CV NEWS FEED // What happens when a child comes to school and says, “I thought, if you’re born a boy, you’re a boy, or born a girl, you’re a girl”?
Teachers in Montgomery County, Maryland, have been told to respond by saying that this kind of comment is hurtful. When a baby is born, apparently, parents and doctors just make a guess about whether the child is a boy or a girl.
On top of that, the school board is no longer allowing parents to opt their children out of reading “Pride” storybooks.
CatholicVote’s Tom Pogasic discussed this debacle and its resulting lawsuit with religious liberty attorney William J. Haun of Becket Law on a special edition of the LOOPcast.
Tom Pogasic: Welcome back to the special edition of the LOOPcast, where we cover all things faith, culture, and politics from a Catholic perspective.
Today, I have the pleasure of being joined by William J. Haun. He is senior counsel at the Becket Fund for Religious Liberty. At Becket, Will litigates nationwide in defense of religious liberty for all faith traditions, particularly before the U.S. Supreme Court and in other federal and state appellate courts.
His litigation includes being a member of the U.S. Supreme Court team that prevailed 9-0 for Catholic Social Services in Fulton v. City of Philadelphia. Will, welcome to the show.
William J. Haun: Thank you. It’s my great pleasure to be here.
Tom: This is kind of a case when you wish you weren’t here in some ways, but, here we are. We have another thing facing us, and people need to step up.
The current case is Mahmoud v. McKnight. Parents in Maryland are fighting back against the Montgomery County Board of Education.
This [Board of Education] is forcing pre-K and elementary-age children to read controversial books that promote a one-sided transgender ideology, encourage gender transitioning and focus excessively on romance with no parental notification or opportunity to opt out.
On May 24, Becket filed a federal lawsuit to protect parents’ rights to opt children out of school activities that infringe on their right to direct their children’s upbringing on sensitive religious matters.
Will, tell us about what happened. How did they come to you, and when did you decide to file this lawsuit?
Will: This case originated out of a number of families who represent, speak for, or rather reflect the concerns of thousands of families across Montgomery County, Maryland, who are deeply concerned about the introduction of ideological, one-sided books that have been put into the curriculum on transgender issues, sexual orientation issues, gender transitioning and gender ideology starting, as you say, as early as pre-K.
This curriculum, what we call the “Pride storybooks,” was introduced, and it was expected that teachers would have flexibility in using the books and that also parents would have (as they have on all matters of family life and human sexuality in Maryland and then in Montgomery County under its own guidelines, all manner of classroom discussion activities or curriculum) the ability to get advance notice and also opt their children out if there is a burden on their religious formation.
That system worked. The parents were made aware that these books were going to be read. They were able to ask for opt-outs. All of our clients received opt-outs from their children’s respective elementary schools, and those opt-outs were honored. But then, on March 23, for reasons that have not been publicly explained, Montgomery County Public Schools simply withdrew the opt-outs and said that going forward, there will be no more.
There will be no more notice, there will be no more opt-outs. You must be made to read these books.
This is not about promoting kindness, tolerance, or having empathy and respect for everyone, regardless of their situation in life or who they are.
This is about identifying a celebrated sex worker at a pride parade in a five-year-old class. This is about encouraging third graders to tell their parents that they just don’t understand who they really are and that things don’t have to make sense when they’re about love. That’s what this is about.
As the Montgomery County Public School teacher guidelines say, If a child were to read one of these books (for example, in third grade, the “Boy Named Penelope” book) – if that child were to then come into class and raise his hand and say, “I thought, If you’re born a boy, you’re a boy, or born a girl, you’re a girl.”
The teacher is told by the county that you should respond by saying that this kind of comment is hurtful and that parents and doctors, when you’re born, are just making a guess about whether you’re a boy or a girl. And the only person that really knows for sure is you. It’s all about how you feel inside.
