“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. It includes judges nominated in both his first and second terms.
All 3 Trump justices (Gorsuch, Kavanaugh and Barrett) cast deciding votes in the Court’s 6-3 opinion that required a local school board to allow parents to “opt out” their students from classes that use LGBTQ+-friendly books that conflict with the parents’ religious beliefs. Concerned about the effect of the ruling on public education and on the Court’s freedom of religion jurisprudence, Justices Sotomayor, Kagan, and Jackson strongly dissented from the June 2025 decision in Mahmoud v Taylor.
What happened in this case?
During the 2022-23 school year, the Montgomery County public school system (MCPS) introduced several LGBTQ+-friendly storybooks and other materials into the school curriculum. MCPS initially permitted parents to “opt out” their children from participating in classrooms using these materials, but this soon proved impractical and disruptive, so the opt-out policy was ended.
Rather than following MCPS procedure for objecting to and challenging books, under which they could have presented concerns and sought administrative relief all the way up to the superintendent and school board, a number of parents filed a federal lawsuit, claiming that the use of the books in their children’s classrooms without allowing an opt-out violated their right to free exercise of religion. A district court ruled in favor of MCPS, and the Fourth Circuit affirmed. The Supreme Court agreed to review the case.
What did the three Trump justices and the rest of the Court majority do and why is it harmful?
Justice Samuel Alito wrote a 6-3 opinion, joined by all three Trump justices plus Chief Justice Roberts and Justice Thomas, which reversed the decision below. The majority ruled that a preliminary injunction should be entered while the lawsuit continues that grants opt-out rights to parents who object to the use of LGBTQ+-friendly books because of religious objections. According to Alito, the use of the books poses a “very real threat of undermining the religious beliefs and practices” that the objecting parents “wish to instill.”
Justice Sotomayor strongly dissented, joined by Justices Kagan and Jackson. As a matter of law, she explained, the majority’s ruling and its “very real threat” test are “squarely foreclosed” by Court precedent. “Mere exposure” to “objectionable ideas” as in this case, she went on, “does not give rise to a free exercise claim,” according to past precedent. The assertion that including the challenged books among those being read by students imposes a “very real threat” of undermining parents’ religious beliefs, she went on, is nothing more than “renaming” the “exposure” theory that the Court has rejected as a basis for a free exercise claim in public schools and elsewhere.
The Court’s new “very real threat” test, Sotomayor went on, includes “no meaningful limits” on the types of school decisions now subject to strict scrutiny. The ruling thus threatens to “wreak havoc on our Nation’s public schools” as challengers maintain that countless public school practices and policies violate religious freedom. As education law expert Justin Driver put it, the decision may well “open a Pandora’s box in countless classrooms” as objectors “in effect veto individual school lessons and assignments.” It also casts “profound doubt,” he continued, on the principle of lgbtq+ equality.
The litigation will continue, but the preliminary injunction mandated by the Court majority will likely cause significant damage to our rights and our public schools. In addition, the case illustrates the importance of our federal courts to health, welfare and justice and the significance of having fair-minded judges on the federal bench.