Perspective: What Montgomery County schools should have learned from the Masterpiece Cakeshop decision
In the 2018 Masterpiece Cakeshop case, a Christian baker named Jack Phillips declined for religious reasons to make a custom wedding cake for a gay couple. In its decision, the Supreme Court offered Americans a blueprint for thoughtful engagement in contentious cultural battles. It cautioned those on both sides of the conflict to recognize the complexity of the dispute and navigate their differences carefully.
Unfortunately, recent conflicts involving religious dissent over LGBTQ curricula in public schools shows that Americans still have much to learn.
In Masterpiece, after the gay couple filed a complaint with the Colorado Civil Rights Commission, various commissioners described religion as “one of the most despicable pieces of rhetoric that people can use to ... hurt others” and compared Phillips to people in history who used their religious beliefs to defend slavery and the Holocaust.
For the court — including liberal justices Elena Kagan and Stephen Breyer — this language went too far. It “disparage(d) (Phillips’) religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical — something insubstantial and even insincere.”
Altogether, the commission’s discussion in its hearings showed “lack of due consideration for Phillips’ free exercise rights and the dilemma he faced,” the court said.
The Masterpiece decision built on an earlier precedent, established in Church of Lukumi Babalu Aye v. City of Hialeah, involving a discrete religious minority.
Followers of the Afro Caribbean religion of Santeria use animal sacrifice as a form of worship. Soon after Santeríans in Hialeah, Florida, announced they were establishing a church, residents began to complain that the Santeríans’ practices were “inconsistent with public morals, peace or safety.” To appease the local citizenry, Hialeah city officials passed ordinances regulating animal sacrifice selectively — they permitted sacrifice for state-licensed activities but prohibited it for sacrifice or slaughter. Because government officials had targeted the Santeríans, the court struck down the Hialeah law. Indeed, Hialeah’s biased decision-making was so constitutionally offensive that it led to the unanimous opinion, uniting conservative and liberal justices.
Procedural fairness is key to navigating contentious cultural battles, particularly when religion is involved. While many news headlines about Masterpiece were sensationalized, the court’s entire opinion turned on procedural fairness. As the court explained in Lukumi and again in Masterpiece, the government’s failure to demonstrate neutrality toward religion violates the free exercise clause.
Yet, government officials have not learned their lesson. Take, for instance, the battle raging in Montgomery County, Maryland, where the Montgomery County Public School District recently introduced an LGBTQ curriculum for students beginning in pre-K.
According to complaints filed by parents suing the district over their inability to opt their children out, the elementary school curriculum includes a variety of books on sexual orientation and gender identity, accompanied by resource guides that, in part, instruct teachers to tell children that people only “guess” a person’s gender based on body parts.
In another instance, with regard to a book on same-sex romance on the playground, the teacher is to encourage students to explore their romantic feelings. If a student expresses resistance, the teacher is instructed to tell them they are being “hurtful.”
Predictably, religious parents with traditional beliefs about gender and sexuality have expressed concerns. The Montgomery County Public School District should have known to tread carefully. Instead, while the school district initially gave parents the chance to opt-out their kids, it rescinded the option after parents began raising religious objections. Now, Muslim and Christian parents have sued the school district, demanding their constitutional rights be respected.
Parallel to the lawsuit, concerned parents and students have testified before the county board of education — and faced yet another cast of government officials seemingly flippant about the complexity of the dispute before them.
For example, after parents requested opt-outs at one board meeting, the board chairwoman, Lynne Harris, accused them of perpetuating hate: “Saying that a kindergartner can’t be present when you read a book about a rainbow unicorn because it offends your religious rights or your family values or your core beliefs is just telling that kid, ‘Here’s another reason to hate another person.’”
Harris later made a similar comment in reference to parental testimony: “Yes, ignorance and hate does exist in our community.” A council member also compared the (Black and brown) Muslim group of concerned parents to “white supremacists” and “xenophobes.”
No one on the board disavowed the comments, nor did they object after a member of the Montgomery County Council picked up the theme, claiming that concern over the LGBTQ curriculum puts “some Muslim families on the same side of an issue as white supremacists and outright bigots.”
It’s as if Montgomery County school officials read the Lukumi and Masterpiece playbooks and decided to break all the rules.
This is good news for the families suing the school district, as it increases their chance of prevailing. On June 12, the families filed a motion for a preliminary injunction (which functions like a temporary restraining order), arguing that the “School Board’s no-opt-out policy separately violates the Free Exercise Clause under Lukumi and Masterpiece because it targets religious exercise.”
But it’s bad news for a country that continues to struggle with extreme cultural divisiveness.
Related
In recent years, the U.S. Supreme Court has heard multiple cases pitting religious dissenters against LGBTQ persons. Just last week, the U.S. Supreme Court decided that the government could not force a website designer with religious objections to same-sex marriage to create wedding websites for LGBTQ couples; to do so would violate the designer’s free speech rights. While the court acknowledged that speech can sometimes offend people, it said that speech is protected, nonetheless.
That was the first time the court had spoken directly on religious dissent. When faced with the issue before, the court was less interested in whether something could be said and more interested in laying the ground rules for thoughtful engagement in contentious cultural battles.
Unfortunately, as the conflict in Montgomery County shows, Americans continue to prefer conflict over peaceful negotiation.
As parents and school officials become further embroiled in the lawsuit and ongoing protest rallies, with one side denigrating the beliefs and traditions of the other side, student observers are not learning inclusivity, kindness or acceptance. There is no lesson on civility or positive engagement over differences.
Lukumi’s and Masterpiece’s lessons about coexistence are being rejected for a future of escalating tensions, where religious voices — including the voices of religious minorities —are quashed.
Asma T. Uddin is an attorney, a Deseret contributing writer and author of “When Islam Is Not a Religion: Inside America’s Fight for Religious Freedom” and “The Politics of Vulnerability: How to Heal Muslim-Christian Relations in a Post-Christian America.”