This is harming the ability of our parents, who are both from Muslim families and Christian families, to pass on their religious beliefs and also their religious traditions, and what they understand is required of them as parents to direct their children’s religious formation into men and women. It is harming their ability to have those conversations.
It’s breeding a mistrust [about] whether or not children can really trust their parents when it comes to these issues of who they are and their identity and their personhood. It goes to also this over-sexualization of children, which the parents believe is an inappropriate way to go about addressing these very sensitive issues with highly impressionable young children.
Tom: Dare I say, it’s actually not just against people of religious faith who wish to pass that on. This is against sound science in a lot of ways. The idea is that a doctor just assigns birth or guesses at birth, and it could change. Even if people of no religious belief at all have beliefs about science that they’ve understood their whole lives, it’s actually violating that as well.
I want to ask you, as an attorney – we hear this buzzword thrown out a lot, “parental rights.” It’s kind of become a new rallying cry for parents who are a little bit upset at what’s going on in their schools. Legally speaking, what is “parental rights?”
Will: Parental rights has a long tradition. In fact, the Supreme Court, as recently as 2020, referred to it as an enduring American tradition of the ability to direct your children, particularly their religious upbringing, but their formation in general. This principle has a long lineage. It obviously has an argument in it in natural law, it has an argument in it from the common law that religion follows the family, particularly the father.
It has been reflected in American law in all sorts of ways even after the rise of public schools. There are a number of cases that point out in the case of Catholics – for instance, that Catholics could not be forced to read the King James Bible in a common school.
They had the ability to seek an opt-out for their children. Cases there will cite the fact that there was an opt-out allowed to uphold those policies or that they’ll cite the Constitution as guaranteeing that right.
The key case from the Supreme Court comes from the 1972 decision in Wisconsin v. Yoder. That case was an opt-out case. It dealt with the ability of Amish families to opt their children out of secondary education – high school education – that was compulsory on the ground that it inhibited their children’s ability to participate in an Amish way of life. And what the children were going to be formed in by going through public education were going to be virtues and ways of approaching worldly success or personal accomplishment or moral goods in a way that threatened the Amish way of life.
And we see that this principle is carried forth in terms of the ability to choose to send your children to a religious school, to homeschool your children, but also for public schools to be responsive and supportive of the parents that they represent.
That’s why this case, in particular, is such an important one for parental rights, because here in Montgomery County, the county had allowed opt-outs, like I said, on this particular set of Pride storybooks and until March 23, they were allowing them and honoring them.
Maryland law, like 32 other states nationwide, requires either an opt-out from courses on family life and human sexuality, although, in some states, it’s, in fact, an opt-in where you’re not even going to be teaching that unless you affirmatively opt into the instruction. And then there are also court cases, including one recently in Pennsylvania, that have upheld the right of parents on these kinds of sensitive issues, going to the core of a child’s identity, to be able to opt their children out.
We see over and over again, as a matter of court cases, as a matter of the common law, as a matter of natural law, as a matter of the political process regulation, a long tradition in our history of respecting the fact that the parents are the first teachers because the family is the first society.
Tom: As I understand it here, this was an education board decision. One board member justified this decision by claiming that allowing opt-outs because these books “offend your religious rights or your family values or your core beliefs is just telling your kid, Here’s another reason to hate another person.”
We’ve seen this across the country over the past few years. These school boards are essentially finding ways to kind of circumvent parental rights in many instances. How, in this specific case, has the school board overstepped or circumvented what we understand through a long tradition to be parental rights?
I think the best demonstration of that is just how anomalous the school board’s approach to the Pride storybooks is compared to every other kind of instruction in Montgomery County. According to Montgomery County’s own religious diversity guidelines, you could opt your child out of a Halloween party. You could opt your child out of Valentine’s Day celebrations – for religious reasons. You can opt your child out of sex education. You can opt your child out of a music class where you have to teach a certain song. They would be able to do something else.
