A previous article reviewed Professor Robert George’s remarks on parental rights at the Heritage Foundation on May 29. The first of two following panels discussed the Mahmoud v. Taylor case, now before the Supreme Court, in which Montgomery County, Maryland parents are seeking opt-outs for their children from instruction in pro-LGBT story books, and also the now 100 year old Pierce v. Society of Sisters case, which declared that parents have the right to direct their children’s education.
Sarah Perry, formerly a legal expert at the Heritage Foundation’s Meese Center and now Vice President and Legal Counsel of Defending America, moderated the first panel, which included Howard Slugh, founder and President of the Jewish Coalition for Religious Liberty, Eric Baxter, Vice President and Senior Counsel of the Becket Fund for Religious Liberty, who recently argued the Mahmoud case before the Supreme Court, and Melissa Moschella, Professor of the Practice, Philosophy at the University of Notre Dame. Her interests are philosophy, political philosophy, and law. She is the author of To Whom Do Children Belong?
A First Amendment (Religious) Basis for Parental Rights
Slugh believes that it is important to defend parental rights, in particular the right to raise one’s children in one’s faith in other ways than through the use of the Pierce decision, which is based on substantive due process, which allows courts to read into the Fourteenth Amendment whatever they think is just. Substantive due process is not based on the text of the Constitution, and has been used to ground rights to abortion and same-sex marriage. Use of substantive due process, he said, “is playing with fire.” These really are court recognized rights, which can be taken away by future decisions. One court recognized a right to “adequate education.” Thus, “adequate education” could be used to overturn parental rights.
Slugh focuses on the First Amendment as an important route to establishing parental rights, while he thinks Pierce can have a supplementary role. He conceded that the First Amendment protects religious parents more than secular parents, but it is nevertheless quite an important basis for religious liberty, and “has gotten much stronger in the last few years.” A problem in New York with Jewish yeshivas is the claim that children not in public school must receive “substantially equivalent education” to what is given in public schools in their district. Against this, he said, the legal landscape in New York for defending religious education is not strong. Thus, he proposed appeal to the First Amendment as a good defense.
But here the Employment Division v. Smith decision (1990) is a major obstacle, because it says that religious liberty is no defense against neutral generally applicable law. Church of the Lukumi Babalu Aye v. City of Hialeah (1993) ameliorated somewhat the effects of the Smith decision, since it said that facially neutral law crafted in such a way as to target particular religious belief or practice is unconstitutional. Also, the cases relating to the coronavirus shutdown held that regulations which effectively targeted religious practice, allowing abortion facilities and bars to remain open when houses of worship were closed, were unconstitutional. The Supreme Court said in those cases that it was not necessary to show, as was shown in Lukumi Babalu Aye, that all comparable secular activities were receiving better treatment than the religious activity in question, but only one secular example of better treatment needs to be shown. In a second set of cases ending in Fulton v. City of Philadelphia (2021) said that if exemptions to a law are available to a secular organization, they must also be given to a religious organization (here a Catholic adoption agency).
Slugh said that the Wisconsin v. Yoder decision (1972) “might be an exception to Smith.” This decision allowed Amish children to be educated by their own teachers, rather than in the state approved system. It was based on a “hybrid right” of religious freedom and parental rights. Additionally, Slugh said that state constitutions may provide greater religious freedom than is allowed in the Smith decision at the federal level. Also, there may be state Religious Freedom Restoration Acts (RFRAs) that would grant more religious freedom than is allowed under the Smith decision at the federal level. He raised the possibility that with the erosion of Smith, the federal RFRA might be rewritten to make it apply to the states.
Defending the Substantive Review Basis of the Pierce Decision
Melessa Moschella said that it is important to protect the rights of secular parents, and for that, the best option is the due process clause. In the area of parental rights, “that is what we actually have legal precedent for.” She conceded the dangers of judicial activism with the due process clause, but we can guard against this with the so-called Glucksberg test, “which limits unenumerated rights to those which are deeply rooted in our nation’s history and tradition.” She said “if there’s any right that passes these historical tests with flying colors, it’s the right of parents to direct the education and upbringing of their children.”
