RICHMOND, Va. (CN) — The Fourth Circuit heard arguments Tuesday over whether Maryland parents, on behalf of their elementary school children, can opt out of reading their kids assigned books that include LGBTQ+ characters.
Montgomery County School Board introduced the Pride Storybooks, a collection that some parents argue is aimed at indoctrinating elementary school children into views on gender, sexual orientation and other themes that contradict the parents' religious beliefs.
The parents challenging the law, along with parents' rights organization Kids First, appealed after a federal court in Maryland denied their motion of preliminary injunction allowing them to opt out of reading the storybooks for their children.
U.S. Circuit Judge Steven Agee, a George H. W. Bush appointee, on Tuesday questioned whether enough evidence showed the Pride Storybooks infringed on parents' religious rights.
"That's sort of the dilemma we struggle with here," Agee said. "Is there sufficient evidence upon which to base a decision?"
Attorney Eric S. Baxter of the Becket Fund for Religious Freedom, representing the plaintiff appellants, cited the Supreme Court ruling Wisconsin v. Yoder, in which the majority found Amish parents were allowed to remove their children from high school entirely to avoid exposure to ideas against their faith.
But U.S. Circuit Judge DeAndrea Gist Benjamin, a President Joe Biden appointee, distinguished this case because the Maryland book series is tied with a policy: the board's policy on promoting inclusion and respect.
Baxter shot back. "Our clients want to prompt inclusivity and respect," he told the three-judge panel. "School boards across the nation teach inclusivity and respect while still requiring opt-outs or opt-ins."
The books in the series included include "Uncle Bobby's Wedding" by Sarah Brannen, where a niece struggles with the fear of losing her favorite uncle after he marries his partner, and "Pride Puppy!" by Robin Stevenson, in which a family attends a Pride parade with a mischievous dog.
Characterizing the books' themes as having family life and human sexuality objectives, the parents argue Maryland law allows them to opt out. "The parents also believe that directing teachers to talk to children about sexuality, to invite children to question their gender identity, or to encourage young children to embrace gender transitioning is spiritually and emotionally harmful," the appellants' brief states.
However the board claims the books are intended only to teach English and language arts, and their themes represent the lives of many of its students and families.
"They do not prompt children to explore romantic feelings or question their sexual orientation or gender identity," the school board's brief states. "They are language arts instructional materials — approved by specialists for use in the ELA curriculum — that reflect the communities in which [Montgomery County Public Schools] students live."
Initially, the board did allow the parents to opt out, but it reversed course after claiming it became practically infeasible and disruptive to instruction.
Attorney Alan Schoenfeld of Wilmer Hale represented the board during Tuesday's arguments.
"Exposure to the existence of LGBT people and LGBT families through these texts are not constitutionally cognized burden," Schoenfeld argued before the panel of judges.
U.S. Circuit Judge Marvin Quattlebaum Jr., a Donald Trump appointee, asked Schoenfeld whether the curriculum dismisses religious beliefs.
Schoenfeld argued the books teach tolerance in the name of civility, rather than forcing a viewpoint. He pointed to an example where a student calls another student weird for identifying as a different gender than their sex assigned at birth and how the materials merely aim to stop students from using language that's hurtful to LGBTQ people.
Dozens of professors, state attorney generals and civil rights organizations submitted amicus curiae briefs for both sides.
The Fourth Circuit will review the lower court's finding that the storybooks were unlikely to result in the indoctrination of the children, prevent the parents from raising their children following their religious views or coerce the parents or their children to violate or change their religious beliefs.
The lower court also disputed the plaintiffs' comparison to Wisconsin v. Yoder, finding that Amish parents were forced either to abandon belief and be assimilated into society or to migrate to some other, more tolerant region. It pointed to a former associate Supreme Court justice's opinion from 1948, McCollum v. Board of Education, a case concerning the separation of church and state.
"If we are to eliminate everything that is objectionable to any [religious group] or inconsistent with any of their doctrines, we will leave public schools in shreds," former Supreme Court Justice Robert H. Jackson, a Franklin D. Roosevelt appointee, said, as quoted in the lower court ruling. "Nothing but educational confusion and a discrediting of the public school system can result from subjecting it to constant lawsuits."
Attorneys representing the board did not respond to requests for comment, while the attorneys representing the appellants sent a press release.
"Parental involvement is crucial for children, especially in elementary school. The court should restore notice and opt-outs so parents can parent and kids can be kids," Baxter said in the release. "Schools have no business pushing instruction on gender and sexuality without even notifying parents."
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