But when it comes to the “Pride storybooks,” everyone must read them no matter what. That kind of anomalous treatment triggers the free exercise of religious protections for an independent reason because you can’t have one rule for everybody else and a different rule for religion.
But it also shows that this kind of unfortunate rhetoric is really just a distraction from what the core issue is here, which is that the public schools in Montgomery County are unfortunately proceeding in a way that cuts the parents out of meaningful involvement on a core issue, going to a child’s identity.
Tom: As you said, this is so anomalous. What would the implications of this case be around the country?
Will: We are hopeful that by asking the court to put back into place effectively the opt-out policy that existed until March 23, this will set a strong signal nationwide that parental rights are not hypothetical. They’re not abstract. They’re real. They’re enforceable, and they are connected to our Constitution and our long tradition. And hopefully, that will be an example that other courts will look to when should or when similar issues arise.
Tom: Totally. And what’s the timeline for this case? When do you expect things to start moving?
Will: As you know, we filed our complaint. We’re going to be moving soon for what’s called a preliminary injunction to put back into place the opt-out policy that existed until March 23 because, for the upcoming school year, there are not going to be opt-outs otherwise. That’s the board’s stated position as of March 23.
We’ll be moving for that. We would expect a ruling before the new school year starts, and that’ll tell us how the case is going to proceed.
Tom: Great. And I think a lot of people kind of admire from the distance a lot of the work that you and the Becket Law firm do. Could you give us a synopsis of why Becket exists?
I see that you’re taking on this case. That might give an idea, but what is the founding vision for Becket, and how can people see what you are doing and follow along with the work?
Will: The Becket Fund for Religious Liberty was founded by Seamus Hasson in 1994 to defend religious liberty for people of all faiths. It’s grounded in the principles articulated in Dignitatis Humanae, the Second Vatican Council’s Declaration on Religious Freedom, particularly an acknowledgment that truth exists. Truth is real. And we all have an obligation to form our consciences in light of what is true and to live our lives in accordance with that as best as we can and know it.
And it is not the place in our kind of pluralistic society – one that’s always been pluralistic – for secular governments to use coercive power to try to force the religious people or religious institutions to move away from the truth, but rather to support the space by which both religious individuals and religious institutions can call others to the highest truth as best as they can.
We’re named for Saint Thomas Becket, and his witness is particularly instructive for what we have stood for in court cases at Becket because Saint Thomas Becket stood up for the authority of the Church in England against the efforts of King Henry II to try to assert royal control over all of the Church’s functions in England.
What that witness demonstrates is that, and it’s something that Becket has stood for consistently, especially in cases involving the rights of religious organizations and churches, in particular at the Supreme Court, is that religious freedom is not simply an individual right.
It’s not simply reduced to self-expression. It rather reflects the fact that there is a higher and prior sphere of authority that belongs to God and that that sphere is one where the secular government simply has no lawful ability to interfere. And that principle is something we have defended again and again at the Supreme Court and in courts across the country.
We have an impressive track record of success at the Supreme Court, defending the rights of the Little Sisters of the Poor, the rights of Catholic Social Services, Hobby Lobby, religious organizations, and individuals from all faith traditions – as we like to say, from A to Z, from Anglican to Zoroastrian.
The result of that is it demonstrates that religious freedom in the American context is a principle that goes to the core of what it means to be a person who can govern yourself and also a society that respects self-governance.
We see this is going to the absolute core of what it means to be an American and what it means to be free in a true sense.
Tom: That’s really beautiful. If I may ask, too, you represented the Little Sisters of the Poor at the Supreme Court. It’s not like these types of things have just recently started happening. However, it does kind of feel like, under the current administration – you mentioned secularism. We’re talking about the government here.
Have you noticed either an increase in the frequency of cases that you’re seeing, or have the nature of the cases changed? What’s changed from the Little Sisters of the Poor case to 2023?
