The Supreme Court's Cases on Gender Storybooks and ObamaCare
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The Supreme Court hears two big cases this week, one on whether religious parents have a First Amendment right to opt out of gender storybooks in public elementary schools, and another on the Obamacare task force that decides what preventative care must be free for patients. Welcome, I'm Kyle Peterson with The Wall Street Journal. We're joined today by my colleagues, editorial board member Colin Levy and columnist Alicia Finley.

The First Amendment guarantees citizens free exercise of religion, but does that mean a right to accommodations in public school curriculum? That was the question for the Supreme Court on Tuesday in a case called Mahmood v. Taylor.

This is a lawsuit brought by Muslim, Catholic, and Ukrainian Orthodox parents in Montgomery County, Maryland, who want to opt out of new storybooks on gender and gay relationships that the school board has added to the elementary reading program. Maryland County says that it added these books to supplement its programs to reflect the diversity of its families. It says it tried at first to accommodate parent requests to opt out of their children out of class, but

But that became unworkably disruptive because of unsustainably high numbers of absent students. Let's start with Justice Samuel Alito challenging that notion with the lawyer for the county. The plaintiffs here are not asking the school to change its curriculum. They're just saying, look, we want out. Why isn't that feasible? What is the big deal about allowing them to opt out of this? So

So, a couple of answers. I think on the facts of this case, we have the natural experiment of the schools permitting these opt-outs and then finding that it was not administrable. It wasn't true in every school. Well, why is it not administrable? You have, they're able to opt out of the health class, right? The health class is taught discreetly. There's a meeting for

mandatory meeting for all parents where they are told exactly what's going to be taught in it. And they're given the option of opting out of the unit of instruction, not the particular... Well, that's how you define the unit of instruction. You could define the unit of instruction to include the reading of these storybooks. And that's not compelled as a matter of Maryland state law. It's not compelled as a matter of state law, but why should it not?

And here on the other side of the ideological aisle is Justice Katonji Brown-Jackson prodding a lawyer for the parents. If they win this case and opt-outs are required, where will the opt-outs stop? What if a student group puts up love is love posters around the school featuring same-sex couples or trans youths?

Do parents have to have notice of this and the ability to opt their children out of going into the parts of the school where these posters are? Again, we don't think that any child has the right to dictate what the school does or what other students say. No, they're not dictating. They just want an opt-out. They don't want their children walking in the... We think they would lose in that situation. Why? What about your principle does not also mean...

that if we have a section of the school with love is love posters and children who have to go through there, what about your principal says that a religious parent shouldn't be able to say, I don't want my kid walking in that part of the school.

Well, they would lose because the strict scrutiny analysis would favor the board in that situation because it would be impossible for the board to satisfy every student's needs about what's on the board. Colin, what do you make of this case and this dispute between the parents and the school board in Montgomery County? Yeah, it's an interesting one, Kyle. I mean, I think the justices...

We're really circling around that issue that we just heard in that clip with Justice Alito. Justice Brett Kavanaugh also touched on that. He said at one point, they're not asking you to change what's taught in the classroom. They're only seeking to be able to walk out so their children aren't exposed to things that are contrary to their own beliefs.

You know, I think there's certainly something to that. The argument that was made there that we heard earlier that this is a problem because, you know, the health class is somehow a separate part of the curriculum and therefore is easier to opt out of. I don't think that really holds. I mean, if I could just talk, you know, just as a parent for a minute, I think it's also worth remembering that this sort of school deference to parental judgment calls is already happening in a lot of different areas nationally.

in the schools on issues far less controversial than this one. You know, at the public school, middle school, where my kids attend, I got a thoughtful email in the past few weeks from a teacher letting me know that as part of the American History Unit, they were going to be watching the film Glory, which is obviously Hollywood's dramatic enactment of, you know, some of the tough moments of the war. And, you know,

This isn't particularly controversial except for the fact that the movie is rated R. So the teacher's email noted that the film had been a big success in recent years because it let the children see in detail many of the things that they'd been studying and really see it come to life. But, you know, the teacher also acknowledged that it was a judgment call and it was certainly a judgment call that could be made by the parents themselves.

So I think in the same way here, teachers do have discretion to handle these sorts of things directly with parents. And we're going to spend a lot of time parsing the legal issues. But I think it's worth coming back to the idea that students and parents and teachers

can interact in very reasonable ways here, you know, without sort of taking it always down to the wire. One thing I think is important to underline is the nature of the books at issue here. The county says that these are just stories with different characters. There are all sorts of traditional love stories, Cinderella, whatnot, that are read in public schools. And this is a different set of characters for those stories. But one reason that I don't find that quite persuasive is some of these books seem to have quite

clear messages. So I will read a couple pages from one of them called Born Ready, the true story of a boy named Penelope. This is about Penelope, who likes science and blue jeans, wants to be a ninja. Here's what the book says. No, mama, I don't feel like a boy. I am a boy.

Oh, mama gets quiet. I love you, mama, but I don't want to be you. I want to be papa. I don't want tomorrow to come because tomorrow I'll look like you. Please help me. Help me be a boy. Then mama says the best word I've ever heard. Yes. She says we will make a plan to tell everyone we love what we know. What's that? You are a boy.

And Alicia, if you're talking about reading storybooks to elementary school children in first, second grade, it's not that that is a book with a different set of characters who have non-traditional looks and gender roles. It seems like there's a pretty clear message there. And I think that's part of what these religious families are objecting to. Right. I think the very point of these books is to inculcate these kids and parents

Remember, these are second graders who are very impressionable. And the point is to inculcate them in what you might call woke ideology.

