school district takes the opt-out option away and says, "You know what? This is just gonna be part of mandatory curriculum. LGBTQ themes through LGBT-inclusive books and discussions are just going to be for all the children in our schools."

Rhiannon: So let's talk a little bit about these "offensive and blasphemous" books. There is a book where a prince marries a knight. A book where a puppy attends the pride parade. Books where individual children sort of contend with and think about their gender identities. I'm gonna read a little bit from some of these books—one about gender identity. "Some may be confused that a kid like me can wear what I want and be proud and carefree. My friends defend my choices and place, a bathroom like all rooms should be a safe space." Another where a child, Chloe, her uncles are getting married. "Mummy," said Chloe, "I don't understand. Why is Uncle Bobby getting married?" "Bobby and Jamie love each other," said Mummy. "When grown-up people love each other that much, sometimes they get married."

Peter: Hmm.

Michael: Hmm.

Rhiannon: Do you guys feel scared? Do you guys feel the devil?

Peter: Well, it's getting a little political.

Michael: I feel myself becoming trans.

Rhiannon: Do you feel Satan maybe?

Michael: I'm being trans-ed as we speak.

Rhiannon: Yeah. So this is the material, the curriculum we're talking about. And, you know, we should be clear, this is curriculum within the total body of literacy curriculum. It's not like they were only reading gay books, you know, and trans books.

Peter: They had straight books, too. I'm sure.

Rhiannon: [laughs] Right, there are straight books for sure.

Peter: Berenstain Bears.

Rhiannon: Yeah.

Peter: Classic straight book.

Rhiannon: Yeah. And as part of these classroom discussions, as part of this focus in the literacy curriculum, teachers also had some guidelines about how to lead these discussions, about how to answer children's questions that came up. Guidelines like: if a child said, "Oh, no. Like, a boy can't be a girl," teachers were given guidelines that said, like, you can, you know, start a response by saying, like, "Hey, that's hurtful," and talking about why that is. Now when the opt-out provision was taken away by the school district, that's when this lawsuit was filed. Groups of parents representing sort of like a diverse array of religions, Muslim parents, Catholic, Greek Orthodox, among others—I saw in some writings that Jewish parents also joined the lawsuit—they sued and said, "We should have proper notice. We should have an opt-out choice in this curriculum because this focus on LGBT themes, that kind of inclusion in our children's public school education, that violates our free exercise of our religion. That violates our ability to freely exercise our religion and raise our children with our religious beliefs." So these parents in Montgomery County sued the school district, and that's how we get to the Supreme Court.

Peter: Yeah. So let's talk about the law here. There are two dueling principles in this case. One is the idea that parents have a right to direct the religious upbringing of their children. The seminal case on that is from 1972, Wisconsin v. Yoder, where Amish families had said that compulsory education beyond the eighth grade violated their religious liberty. And the court agreed. Wisconsin had this law that said you have to go to school until you're 16, and the Amish said, "Well, what about 14, you know?"

Rhiannon: Yeah.

Peter: And the court said, "Okay." But then there's another principle established in a 1990 case called Employment Division v. Smith, which says that just because a law burdens religion does not mean it violates the Constitution. What violates the Constitution is when religion is targeted or singled out. In legal speak, if a law is "neutral and generally applicable," it won't violate anyone's freedom of religion. So if there's a law that says everyone has to do X, Y and Z, and some religious people say, "Well, that sort of violates my religion. I don't like that," generally speaking, that law is actually gonna be fine because it's neutral and generally applicable, right? As long as it's not targeting religion in some way, it's fine. Now Employment Division v. Smith was a Scalia decision, but it was very much of a different time, and conservatives often hate it now because they would prefer a world where there are essentially legal carve outs for religious life and practice, right?

Michael: And important context here is, like, the religious carve out being asked for in Employment Division v. Smith was to use psychedelic drugs in a religious ritual. And Scalia was a big drug warrior.

Peter: Right.

Michael: And was big into the war on drugs. And so you can see how, you know, it shook out this way.

Peter: Right. So Sam Alito writes the majority here, and he says that the Constitution guarantees these parents the right to opt out of this instruction. He says that requiring the children to read the books would, quote, "substantially interfere with their religious development." Now first he analyzes the storybooks themselves. And folks, if there's a better metaphor for the current state of American law than the justices of the Supreme Court trying to analyze a bunch of books for literal babies I have not found it.

Michael: [laughs]

Rhiannon: Yeah.

Peter: Here is a long Alito quote. He says, quote, "Take, for example, the message sent by the books concerning same-sex marriage. The book Prince and Knight clearly conveys the message that same-sex marriage should be accepted by all as a cause for celebration. The young reader is guided to feel distressed at the prince's failure to find a princess, and then to celebrate when the prince meets his male partner. The book relates that on the two men's wedding day, the air filled with cheer and laughter, for the prince and his shining knight would live happily ever after. Those celebrating the same-sex wedding are not just family members and close friends, but the entire kingdom. For young children, to whom this and the other story books are targeted, such celebration is liable to be processed as having moral connotations. If this same-sex marriage makes everyone happy and leads to joyous celebration by all, doesn't that mean it is in every respect a good thing?" Hmm.

Michael: This was unreal. I was, like, floored reading this.