These constitutional rights “are both broad and strong.” That is to say that they include more than the right to send one’s children to a private school, and any violations “merit strict scrutiny.” The “deeply rooted” rights involved are held to be “the parents’ pre-political obligations to educate, maintain, and protect their children.” Any role the state has in the upbringing of children is “subsidiary” to that of parents. The state specifically has an interest in ensuring that the parents are “at least minimally fulfilling” their duties, and to help parents if necessary. The state can interfere in parental rights “only in exceptional cases” according to the early nineteenth century common law jurist Joseph Story, where there is evidence of “gross misconduct.” As far as the education of children is concerned, she said that another common law jurist, James Kent has said that the “educational minimum” the state can require parents to provide is “basic literacy, numeracy, and basic knowledge of the law.”
Moschella observed that “the text of Pierce lists four things that are within the state’s educational regulative powers;” These are “1) All children of proper age attend some school (which is broadly construed to be receiving any form of education),” 2) “That teachers shall be of good moral character and patriotic disposition, 3) that certain studies plainly essential to good citizenship must be taught … and 4) nothing be taught which is manifestly inimical to the public welfare.” She said that “that’s pretty strict.” But Moschella said that “any educational action falling outside these four categories would therefore be one in which constitutional questions are raised.” Requiring all children to attend public schools “has no reasonable relation” to any purpose “within the competency of the state.” The Oregon law addressed by the Pierce decision, therefore, fell outside what the state can constitutionally require.
She also noted that jurisprudence from the nineteenth century on has upheld the right of parents to direct the education of their children even in the public schools. In seven out of eight cases coming from the public schools, parents prevailed in their claim to exempt their children from some part of public education. State supreme courts ruled that parents had a primary right to control their children’s education and thus could exempt their children from objectionable parts of the public curriculum. The Oklahoma Supreme Court notably maintained that parents retain complete control of their children’s education, “even after the introduction of compulsory education.” The court also denied that the act of sending children to public schools “is a delegation of parental authority” to public education officials. She said that the Pierce decision was “implicitly applying what today would be called the strict scrutiny test.”
Eric Baxter said that the Mahmoud case is a “rubber meets the road” case with parental rights. He described briefly some of the pro-LBGT stories that introduced pre-K to fifth grade students to the LGBT world and found the “most shocking” to be a story in which a child is told that gender is however you feel at the moment. This writer would add that since LGBT liberation commonly involves the demand for accommodation to whatever one’s identity holds to be necessary, this doctrine of what it means to be LGBT would dissolve all laws.
Many parents wanted to opt their children out of the curriculum, but in March 2023, the Montgomery County School Board denied opt-outs. Muslim and Ethiopian Orthodox parents “led this fight” in religiously diverse Montgomery County but were told by school board members that they “were aligning themselves with xenophobes and white supremacists” and that their children “were just parroting their parents’ dogma.” He noted the irony that advocates of the Oregon law voided 100 years ago by the Pierce decision were openly prejudiced, attacking the Catholic immigrants of that day and seeking to “Americanize” immigrant children in a homogenous culture.
Questions about Defending Parental Rights
Moderator Sarah Perry asked panelists how they would respond to Dr. Amy Gutmann’s claim, noted in the previous article, that there is no a priori reason to favor parents over the state in the care of children. Moschella said that there are many reasons. These include “principled reasons,” “empirical data about who is generally the best decision maker,” “reasons rooted in democratic theory” which say that the government is manufacturing consent to its policies if it educates children, and above all, “the very nature of the parent-child relationship” from antiquity. Only with the rise of progressive education has there been the claim that “expert educators” should be “on par with, if not considered superior to” parents. Parents, she said, “know best, parents care most, and parents have the most alignment of interests in terms of actually wanting to promote the best interest of their children.”