Will: We are busy, and I must admit that sometimes I wonder whether that’s a good thing.
I think what has changed, and maybe it’s reflected in the Little Sisters of the Poor case, is an example of this is the shift between – there was a way in the early nineties, for example, in a kind of key religious liberty case called Smith, where the Supreme Court and others would talk about religious liberty as if it was simply a matter of the secular government, kind of overlooked – an unfamiliar religious belief or essentially forgot to try to accommodate someone.
That’s not what’s going on anymore. We see this, especially in the fact that if you look at the plaintiffs in religious liberty cases or those who are withstanding government challenges, defendants in that case, what you’re seeing in the religious claimants is a shift from purely individual claims of religious liberty to a lot of institutional claims.
If you look at the past ten years of Supreme Court cases on religious liberty, you’ll see that they involve a nonprofit health care ministry, the Little Sisters of the Poor, a business with religious views, Hobby Lobby, foster and adoption agencies, and Catholic social services. We’ll see in other courts: campus student groups, religious schools, and religious hospitals.
We’re seeing religion’s institutional presence in public life being put under challenge. And that is a distinct move. And that’s why it’s all the more important that we recognize, as the Supreme Court did in 2020, that there is a sphere of authority for religious institutions to form their own members in the truth. That connects in a way to what’s going on with Montgomery County because protecting the right of parents to direct their children’s religious upbringing is an acknowledgment that the family is the first society.
The parents are the first teachers. And so when the government comes in with its schools, the job, properly speaking, is to support that first society in its primary mission of handing on beliefs to their children. And so, we can’t think of the public schools as operating on delegated authority from the parents if what they’re doing is imposing an ideology at the expense of other viewpoints that would obstruct the parents in handing on their traditions to their children.
Tom: It always seems to me like if Bibles were being handed out to pre-K or fifth grade, there’d be a huge firestorm of offense that you’re trying to push some type of whatever on kids.
And yet we’re seeing books – I read through some – and intersex flag, drag queen, underwear leather, these are terms that they want four-year-olds to go look up and circle. It’s just unthinkable stuff.
Will, while I have you, and if you may, this is more of a personal question. There are a lot of different types of law. And I’m sure you spent a lot of time and a lot of hard work going to law school. You could have chosen many different professions within the law. Why did you choose to work at Becket? What drew you to it?
Will: I suppose, in one sense, I chose it, but it was kind of put before me. I guess I would say it chose me.
I didn’t intend to go to law school to litigate religious liberty. But while I was at Catholic in D.C., I worked for now-president of the Becket Fund, Mark Rienzi.
While I was working as his research assistant, the Little Sisters of the Poor case began. Hobby Lobby began. And the idea that the government would say in the name of community, what we think is really necessary for a place where all people in society can meaningfully participate, we’re going to exclude from the community people whose entire mission is to care for the elderly, poor and dying, to the tune of $70 million a day.
And why? Because we, the government, who was able to put a man on the moon and figure out how to dispense contraceptives without Catholic nuns. That really struck me as astonishing then, and it still does now.
I know that my life is a gift from God. I know that he continues to form and shape me toward what he has shown to be true. That wouldn’t happen without religion’s presence institutionally in our society. So, to be at a time and a place when religion’s institutional presence in society is under threat, where we risk losing the ability to shape and form members of our society in how to truly govern themselves, how to truly be free, how to truly have the kind of responsibilities of citizenship in this world and in the one to come – that’s so necessary for a flourishing life.
Tom: Amen. I completely agree. Will. For people to support you, to support your work, to follow the case, what’s the best place for them to go?
Will: They should go to becketlaw.org, where they can learn everything about the latest development, in this case in Montgomery County and all of our litigation generally. You can donate, and you can learn about all of our other projects to support and advance this foundational principle in America of religious freedom.
Tom: Will, thank you so much for taking the time, and best of luck with this case. We’ll be following it closely.
Will: Thank you very much. Take care.