Peter: I think that what he's saying is that this would be okay constitutionally if there was one homophobe in the kingdom.

Michael: [laughs]

Peter: And I think that's why every children's book, in order to be constitutionally acceptable, it needs one homophobe, and it needs to treat him with respect. That's what I think Alito is getting at here. That's what I think is missing from these books, realistically.

Rhiannon: It's so weird to read in this sort of like impermissible what he calls moral connotation to LGBT books or themes and act like that's the only moral connotation in children's books. Like, children's books have moral connotations.

Michael: Right.

Peter: Right.

Rhiannon: Like, a fucking kids book about the United States flag and red, white and blue has moral connotation, you know?

Peter: Right. Also, just to be clear, the reason that the entire kingdom has to celebrate a royal wedding is because it's royal, not because it's gay. Not because it's gay. It's because if you don't celebrate the royal wedding, then you are rejecting the monarchy. It's a crime.

Rhiannon: You'll be beheaded.

Peter: They don't put that in the book, but it's true.

Rhiannon: Right. Yeah, you'll be thrown in the Bastille. Every Disney movie ends with a marriage that the whole kingdom celebrates.

Peter: All right. Then there's Uncle Bobby's Wedding, where two guys get married and everyone is excited for them, right? Alito says, quote, "The book's main character, Chloe, does not share this excitement. 'I don't understand,' she exclaims. 'Why is Uncle Bobby getting married?' The book is coy about the precise reason for Chloe's question, but the question is used to tee up a direct message to young readers. 'Bobby and Jamie love each other,' says Mummy. 'When grown-up people love each other that much, sometimes they get married.' The book therefore presents a specific, if subtle, message about marriage. It asserts that two people can get married, regardless of whether they are of the same or opposite sex, so long as they love each other." Which, by the way, is—we're veering into objective fact territory with that one. It's like, two people can get married.

Michael: This is the law of the land.

Peter: Yeah.

Rhiannon: [laughs]

Peter: You know, if of legal age, et cetera.

Michael: Yes.

Peter: We're starting to just get into the realm of, like, 100 percent facts. Then there are the books on gender identity, one of which asks the reader which pronouns apply to them, and the other features a biological female who identifies as a boy. At this point, Alito is absolutely fuming. He's losing his fucking mind. Now in general, Alito's point here is that these books aren't just referencing gay marriage, for example, they are pushing a normative message about gay marriage. And he's talking about it like a complete freak, but I actually think that that basic point is correct. The books are, in fact, advocating for the tolerance and inclusion of LGBT people, I think.

Michael: Absolutely.

Rhiannon: Yes.

Peter: You know, that's the purpose of them, and to some degree, the purpose of the curriculum. So Alito says that altogether these books, quote, "Impose upon children a set of values and beliefs that are hostile to their parents' religious beliefs." He basically says, this is like Yoder, the Amish case. But in my mind, it's a really awkward comparison because in Yoder, they were arguing that, like, multiple years of secular schooling would undermine their religious beliefs, right? That seems a little more defensible than the idea that, like, a handful of books could, quote, "substantially interfere with the parents' ability to, like, raise their child per their religion." Right? Like, what we're talking about is a few days of instruction in this case, right?

Peter: I don't see how you can just be like, "Yeah, this is like Yoder." It's just not like that case at all. That case was about, like, the holistic output of secular education over several years. I'm not even entirely sure that I agree with Yoder, but to make that comparison, like, this is kind of like that, I don't think so. And the other thing about Yoder was that it was about, like, this very specific community.

Michael: Right.

Peter: Right? The Amish, one of the most unique religious communities in the country, and a very insular community that sort of like relies on that insularity to propagate their religion. And so just to draw this line, it's being like, yeah, that's sort of like the Amish not wanting to mingle with the rest of secular society is a lot like me not wanting to read this gay book. Like, I don't think so. I don't think that's right, actually.

Michael: Right, yeah.

Peter: He also says that these books go beyond advocating for mutual respect. The school district has basically said, like, look, all we're doing really is trying to put out a curriculum that advocates for the respect of LGBT people. I think he's correct in some limited cases. The book that asks readers what their pronouns are, that's having the child engage with the question of their gender identity, which I think you could argue is going beyond, like, mutual respect. But he mashes that together with the gay marriage books, which as far as I can tell are just about literally respect. Like, respect your gay uncles. Like, that's the whole point of that book. And I don't see how he could say that that is going beyond mutual respect. I think that what's happening here is that Sam Alito's idea of respecting LGBT people might deviate from traditional definitions of the word "respect." you know? I sort of feel like that's what's happening there.

Michael: Yeah, I think that's right. His idea of respect is, "Well, look, we won't, like, lock you up in a torture dungeon like you deserve."

Peter: Yeah. "You disgust me. You shouldn't be able to get married, but in this very general abstract way, I respect you."

Michael: Right. Right. No, I think it's worth unpacking a little bit the religious beliefs here because—that Alito is imagining, right? That's animating this because, like, again, like the gay marriage books, right? It's the plot, the detailed analysis he does is just like, "Two gay guys get married and everybody's happy. If this interferes with your religious beliefs, like, your religious beliefs are either, one, that gay people don't exist, two, that they exist, but there's, like, something deviant and bad about them that we should reject, and three, that they shouldn't have any, like, normal social, you know, participation like marriage. And people shouldn't celebrate that." And if those are your religious beliefs, frankly, I don't think that the public education should give a shit about that. Like, simply, there are churches that are anti-Semitic.