Perry asked if substantive due process is the only basis for defending the rights of secular parents, or could one raise the Privileges and Immunities Clause or the Ninth Amendment to defend their rights. Slugh said that he favors the Privileges and Immunities Clause, but the Supreme Court has “put that on the backburner” since the Slaughterhouse-Cases in the nineteenth century. The Ninth Amendment (which is sometimes held to guarantee unenumerated rights) has no limiting principle and therefore could be used to find any right a court wanted. It is, he said, as Judge Robert Bork had said, an “inkblot” in the Constitution. The Ninth and Tenth Amendments, he said, are likely just “stating that federalism exists.”
Perry then asked why parents who appeal to the Due Process Clause in support of their right to know about so-called “gender transitions” at school are currently unsuccessful in court. Baxter said the difficulty is that courts are reluctant to read into the clause meaning based on someone’s claimed sense of justice. But he said that once the rights of religious parents are recognized, “there is little sense in the public schools denying other parents” the same rights. He noted as well that among the American founders, parental rights were held to be “absolute against all the world.” This founding principle needs to be developed to make it usable today, Baxter believes.
Baxter said he hopes that the Supreme Court does not decide the Mahmoud case on an “animus” standard, as school boards can easily require pro-LGBT curricula simply by avoiding hostile statements. Maryland law, he said, already requires opt-outs with “family life and human sexuality” issues in high school, but not at the pre-K and elementary level. The court could thus find that Montgomery County’s denial of opt-outs is not neutral and generally applicable. The Yoder decision could be used to require opt-outs, if the court decides to use it in a case not involving the Amish. The Smith decision left Yoder intact, because it involved both religious freedom and parental rights, which is also the case in Mahmoud.
A questioner suggested that the doctrine of free speech implies freedom of thought and thus forbids government indoctrination. Would this be a good argument, he asked. Moschella said that legal scholar Philip Hamburger has said that ideological indoctrination means that parents are being forced to expose their children “to the state’s preferred speech” rather than the parents’ speech, and thus maintains that the right to free speech is being violated.
It was asked how the meaning of the public interest could be constrained to ensure that parental rights are not easily overridden. Moschella referred to jurist James Kent’s holding that the essential elements of education that the state should require are “literacy, numeracy, and basic knowledge of the law.” If this is the maximum the state can require, it cannot be expanded based on “public interest.”
Another questioner asked what it will say about the future of parental rights in America if, as expected, the parents win in the Mahmoud case. Baxter said that we don’t know what the outcome of the case will be, but this is an issue that cuts across ideological lines with the public. People find “very offensive” the idea that they cannot control their children’s instruction in sexual issues. He expects that after the decision is made – assuming it is favorable to parental rights – the skeptical legacy media will fall in line and support it. He said that it also took courage for parents “to put their name on a lawsuit” and “go through two years of litigation.” People also need to understand what parental rights “entail,” and the common religious justification for them, which will, as stated above, also benefit secular parents.
A second panel at the Heritage Foundation focused on funding for private and/or religious education, and will be reviewed in a subsequent article.
It can be viewed here.
