Yesterday, in Mahmoud v. Taylor, the United States Supreme Court heard oral arguments directed at this specific question: “Do public schools burden parents' religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents' religious convictions and without notice or opportunity to opt out?” Definitely a bad public policy, but something seems amiss to me when the Free Exercise Clause is needed to defend parental rights in public schools.
When the Supreme Court’s justices answer a constitutional question, they usually think about how the constitutional precept they employ might be applied in other contexts. Consider this one: What if Christian parents argued the Free Exercise Clause mandates an opt out from any public school class that teaches an evolutionary theory of anthropology and cosmology? Such a curriculum effectively denies any metaphysical realities or, at best, allows for Deism. Would an opt-out also be constitutionally mandated for these parents?
When the constitutional question is placed in this broader religious context, one begins to wonder how public schools can even function in a religiously diverse nation, particularly if a religion relates to the whole of life, as Christians believe. The folly of a religiously neutral public education should be apparent.
But in any event, the state does not prohibit the parents from sending their child to a non-public school. An alternative educational environment may be costly, but this is not a state compelled form of education. Consequently, the complaint of burden on religion can be relieved without a questionable application of the Free Exercise Clause.
Last week, I explained how the Free Exercise Clause and the Establishment Clause were designed to work in tandem to achieve one purpose, a prohibition on the erection of a national ecclesiastical hierarchy.
How, then, does a particular state’s public school “only sex” curriculum raise the specter of that happening? It doesn’t, in my opinion.
So, why, would Christians want to perpetuate the Court’s wrong interpretation of the Free Exercise Clause? Was that the only option available to these parents?
No. Over a century ago, the U.S. Supreme Court held that parental rights were protected against state infringement by the Fourteenth Amendment’s Due Process Clause.
I will discuss this question in greater detail on Friday in my podcast, "God, Law & Liberty,” but here is my short answer: Because winning straight up on parental rights is too risky.
Why is that? Because recent United States Supreme Court decisions have proved that the justices can’t be trusted to get it right. Even with the reversal of Roe v. Wade, its constitutional jurisprudence still does not recognize the true, God-given meaning of the relationship between a mother and the child she wants to kill. And, in 2015, in Obergefell v. Hodges, the Court declared its ignorance about the true, God-given nature of a marital relationship as between a man and woman who become husband and wife. Why should anyone think a majority of the justices can get the parent-child relationship and its substantive content correct when it has gotten the two predicates for it wrong?
In sum, though education has long been held within the scope of a parent’s rights, our nation’s family law jurisprudence is so wrong that hoping for a Christian view of education on the topic of sex at a constitutional level is perhaps chimerical.
So, the thinking might be that it’s easier to win in court if the argument is grounded in religion and its precepts relevant to human sexuality. They are a little more objectively identifiable than “educational rights”. And, perhaps most importantly, the Justices can carve sex talk out the general curriculum without the risk of upsetting the other forms of indoctrination that take place public schools.
I understand the urge to win in court. And winning can certainly be defined as stopping a bad thing in the moment, in this case, the exposure of young children to gender theory. But choosing to win in the moment needs to consider what might be lost over the long term.
That is why I began with a hypothetical regarding curriculum laced with evolutionary explanations of anthropology and cosmology. Acquiescence to indoctrination on those points has led us to the position we are now in before the Supreme Court.
Dutch theologian Herman Bavinck predicted as much in 1901, :
He who fully accepts the theory of development in the sensual, observable world cannot dismiss it at once and without explanation when spiritual phenomena appear. Even though provisionally a small domain is then set aside for faith, this domain is bound to become ever smaller.
One fortification after another must then be sacrificed, one line of defense after another be abandoned, and one concession after another be granted. There is no immovable conviction in these conservative dualists, no strength of faith, no enthusiastic courage. And hence they are ever bound to lower the flag before the radicals, who have the courage of their convictions, who shrink from no inferences, and who, beginning and continuing without God, are determined also to end without God. . . .
Conservatives and liberals die out, but the radicals and socialists are to be the leaders of the twentieth century. They have agreed to hold a total and final clearing out of whatever of the old Christian world-view consciously or unconsciously still remains in our laws and morals, in our education and civilization.
What he said has proven true. A domain of true parental rights under God has turned into a jurisdiction limited to sex eduction being protected by a wrong interpretation of the Free Exercise clause.
I think Christians need to stop being conservatives and be Christian again. We need to engage in the long-term work of recovering the true meaning of our Constitution. And we need to rebuild a Christian view of the family in our state to inform the policy decisions that the Constitution left to the states.
Might we suffer some loses in the interim? Probably. That is when we will need to pray that the “trial of [our] faith, being much more precious than of gold that perisheth, though it be tried with fire, might be found unto praise and honour and glory at the appearing of Jesus Christ” (1 Peter 1:7, KJV).