Peter: Yeah.

Michael: That doesn't mean you can't have kids' books where the main character has a Jewish star and is celebrated. Like's that's—like, sorry.

Peter: I mean, that's the fundamental problem here. And you end up dancing around it a bit, but there is, like, this real question of why the Constitution should tolerate this level of bigotry. I actually think that the solution to it is, like, relatively obvious from a legal perspective, which is like, there are equal protection concerns here, too.

Michael: Right.

Peter: It's not just the free exercise of religion that matters here. What about the equal protection of LGBT people, right? You need to factor that in. You can't be treating the tolerance of LGBT people as if it's like this separate thing that matters less than the tolerance of straight people or other religions or whatever.

Peter: All right. Alito then talks about some of the guidance provided to teachers if children object to any of this instruction or raise questions about the instruction. If a child says two men can't get married, quote, "Teachers are encouraged to respond, 'Two men who love each other can decide they want to get married. There are so many different kinds of families and ways to be a family.'" Again, veering into fact.

Michael: [laughs]

Peter: Pretty much objectively true. If a child says a boy can't become a girl, the teacher is encouraged to say the comment is hurtful. This particular piece of guidance is what the conservatives hone in on. Thomas mentions it in his concurrence, too. Alito characterizes this as, quote, "Encouraging the teachers to correct the children and accuse them of being hurtful when they express a degree of religious confusion." But hold on, right? The child did not express religious confusion.

Michael: Yeah.

Peter: The child made a comment about whether transgender people are real, right? If the child said, "My religion doesn't believe that people can switch genders," that would be a different thing. That might be religious confusion, and then the teacher might be obligated to respond in a different way. I don't think responding "That's hurtful" to a child saying, "My religion doesn't believe this," would be the appropriate response. But that's not what the child said in this example, right? The child just said, "Boys can't be girls." To characterize that as religious confusion is you're leading the witness a little bit here. I don't know about this. You know, to provide a sort of counter example, let's say there's a book that includes a priest, and there's a feisty young Protestant in this class. And he says, "Catholics practice idolatry, and they have besmirched God's first commandment and they will all see hellfire." Right? And then a teacher responds that that is hurtful. Has the teacher run afoul of the First Amendment? If the rule here is that a teacher can't respond like that to a sincerely expressed religious belief, then the answer is yes, that that teacher has violated the First Amendment. And when that young Protestant says Catholics will all go to hell, the teacher has to say something else. The teacher has to be like, "Your religion is cool. We all have different beliefs, and yours are that every Catholic in this room will go to hell." Right?

Michael: Yeah.

Peter: Surely, surely that's not the rule we're actually operating on here. And I don't think Alito actually thinks it's the rule. This is a specific carve out for the gays, that's what this actually is. I think the majority here is really inadvertently highlighting the danger of trying to accommodate religious beliefs that are inherently anti-pluralistic, that are inherently exclusionary. You can't actually accommodate those religious beliefs in a way that works in a public school setting, because a public school setting needs to be pluralistic, it needs to include every student.

Rhiannon: Yeah, there's a lot of smoke and mirrors here about, I think, what actually the free exercise of your religion is. What this majority opinion is saying is that to be able to freely exercise their religion, they have to be completely free of basically, like, any dialogue that contradicts at all, any language, any vocabulary that would present a different lifestyle, a different viewpoint. It's sort of like protecting almost in this, like, baby sensitive, put it on a pedestal sense that anything different is offensive to being and exercising your particular religion. And I say it's like smoke and mirrors because anti-LGBT religious beliefs are hurtful to people who are different than you. It is hurtful.

Peter: Well, you can't—you can't use that harsh terminology, Rhiannon. That's the problem.

Rhiannon: [laughs] Right. It is hurtful. It is different. Other people believe otherwise. And to identify, to label that you would be introduced to disagreement about your religious beliefs as an inhibition on your ability to exercise your religion and hold those religious beliefs is like you're saying, Peter, it's fundamentally anti-pluralistic. It's fundamentally anti-democratic. It's fundamentally sort of insular and protective of only certain religious beliefs over others, even though free exercise, the establishment clause, are supposed to be about religious pluralism.

Peter: Right.

Michael: Yeah. You know, I think, like, there's a way of thinking about tolerance as sort of like a mutual pact, and you only get access to it if you join it, right? Like, demanding tolerance for intolerant beliefs is like signing a contract to do work, not doing the work and then demanding payment, right? Like, you're like a mutual thing.

Rhiannon: Yeah.

Peter: If you imagine that all this is is a rule that says, "We don't have to tolerate this gay shit," then it makes sense. You can see the world that they're envisioning, right? But if you actually take the rule that they're claiming to follow to their logical conclusion, there is no tolerance anymore within the public school setting, right? As long as the objection can be framed as religious, there's no need for tolerance. Every child can express their intolerance towards other races, religions, sexualities, gender identities, doesn't matter, as long as they imagine that it's religious.