Comment by Diane on June 20, 2025 at 8:24 pm
As a retired public school kindergarten teacher, I’m aware that a few parents are beyond terrified that a child’s environment, ie, whatever’s in the drinking water, will turn their kid gay, trans, or “communist”. They’re like the superstitious 1692 Salem evangelical Christians – if one’s dog dies, surely the witch nextdoor cast a spell to kill off said dog. During my first year teaching (in Maryland, no less), faculty women in my elementary school were forbidden to “crossdress” because parents in the conservative school district next door to Montgomery Ciunty believed women who chose to don “men’s wear”…as, slacks or an outfit similar to what Melania Trump enjoys wearing…would cause vulnerable children to become gender-confused. Yep, they believe that’s how kids develop gender dysphoria. A father of one of my kindergartners boasted that his daughter would be wearing a dress every day so she’d know she’s a girl. Years later, another parent was livid, accusing me of having a gay agenda and wanting his son transferred to another class, all because I’d exposed his child to male ballet dancers when my students watched the Nutcracker Ballet. The kid’s dad believed every male ballet dancer is gay…when his son came home and announced he wanted to be a ballet dancer, his dad was certain the curriculum was turning his son gay. And a mother asked me to opt her son out of all art activities because she was afraid he’d want to be an artist (he loved to create exceptionally detailed drawings) and, “you know,” she said, “that could lead him to turn gay…and besides, there’s no money in being an artist”. She begged me to push sports activities. Another mom was upset when her child came home singing Jingle Bells, which she claimed was a religious song she didn’t want introduced to her son (the mom was a Jehovah’s Witness). Still another parent called the state department of public instruction and complained that I was teaching her daughter communism because her kid came home and said she was learning lower and upper case letters (the mom settled down when explained those terms translated to learning big and little letters). Now all these beliefs are ludicrous in my mind, but they are based on the sincere religious beliefs of these parents. They’re no different than the religious beliefs that cause parents to oppose storybooks with lgbtq characters in Montgomery County schools. They’re parents are paranoid that exposure to these books will turn 5heir kids gay or trans. The conservative judges on the court are likely to agree because they, too, subscribe to fear-based religion. Welcome to Salem.
I get parents are very protective of their children, but books with lgbtq characters are not teaching their kids sex. The books will not harm their children. They’re not going to turn their kids gay, trans, or left-wing liberals. The courts ruled twenty years ago in a similar case in Massachusetts that public schools are charged with preparing children for citizenship in a pluralistic democracy and as such, children would likely be introduced to topics that might occasionally offend parents’ beliefs. However, the courts ruled that as long as students are not coerced to agree with a topic and lessons are short/infrequent, as is the case with reading aloud a storybook, no indoctrination has taken place. Further, the courts said, no undue burden on religious freedom has occurred, as parents have plenty of time to instill their values at home on a daily basis. The Massachusetts school system was allowed to keep picture books in classrooms with lgbtq characters and after two decades, those kids have grown up and are doing just fine.
What’s interesting about the Montgomery Co, MD, parents who want their kids opted out is the fact that they’ve never been vocal about Pet Smart stores in the county. For several years, Pet Smart stores across the country have displayed life-size posters of gay designer couple Nate Berkus and his husband Jeremiah Brent in a close, loving pose. The couple designs furniture to hold aquariums and sells their brand nationwide at Pet Smart. Kids visiting Pet Smart are not turning gay.
It’s also clear that these controlling parents expect other teachers to put up with having their instructional time disrupted when their opted-out children require an escort to their classroom to avoid hearing a story with lgbtq characters. As an educator, it’s common for opted out children to be assigned a seat in the corner with a dull worksheet. It’s like punishment to the opted out kid..most teachers don’t want to babysit those kids.
One Montgomery County teacher has already posted on another site the likely scenario if these parents get their way: the opted out kids will undoubtedly learn from their classmates what they missed while out of the classroom. Kids talk. Obviously, these parents won’t be able to “protect” their kids…best bet is to homeschool them or send them to a private religious school.
Comment by Different Steve on June 21, 2025 at 7:31 am
Chatgpt reaction:
Diane, I appreciate your long career in early childhood education and the vivid anecdotes you’ve shared. It’s clear you’ve encountered a wide range of parental beliefs — some quirky, some frustrating, and some deeply tied to religious or cultural values. That said, your comment ultimately dismisses concerns about parental rights in a way that oversimplifies what’s at stake in the Mahmoud v. Taylor case and others like it.
Your examples — from Nutcracker ballet panic to “upper/lower case letters as communism” — illustrate the extremes. But most parents asking for opt-outs aren’t reacting to slacks, ballet, or Jingle Bells. They’re requesting the basic right to be informed about, and to opt out of, storybooks that explicitly introduce gender identity concepts to young children — a right they previously had and which was revoked without accommodation. The state’s denial of even minimal opt-outs is what triggered the legal action, not some sudden wave of paranoia.
