Originally published in Deseret News.

Can schools tell parents they cannot direct how their children are taught about sensitive topics in public schools, even when the law gives parents that right? The U.S. Supreme Court held oral arguments in a case, Mahmoud v. Taylor, that raised that question on Tuesday morning. The court should now clarify that depriving parents of a widely recognized right is the type of burden the Constitution is intended to prevent.

The questions asked during the argument suggest that the justices are inclined to do that.

The case involves a dispute between parents and their local school district in Maryland. The parents are motivated by different religious faiths but share a conviction that they are responsible for how their children are taught sensitive topics about sexuality and gender. When their local school district introduced books about gender identity in early grades, the parents asked to excuse their children from this instruction. The district initially agreed. But later, the district announced it would no longer honor the parents’ requests to opt their children out, citing concerns about administering the opt-outs, possible absenteeism and risks to other children’s feelings.

This case raises the question of whether revoking parents’ ability to direct how their children are taught about sensitive topics burdens their religious beliefs. The divided federal court of appeals panel which previously heard this case said no.

The judges on that panel needed to differentiate the current case from a prior precedent. In the prior case, the U.S. Supreme Court ruled that Amish parents have the right to excuse their children from attending school after 8th grade. This ruling was based on the belief that children at that age should focus on preparing for a religious vocation, which secondary education would interfere with.

In reality, it is pretty simple to see how the district’s actions in the Maryland case significantly burden the religious practice of the parents seeking accommodation of their beliefs. A brief filed in the Supreme Court by Sutherland Institute explains how by pointing to a remarkable consistency in the states’ laws.

The state of Maryland and virtually every other state (there are three possible exceptions) recognize the right of parents to excuse their children from instructions about sexual topics. Typically, the laws require schools to notify parents of the planned teaching, to allow parents to review curriculum materials, and to empower parents to excuse their children from the discussions for religious or other reasons. Most states will teach the children unless the parents object (opt-out), but others require the parents to give affirmative consent before including a child in the instruction (opt-in).

This broad consensus among the states, including Maryland, makes the burden clear. The parents simply ask for the ability to fulfill their religious obligation to direct their children’s education on these sensitive topics. The district is unlawfully denying an accommodation available to nearly all other parents nationwide.

That near-universal consensus also illustrates why the district’s excuses for not honoring the parents’ wishes are not compelling. Maryland and nearly all other states recognize this accommodation is feasible and desirable. Whatever extra work it requires for the school pales in comparison to the burden it places on the religious practice of children and their parents.

State and local laws and practices designed to accommodate the religious practices of citizens, like those of the states described in our brief, should be encouraged. They can prevent expensive and time-consuming lawsuits and assure religious organizations and people of faith that their rights are secure.

In this case, the district’s actions have the opposite effect. They signal that the accommodations elected representatives adopt cannot be counted on when they run contrary to ideological preoccupations. That sets a precedent with wide-ranging negative implications. The Supreme Court should prevent this result by vindicating the rights of the parents against the burdens the school district has placed on the exercise of their religion.