Michael: I think I've told this story before, but back in 2006, I had season tickets to the Heat when I lived in Miami. And they went to the finals, and every game I went to, there were these protesters outside with all these signs saying that we worshiped false idols with, like, pictures of Dwyane Wade and Shaquille O'Neal and the Larry O'Brien trophy and literally being like, "You're going to hell. You're eternally damned. You're going to burn in hell for worshiping false idols." And these people were nasty. They would, like, yell at you and scream at you. And what, could you do that in a public school? Is that protected? Can you go to your high school game as a student there?

Peter: And not only that, if a teacher says that's hurtful, has the teacher now crossed the line?

Michael: Right.

Rhiannon: Yeah. Violated your constitutional rights.

Michael: Yeah.

Peter: One final note here. There's something that Alito says here, and I looked back through his opinions in similar cases, and it's something he's brought up before. One thing that the school district said was, if you want religious education, you can go to private religious schools, right? This is a public school. We have different obligations. We have this obligation to be pluralistic, right? And Alito basically says, look, private school's expensive. And therefore, like, public schools must be willing to accommodate this, not just by allowing people to go to private schools, but within the public school setting, which is a level of accommodation that you'll never see in other contexts, right?

Michael: Oh, yeah.

Peter: It's so interesting now to see conservatives be like, "Ooh, but that's expensive!" Maybe this is a little bit of a stretch but, like, so is running a PAC, but you seem to believe that that's like a fundamental right. And you haven't created pathways for normal people who can't afford it to have access to similar speech, right?

Michael: Right.

Peter: I mean, the premise here is that money is an obstacle to you affirming your constitutional rights.

Rhiannon: Yeah.

Peter: This is something that, like, the left talks about in different contexts, right? You should get access to a lawyer provided by the government, right? Because it's in the Constitution. It's not something that I've ever seen the right embrace in any way, except right here, right? This is—this is sort of the equivalent of saying, like, "Well, there's a constitutional right to bear arms, so guns are expensive. I guess the government should provide you with guns."

Rhiannon: Yeah.

Michael: No. I mean, I actually—I like the Citizens United one, too. I was thinking about this because, like, the original case about money in speech, they talked about how you need money to access speech in Buckley v. Valeo, and were like, "And that's why rich people should be able to spend whatever they want and flood the fields, essentially." It went the exact opposite way. It's like when money specifically allows you to access a right that rich people want access to, it's like, yeah, let them go fucking hog wild, and crowd out everyone else from exercising their rights. And tough shit for you.

Peter: Suddenly Alito is, like, concerned about the disproportionate allocations of capitalism.

Rhiannon: Yeah.

Michael: Right. Right. Well, and it's also, like, back to the equal protection idea of, like, okay, so wow, you want religious education? You don't have to pay for that, but you want an education, you want your kids to get an education where you as their gay parents are treated as a full and equal citizen? You do have to pay for that, apparently, according to Alito. You have to pay out the ass for that. Sorry. Sucks for you.

Peter: Yeah. Right. Right.

Michael: So Clarence Thomas saw Alito getting to write all the bigotry and was like, "I can't—I can't let that stand. I need to get in on this."

Rhiannon: Yeah, "I want some of this action, for sure."

Michael: Yeah. He writes a concurrence. His whole thing, I didn't find it to be a particularly interesting concurrence actually, but his whole thing is like a soft history and tradition analysis where he was saying, like, "Look, in Yoder, the Amish practice had been going on forever, for centuries, whereas this practice of compulsory education was rather new." And so he compares that here to religious beliefs of hating gay people going back forever—he doesn't say that, but he implies it—with sex education being new. Which is interesting because you might be wondering, I thought this was a reading section for five-year-olds, not sex education. And yeah, you would be correct. This is not sex education, but he has this whole thing about sex education and how teaching kids sexuality and all this stuff is new and not, like, well established. And then at the end, he says, "Of course, the storybook curriculum is also different in kind from traditional sex education." And then quotes a brief where it says, "The storybooks are not sex education materials." So it's like, what the fuck are we talking about here? Like, two people getting married is not sex education just because they're gay instead of straight.

Peter: Well, it's making him think about sex. So ...

Michael: [laughs]

Peter: I feel like that's what's happening is they're like, "This is sort of like sex education." Like, this is a little bit perverted because when they see two gay people, all they can think about is them fucking. They're like, "Oh my God, they're gonna fuck."

Michael: [laughs] Oh, it's so—it's so stupid. It's so stupid.

Rhiannon: It's so ridiculous.

Michael: It's just really—yeah, it's really gross. I mean, as far as Thomas opinions go, it's not the craziest, but it's just gross. It's just gross. These guys just clearly hate gay people, right? Like, that's—and hate trans people. Like, that's what's underneath all this. And there was another thing that Thomas wanted that talked a lot about in this opinion that I wanted to talk about, which is he says, "The curriculum itself betrays an attempt to impose ideological conformity." Which I thought was wild. I thought that's absolutely wild. Like, the whole point is respecting people who are different from you. That's what this is about. And framing that as conformity is just demanding conformity to your viewpoint.

Peter: Right. Right. I mean, let's put a pin in this because I'm gonna talk about Thomas's hypocrisy, or what I view as Thomas's hypocrisy in a little bit. But it's very interesting the way he talks about ideological conformity here. And what he's talking about is conformity; he's correct. It's conformity to the tolerance of LGBT people. [laughs] You know, when you learn math, you will also be taught conformity, right? Conformity to certain mathematical principles.