You reference the Massachusetts court decision (Parker v. Hurley, 2007), which indeed held that schools are not obligated to shield students from ideas they might find offensive. But even that case allowed for the possibility of coercion or excessive burden being constitutionally relevant — and it didn’t involve a situation where opt-outs had been previously granted and then abruptly rescinded. In Mahmoud, we’re talking about a sudden policy reversal that offers no middle ground, even for religious communities with long-established protections under both federal and state law.
Dismissing parents’ concerns as “fear-based religion” or likening them to Salem witch trials does little to engage the actual legal and constitutional questions: Can the state override parents’ fundamental rights to direct their children’s upbringing — particularly in matters of religious conscience — simply because the curriculum is deemed neutral or inclusive? That’s the real issue.
Moreover, your point about PetSmart posters is a red herring. Retail marketing and required classroom instruction are not equivalent. One is a private environment where a family can choose to walk away; the other is a government-mandated setting where children are compelled to attend and parents are legally required to entrust their kids to state oversight. That distinction matters when we’re talking about constitutional rights.
And finally, the suggestion that parents who don’t like public school policies should “just homeschool or go private” is deeply problematic. It implies that only those willing to abandon public education deserve meaningful rights. That’s not how equal protection or religious liberty works. Public education is for everyone, and that includes families who disagree — respectfully — with some of the content being taught.
We can respect teachers’ needs and instructional time while also recognizing that parental rights don’t vanish at the schoolhouse door. Finding a balance that respects both is precisely the job of courts and lawmakers — not to ridicule one side of the discussion as relics of superstition, but to ensure fairness in a pluralistic democracy.
Comment by Mike on June 21, 2025 at 4:36 pm
Different Steve:
Thank you for a very well reasoned answer, and for knowing the difference between government coerced actions versus market place actions.
Comment by Mark on June 23, 2025 at 12:06 pm
Different Steve,
Since you enjoy critiquing other people’s comments on here by using AI so much, I thought why not let the bots do all the work and critique the original article itself. So I did. Here’s what it came back with. Please note that these do not necessarily reflect my own opinions on the matter. In fact, I deliberately used an anonymous account with no previous interactions with ChatGPT to make the request so as to limit the risk of it trying to formulate answers based on biases and preferences it would have deduced and sought to mirror from past interactions. This is something you too should consider if you’re going to continue to use ChatGPT to do your homework like this.
1. Bias and Framing
Despite its formal tone, the article is not neutral in presentation. Several rhetorical choices reflect a clear ideological bias, weakening its objectivity:
Use of emotionally charged language: “doctrine of what it means to be LGBT would dissolve all laws” is hyperbolic and unsupported.
Frequent invocations of religious liberty as a superior right without exploring secular or pluralistic counterpoints.
Describing parental opponents of LGBT-inclusive curricula as victims of “xenophobe” accusations, while failing to critically examine whether those claims had factual merit.
Effect: This creates an echo chamber effect, where arguments from one side are treated as self-evidently correct, and opposition is portrayed as unreasonable or hostile.
2. Straw Man Arguments and Oversimplification
The article presents Dr. Amy Gutmann’s position—that there’s “no a priori reason to favor parents over the state”—in isolation, only to immediately rebut it with a parade of arguments favoring parental supremacy. There is no serious engagement with Gutmann’s philosophical reasoning.
Similarly, the statement that LGBT perspectives “dissolve all laws” misrepresents gender identity theory. It’s a straw man fallacy that collapses a nuanced idea (fluidity of identity) into a caricature of lawlessness.
3. Neglect of Counterarguments
Several key legal and philosophical questions are ignored or underexplored, such as:
The state’s interest in promoting social cohesion and anti-discrimination.
Whether parental rights might conflict with children’s autonomy or best interests.
How pluralistic societies should navigate conflicting values in public education.
There is also no discussion of:
The potential harm of opt-outs to LGBT children or children of LGBT families.
The countervailing view that public schools are meant to serve all citizens, not just religious ones.
This omission leaves the article lopsided, weakening its credibility.