Michael: [laughs] You carry the one. Like, everybody carries the one.

Peter: It's a way to make everything seem scary. It's like, oh, it's conformity. It's teaching conformity. It's like, right. If there was zero conformity, you wouldn't really need school. But whatever.

Michael: Yeah. No, but again, like, the conformity that they're scared of is, like, being happy that two gay people got married and are happy together.

Peter: Yeah.

Michael: Like, the right to tell your kids, "No, that's gross and you should be angry about it. You should be like, that's disgusting and they're going to hell."

Rhiannon: Which you still have the right to do. That's the thing. Like, you still have the right to do when they're taught ...

Michael: Yeah, just in private.

Peter: But they wanna see them in the books. They want the—where's the one, where's the kingdom's homophobe?

Michael: Where's the homophobe? Yeah.

Rhiannon: Yeah, they want the transphobe in the bathroom with the kid. Yeah.

Michael: Yeah.

Peter: When a little girl is like, "I feel warm inside when I identify as a boy," they want one person to yell at her right in her face.

Rhiannon: Yeah.

Peter: "You can't play boy sports!"

Rhiannon: Right.

Michael: [laughs]

Rhiannon: And that's the only way their religion is safe.

Michael: Yes. Yeah, that's right.

Rhiannon: Let's pause here and take a break.

Peter: All right, we're back.

Rhiannon: Sotomayor writes the dissent here, joined by Kagan and Jackson, of course. This opinion's six-three, just like you thought it was gonna be. And she starts by contextualizing, like, this LGBT curriculum within, like, normal age-appropriate curriculum for children at these ages, right? Like, she talks about, like, instruction in literacy in school. You read books about many different kinds of characters. You read fiction and nonfiction. You read different genres. And the development and acquisition of literacy skills in kids means that kids practice and think about answering questions about characters, drawing inferences about a character's behavior or emotions. This is part of learning how to read beyond phonics, beyond sounding out words. Like, this is learning fluency in English, actually.

Rhiannon: And so just contextualizing it there, like, it's not—you know, it's not different from reading any other kinds of books and the instruction around any other kinds of books in terms of the skills that are being taught, which is actually what, you know, public school curriculum is about: is teaching skills. Now she goes and she writes a lot about precedent on the free exercise clause because she's really taking issue with Alito's the new test kind of, the very real threat test. And Sotomayor is saying nowhere in our precedent, nowhere where we've ruled on the free exercise clause have we said that some government policy that poses a threat, even a very real threat, is actually a violation of people's right to freely exercise their religion. Simply being exposed to ideas that are contrary to your beliefs is not obstructing your right to freely exercise. She juxtaposes, I think very deftly, very sharply, Kennedy v. Bremerton, the football coach praying on the field. You know, this was kids being exposed to specific prayer for representing a single religion at a school event.

Michael: By an authority figure.

Rhiannon: By an authority figure, by a school official, a school employee, somebody who represents the school, by being employed by them. And the court rules that's not a violation of the establishment clause. That's not, you know, the government sort of lifting the establishment of one religion over the other. But here in this case, the exposure to kids' books about gay and trans people violates people's right to exercise their own faith. This is illogical in—by its terms on its face. She goes on by kind of explaining, like, parents have the right to raise their children with their own faith traditions, but this majority is interpreting that to mean that parents have the right to raise their children without any of that exposure to any idea that might contradict those beliefs, and it's like handing a parenting layup to a group of parents. Like, you're not actually instructing your kids on your sincerely-held religious beliefs if what the majority opinion in the Supreme Court and the law is going to do for you is just say your kids have to never be exposed to anything that's different.

Michael: Right.

Rhiannon: Right? It's not actually like raising your kids meaningfully in a certain faith tradition or political tradition or a political ideology to just have it said to you at home or in a religious service and then never engage with it. You know, it's quite intellectual, of course, which you can argue that a lot of religious tradition is. So, you know, this is—this is me, this is not Sotomayor, but this is me just being like, it's just here's the easiest parenting you can do, and you're welcome. You know what I mean?

Peter: One of my critiques of the dissent is that I actually think she, like, hangs too much on this idea that it's just exposure to gay people.

Rhiannon: Yeah.

Peter: The majority basically says, "Well, it doesn't matter if it's just exposure or it's not. Like, that's not part of our legal tests that we're creating here. But also it's more than exposure." Like, they take that angle, but I don't think we should be hanging our hat on that. And I think the reason that she does is because she doesn't want to go the extra step and say, "We don't need to tolerate bigotry just because it's religious bigotry."

Rhiannon: Mm-hmm.

Michael: Right.

Peter: And that's the rule that we should be creating. And I'm disappointed that in a world where you're never gonna fucking win these, you're never gonna win these free exercise cases if you are the libs, right?

Michael: Right.

Peter: Don't try to create these half-baked ass rules where it's like, well, this is just exposure, right? Because you can very easily argue, well, they're not just trying to expose people to LGBT. It's not just witnessing an LGBT couple, right? The book wants you to think it's okay. Which is true. The book does want you to think it's okay.

Rhiannon: Yeah.

Peter: The reason that this is totally fine and constitutional is because there's no fucking carve out for anti-LGBT bigots. And it doesn't matter if their bigotry is because they're Catholic or whatever.

Rhiannon: Yeah.

Peter: It shouldn't matter, right? There are other concerns in the public school setting. And Sotomayor doesn't go there. And so I actually—she makes a lot of independently good points, but I don't think holistically I like the dissent very much because of that, because she didn't cut to the heart of it.

Rhiannon: I agree with you because what she's hanging her hat on, I think in the end, and the distinction that she's drawing or trying to make is that nobody here with their children engaging or learning from LGBT curriculum. What Sotomayor is saying is that's not coercive. It's not coercing parents into actively violating their religious beliefs. This is the distinction she draws. But she's using mere exposure, right? As like, no, you can't say that's a very real threat. She's, like, framing it as mere exposure versus other cases like Yoder, the Amish parents and public school education. You know, in Yoder, she says it wasn't that their children went to school and were taught things that they disagreed with, it was about compelling parents of a certain faith to do something that actively their religion forbade, which was sending them to school.

Rhiannon: And there's another case called Ling, where a group of Native Americans brought a challenge to a highway. The government was, you know, proposing to build a highway that was going to cross through an area where this group of Native Americans held, like, religious rituals. And the Supreme Court ruled against them, ruled against the Native Americans. But they said even, yeah, this highway could and will interfere significantly with people's ability to pursue, like, spiritual fulfillment according to their own religious beliefs, but they're not being coerced into violating their religious beliefs. And so this is the distinction that Sotomayor is drawing, right? And, like, are you actively being coerced? Are you coerced into actively violating your religion, or is this kind of just mere exposure? And I think that's right. I don't think this is the most powerful argument against. I think it is an argument against. I feel the lack of, like, a gap in the dissent that is not squarely calling out we don't do constitutional religious protection for bigotry, for anti-pluralism, you know?

Peter: Again, to be a little bit nerdy, I feel like that gap can be filled by the equal protection clause. I feel like you can say there are multiple constitutional amendments playing against each other here. Yes, these people have the right to exercise their religion, but people are afforded equal protection of the laws, and that means you can't marginalize gay people within public school classrooms.

Michael: Right. I also think, like, big picture, dodging this issue feels like such a miss when religious-fueled bigotry is, like, one of the animating forces in American politics and American life right now. Like, how can you just ignore it? How can you just pretend like that's not the figurative and literal elephant in the room, or the double figurative elephant in the room, since it's Republicans?

Rhiannon: Yeah. What you see here then is the Supreme Court weighing in, weighing quite explicitly in on legitimizing bigotry, saying it's legally protected. The Constitution protects your right to be religiously bigoted against other people. And, you know, to me, it's more than, like, a First Amendment thing where, yes, you can say and believe things that are different from other people, you can even express those beliefs and opinions and they can be hurtful to others. But what the Supreme Court is legitimizing here legally is that one group of people can be hateful, can be bigoted, and they are constitutionally protected from having to contend with the fact that they disagree, that their beliefs are hurtful, that their beliefs maybe don't comport with reality, aren't accepted by a greater majority. This is the legitimization of bigotry, not just to give people the right to have, like, different beliefs, you know? This is the legitimization of bigotry in terms of a legitimization of its practice of building it in and protecting it in a way that these same conservatives would argue that the First Amendment is neutral on these kinds of things.

Michael: Look, just today, as the day we're recording this, Mike Johnson, the Speaker of the House, said about Donald Trump being nearly assassinated a year ago, God miraculously saved the president's life. I think it's undeniable. And he did it for an obvious purpose: his presidency and his life ...

Peter: To protect the Epstein files.

Rhiannon: [laughs]

Michael: Right. That's right. His presidency and his life are the fruits of divine providence. He points that out all the time, and he's right to do so. Like, this is—like there's a religious cult that is building concentration camps, driving gay people out of public life and destroying the federal government.

Peter: It's interesting that we don't think about it like that anymore, because when all of us were coming up politically, it was the Bush administration. And it was very expressly religious, very expressly evangelical, and that's how people thought about politics: religious people versus non-religious people or less religious people. And I think people don't think about it in those terms anymore, mostly because the religious people sort of like revealed themselves over the course of the Trump era. Like, they used to sort of present as, like, "Well, you know, we live austere, disciplined lives. We abstain from sinning and blah, blah, blah, blah, blah." And what I think the Trump era revealed is actually no, that what they do is almost the opposite. They participate in a sort of like cultural and emotional decadence.

Michael: Yeah.

Peter: Where they get whatever they want and they seek out immediate satisfaction. They just sort of cloak that in their religion. And it's interesting that they now sort of like legally get to still put forth the cloak, right? Like, oh, we have these religious objections, even though I think everyone sort of understands that what they are is not people guided by their religious beliefs. What they are are people who are guided by selfishness and decadence.

Michael: Right.

Peter: Who shroud that in religion.