4. Weak Use of Analogy
Comparisons between current school boards and 100-year-old nativist lawmakers (who supported the Oregon law in Pierce) are simplistic and misleading. The analogy implies a moral equivalence between opposing religious opt-outs today and historical bigotry against Catholics, without examining how context, power structures, and the nature of inclusion/exclusion have changed.
5. Reliance on Unfalsifiable Claims
Statements like “parents care most” or “parents know best” are presented as self-evident truths without acknowledging:
That not all parents act in their children’s best interest.
That these claims are normative, not empirically verifiable.
🔍 Logical Fallacies or Flaws in Reasoning
Type Example Problem
Straw Man Claim that LGBT inclusivity “dissolves all laws” Misrepresents gender identity as inherently anarchic
Appeal to Tradition Use of historical jurists (Kent, Story) to set strict limits on education Doesn’t address modern pluralism or changed social conditions
Slippery Slope Warning that “adequate education” could be used to “overturn parental rights” No evidence this has occurred or is likely
False Dichotomy Framing the debate as “parents vs. the state” Ignores children’s rights and interests as an independent concern
Hasty Generalization Reference to 7 of 8 historical cases where parents won Not necessarily indicative of contemporary legal norms or complexity
📌 Overall Assessment
Objectively, the article:
Is well-researched and grounded in legal precedent.
Offers valuable insight into a conservative-libertarian legal strategy on parental rights.
Fails to provide balanced analysis, exaggerates opposing views, and over-relies on ideological reasoning.
Lacks robust consideration of secular, pluralistic, and child-centered counterarguments.
For those already aligned with its viewpoint, it reinforces pre-existing beliefs. For broader audiences, it may appear one-sided or ideologically rigid. A stronger article would have either:
Engaged critically with competing views, or explicitly acknowledged its advocacy perspective and the normative values driving it.
Comment by Rick Plasterer on July 30, 2025 at 6:35 pm
When I saw the AI generated critique of my article several weeks ago, I thought that there is no point in responding, because one can argue endlessly on any point, and there isn’t space in the article or comments to do that. But now I feel I should respond for anyone still looking at the article and its comments.
The article covers a presentation at the Heritage Foundation, a conservative Washington think tank. I don’t purport to do other than write articles from a conservative religious and political viewpoint. The AI’s task was to give a balanced evaluation based on available online text about the conflict between parental authority and state authority, which therefore included text written from a liberal/left viewpoint.
Balance is in the eye of the beholder. I remember the Soviet invasion of Czechoslovakia and the Solidarity movement in Poland. News coverage clearly indicated that Solidarity was right and the invasion of Czechoslovakia was wrong. Only the Communist Party U.S.A. would have thought this coverage unbalanced.
There finally has to be a decision between parents and the state on who directs the socialization of children and the facts and values they’re exposed to. As Prof. Robert George said in the first article in this series, children are not owned, but do “belong” to their parents, who gave them life and have a natural interest in their welfare. Parents are in process of raising their children, interact with them daily, and thus know their child better than any state employee. The state may think its experts know “the best interests of the child,” but the state is moved by different doctrines. As I said in response to a critical comment to another article in this series, at the time of the Pierce decision, the favored view was Protestant Christianity, today it is homosexual and transgender liberation, in Vietnam, it’s Marxism-Leninism. The natural parent-child relationship should indicate a final verdict for parental authority.
Comment by Rick Plasterer on August 23, 2025 at 10:54 pm
I should also have mentioned that LGBT identities, rooted as they are in behaviors and inclinations, do indeed dissolve all laws if consistently applied. This is because the inner life of the person is held to be an inviolable part of humanity. There can be no adverse judgment (discrimination) against them. Immutable characteristics, such as skin color or sexual anatomy can be held free and equal. Under our free speech regime, one can argue that they are unequal, but that has no effect in court. However, if personal characteristics held free and equal, then even homicidal maniacs or kleptomaniacs could claim their behaviors cannot be discriminated against. So personal characteristics must be open to adverse judgment.
Rick