Michael: Right, right. The religious theme to Bush's first campaign, he was supposedly reinventing conservatism as "compassionate conservatism," which is again, totally unmasked in the Trump era when the conservatives are in an all-out war on empathy. They literally talk about empathy like it's an evil. So yeah, it's definitely a different paradigm, but when you're talking about religious privileges to opt out of things in public school, you can't not think about slippery slopes. And we are on the hundred-year anniversary of the Scopes trial, and it is worth considering whether or not the next step in this will be people objecting to the teaching of evolution in biology, and the teaching of the Big Bang in physics. And it's a hundred years later. I mean, Peter said it earlier that the actual rule is basically that, like, gay people are gross, right? That's the real rule underneath this opinion. But if you take the actual rule as stated, there's absolutely no reason why a religious parent couldn't opt their kid out of teaching of evolution.

Peter: Or anything. Literally anything. I mean, and ...

Michael: Dinosaurs, the age of the Earth, all that shit.

Peter: Weather?

Michael: Yeah.

Peter: God does it. I mean, there's no end to the potential opt-outs, and it presents all matter of logistical difficulties for public schools, obviously. Right?

Michael: Right.

Peter: And the actual function for the most part is just to create a chilling effect, because schools won't want to add LGBT books to the curriculum if they know it's gonna create this big opt out problem where you have all these complaining parents, students need to get notice and opt out, and then you basically have to handle them separately, teach them something else, right? Fucking substitute teacher needs to come in and put on a straight movie. The actual function here is to just sort of scare schools away from teaching anything that might offend a Christian. And it's really important to, like, just understand that this is really fundamentally designed to undermine public schooling, to create this private religious veto power over the curricula in public schools.

Michael: Yeah. I mean, you can imagine, like, if you live in a district that, like, 50 percent of the kids opt out of evolution, is the district just gonna not teach evolution? What are they gonna do about that? Like, what are they gonna do when half the kids don't want to learn, or the parents rather don't want their kids to learn basic biology? Do you just not even teach biology at all? And what does that mean for you as a parent? You know, if you want your kid to learn evolution, you get to pay for the expensive private school now. You know, part of me thinks that this is just—we talked in our last Patreon episode about the court being run by this sort of amorphous, multi-headed organization that's always in sort of conversation with itself that has no one leader. And I suspect at least some of the justices are hoping that people understand this is just gay shit. Don't go trying to make your public school teach creationism or intelligent design. I'm sure, like, Roberts or someone doesn't want to see that case. But the problem is there are a lot of fucking nuts out there. There are a lot of nuts out there. And once you give them this power, somebody's gonna go for it in the next five years.

Peter: A hundred percent.

Michael: For sure.

Peter: A hundred percent. I mean, this stuff gets circulated on the right in right wing religious communities. They are very aware of the political power they hold at, like, the school level, at the school district level.

Michael: Yeah.

Rhiannon: Yeah. on the point of, like, the relationship between the Supreme Court as an institution and the rest of, let's say, the right wing movement in the United States, there's a specific relationship here that's illuminated in this case between the Supreme Court and religious people, social conservatives, families, conservative families, where the Supreme Court is able to hand a win clearly to political conservatives, social conservatives, hand that win to them under the guise of religious freedom and what the Constitution says. And how does the Supreme Court benefit? The Supreme Court benefits in this relationship and the dynamics here by being able to say, "Well, oh, sometimes we rule in favor of, like, religious minorities." The named plaintiff here is a Muslim, are Muslim parents. But what you see in this relationship and in this dynamic is that it's conservatives aligning in bad faith, and often only through, like, a sort of tokenism. It's superficial aligning with some minorities sometimes on these issues, but really only because the results—it's still results oriented—it's only because it suits the right, it suits the broader right wing movement. And religious groups tend toward social, political conservatism. And it's so easy in the right wing political project, in the conservative political project in this country, to cover what are political beliefs, conservative social beliefs in sincerely held religious beliefs. And so this is—this is why sometimes there will be some, like, bone thrown at a minority group, particularly in free exercise or establishment cases, because those are about religious beliefs and the practice of religion. And it's only because actually these six conservative Christians see that this result ultimately benefits Christians.

Michael: Yeah, they love doing this, right? Like, they got an Asian plaintiff to kill affirmative action. Like, they love grabbing a minority to stand in for them for, you know, a legal fight that will ultimately hurt those minorities in the long run. All this is doing is establishing a place of privilege for dominant religious beliefs that the majority of justices ascribe to. And, you know, if you're Muslim, this opinion is going to hurt you more than it helps you in American public life.

Peter: This case got me thinking about another First Amendment issue, which is free speech in schools. Because the Roberts Court has been very unwilling to recognize the free speech rights of students, right? If you remember Morse v. Frederick, there was a student who held up a sign that said, "Bong Hits 4 Jesus," which the court said was not protected by the First Amendment. Way back in the '80s, you had Hazelwood v. Kuhlmeier, where the court said it was okay that a school censored stories about teen pregnancy and divorce in the school newspaper, right? We did that a few months back. And the whole rationale is like, well, public schools have to be able to control the learning environment.

Peter: So in Hazelwood, the court said that the school can censor student newspapers because schools need to be able to control the curriculum, and the school's need to control the curriculum trumps the speech rights of the student journalists. But then here, the school's need to control its curriculum is apparently outweighed by the parents' First Amendment rights. So students don't have the right to make jokes about drugs or write about pregnancy, but parents' First Amendment rights are so powerful that they can reach into the schools and block elements of the curriculum from being applied to their kids. There is a really fundamental hypocrisy in how they talk about the First Amendment in these contexts.

Peter: I'm gonna read from the Clarence Thomas concurrence in Morse v. Frederick, the "Bong Hits 4 Jesus" case. He says, "During the colonial era, private schools and tutors offered the only educational opportunity for children, and teachers managed classrooms with an iron hand. Public schooling arose in part as a way to educate those too poor to afford private schools. Because public schools were initially created as substitutes for private schools, when states developed public education systems in the early 1800s, no one doubted the government's ability to educate and discipline children as private schools did. Like their private counterparts, early public schools were not places for free-wheeling debates or exploration of competing ideas. Rather, teachers instilled a core of common values in students, and taught them self-control." So according to Thomas, public schools have an almost authoritarian mandate, right? They are not places for debate or competing ideas, they instead "instill a core of common values." Here, in this case, in Mahmoud, he complains about them trying to initiate conformity among the students, right?

Michael: Right.

Peter: Back in Morse v. Frederick, he was touting their ability to instill a core of common values, right? Instill conformity. In this case, that all fades away, and suddenly the job of schools is not to provide a core of common values, but to accommodate whatever values religious community members might have. In fact, here Thomas is complaining about the attempt to impose values on the students, even though in the past he has described that as the central purpose of schooling.

Michael: Right.

Rhiannon: Yeah.

Peter: And you might say, by the way, like, oh, this sort of squares because to conservatives, children are just agents of the parents. So they're actually kind of being consistent when they say children have no rights, but parents do have them. There is a truth to that, but remember how they talk about gender-affirming care for minors, which parents almost across the board do consent to. Suddenly the child must be protected from the parent on behalf of conservative cultural norms. And before we wrap, you know, we've sort of touched on this a bit, but there's a big picture concern for the left in these religion cases. This case and cases like it privilege religious beliefs over other beliefs, which you might think makes sense because there's a clause in the First Amendment about freedom of religion. But there's another clause in the First Amendment about freedom of speech, right? And the court has never said that that extends to the schooling of your children in the same way. They've created these frameworks where religious beliefs are more protected than other beliefs. And because religion has this conservative valence, it means conservatism is more protected than other political ideologies.

Peter: You look at the status quo after this case, and it's that right wingers get to functionally veto elements of the public school curriculum, but people on the left generally won't have the same ability because they can't claim that their objection is religious. And I think that the left needs to think about this seriously as a legal problem. First, because I think we should be arguing that many left and liberal political positions are, in fact, religious. You've seen this strategy before. This is, like, why the Church of Satan exists, right? The Satanic Church, they don't generally really worship Satan. It's just a sort of way of protesting the favorable treatment of religion. But then also, there's nothing in the Constitution that says religious beliefs are more protected than political beliefs. Your right to live and practice your politics could be just as robust legally as your right to practice your religion, and we should be thinking about the First Amendment that way, right? We should be thinking about the First Amendment as something that protects your speech, your expression the same way it protects someone else's religion, right? There's really no reason for there to be a strong distinction.

Rhiannon: Use it as a tool. They're using it as a tool. They're using it as a weapon. We should be, too. Like, it's that simple.

Michael: I disagree. I think the way we should be thinking about the First Amendment is suspending it, rounding up anybody who's ever identified as a conservative and putting them all in Guantanamo Bay.

Rhiannon: The best deal.

Michael: [laughs]

Peter: What I really want is to create a world where little seven-year-old Protestants in every public school class are telling Catholics that they're all going to hell, and there's nothing that a teacher can say about it.

Peter: All right, folks. Next week, another First Amendment case from this term. This one about speech. Free Speech Coalition v. Paxton, a case about porn in Texas. Follow us on social media @fivefourpod. Subscribe to our Patreon, Patreon.com/fivefourpod—all spelled out—for access to premium and ad-free episodes, special events, our Slack, all sorts of shit. And once again, of course, FiveFourPod.com/merch for access to our sick new merch, our coolest new merch that we got. We'll see you next week.

Rhiannon: Bye y'all.

Michael: Bye everybody.

Michael: 5-4 is presented by Prologue Projects. This episode was produced by Dustin DeSoto. Leon Neyfakh provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at CHIPS.NY, and our theme song is by Spatial Relations. If you're not a Patreon member, you're not hearing every episode. To get exclusive Patreon-only episodes, discounts on merch, access to our Slack community and more, join at Patreon.com/fivefourpod.

Michael: I love linen shirts.

Peter: I got too much linen. I have, like, seven pairs of linen pants. I don't know what the fuck I'm doing. I'm just going—every time I see a new one, I'm like, yeah.

Rhiannon: Need those as well, yeah.

Peter: I don't wear shorts really anymore, like around the house, but I don't wear shorts outside anymore. I just wear linen pants. I feel like it's so much better.

Rhiannon: It's nice.

Peter: Shorts never look good. It's so rare that shorts look good on a grown-ass man. You know what I mean?

Rhiannon: Yeah.

Michael: Well, I disagree with that, but that's because I come from a beach community.

Rhiannon: That's right. Yeah, yeah. South Florida talking.

Peter: Right. I mean, that's a degenerate lifestyle that you live.

Michael: [laughs]