Go back 20 years ago, this would have been even very hard to imagine some of these books even being written, let alone taught in schools. And maybe there's an argument that at a later age or later grade, some of this would be completely appropriate. But a lot of parents object for religious reasons and actually other reasons. We had an op-ed.

Our paper saying, you know, even a non-religious parent might object to some of what is being taught about, you know, transgender studies to these five, six, seven year olds. And they don't want their kids being forced, basically told that this is how you must view the world.

And you don't also want to have to be telling your kid, well, you know, your teacher is wrong and you need to resist your teacher. That's also not really appropriate. So I think the ability for parents to opt out is just a natural accommodation. And in a pluralistic society, which, you know, we try to be tolerant, that seems to be the most common sense solution to this. Hang tight. We'll be right back in a moment.

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Welcome back. This op-ed that Alicia references is in the journal. The headline is Non-Religious Parents Have Rights Too. It's written by Melissa Moschella, a philosophy professor at Notre Dame. And here's a piece that struck me. She writes,

He said that you don't have to be religious to object to telling three-year-olds that doctors only guess a baby's sex at birth or giving them a pride puppy storybook instructing them to search for images of things they would find at a pride parade, such as a drag queen, leather, and an intersex flag. He thinks that parents have the right to opt their children out of such indoctrination is just common sense.

But Colin, it goes to the other question maybe that the justices were circling here, which is then how do you draw the lines? This is a case brought by religious parents under the free exercise of religion right in the First Amendment of the Constitution. But if there are other parents who also have objections to this, then where do the objections stop? And

Does this apply to science class or history class? That's one of the things that Montgomery County is raising in its brief. How would the schools go about accommodating everybody who has a view on some piece of the curriculum that they don't like? On the other hand, Colin, public schools already accommodate

a lot, students with disabilities that are protected by federal law, students who don't have English speakers at home and they're learning English as a second language. And your point about the R-rated movie maybe is a good answer to the question because it does seem to me, I mean, really, how hard would it be for Montgomery County to decide what day the book is going to be read in this classroom and to let the parents know that?

which the county is saying it is not going to do. Right. And Kyle, I think there really are guardrails here. You know, this discussion of whether or not if we're going to do this, then can families just decide to opt their kids out of the part of science class, you know, where evolution is discussed? I don't know. I think there's maybe a

little bit too much concern, at least at this juncture, about the slippery slope here. Because when you start talking about really core things, like opting a child out of science class, because you don't want them to hear about evolution, you're taking away from a child core instruction that's going to directly affect their future and their ability, you know, to do all sorts of things or have all sorts of choices in terms of college and other things. I think to

Katonji Brown-Jackson's point and what you were discussing earlier, I think there is a line that exists between information and advocacy. You know, schools have an important role in the lives of children to teach them about the world and the things that are and things that exist. Maybe even talk to them about things that their parents don't know much about or are uncomfortable talking about.

You know, that's the reason why schools have sex ed classes. And of course, that's controversial in some places, too. And there are opt outs there, too. But, you know, the point is, it would be weird at this point in human history if you tried to say we're going to be able to protect children from seeing a sign in the hallway that says love is love. But it's another thing entirely if you are taking really young students, elementary students,

and reading them books that are presenting a point of view in a way that parents are uncomfortable with. You know, I think that's a discussion that can happen between the parents and the teachers and really gets to these core dividing lines. And I agree with much of what Alicia said. The one part that I would say, though, is that I think parents really can do a lot of this at the dinner table. And it is okay to disagree with teachers. It happened

in issues like this and it happens in much smaller ways. When a child comes home and says, my teacher told us this at school and she said that I should behave a certain way to a child. And the parent can hear the story and go, you know what? That's interesting. I really respect your teacher, but we have a different view in our family. And I think those conversations can happen.

in there, those are important, especially for parents that believe so strongly in family values and in the role of the family. I don't think we should be minimizing that alternative to the school conversations. One final thought for me on this case, which goes to a second argument made by the parents. They also argue that if the Supreme Court wants a more narrow way to rule, it could rule that the opt-out was removed by the school basically as a targeted action in opt

opposition to these parents' religious beliefs. They have some comments from school board meetings, board members suggesting that this is just bigotry and so forth, that they don't want these storybooks read. So that is also a potential option. And we've seen the Supreme Court do that in some other cases, notably Masterpiece Cake Shop, suggesting that the authorities in that case were targeting Jack Phillips, the cake baker in Colorado. Hang tight. We'll be right back in a moment.

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From the opinion pages of The Wall Street Journal, this is Potomac Watch. Welcome back. Let's also talk about the second case at the Supreme Court this week. This is Kennedy v. Braidwood Management, and it involves this preventive services task force set up under Obamacare to decide what kind of coverage, preventive coverage, health coverage was required to be free to patients.

Let's listen to Justice Brett Kavanaugh reading the text of the law and wondering if Congress really meant to give this task force that kind of power. Your theory, I think, depends on us treating the task force as this massively important agency that operates with unreviewable authority to make really critical decisions that are going to affect the economy. Yeah, it is. And without any supervision...

or direction by the secretary. And normally, before that kind of thing would happen, Congress would have provided stronger indications that this task force is enormously important in the American economy and would have treated it such. And I just don't see indications of that. And it's a big picture question related to my earlier question. But I just don't see the indicators that

that, oh, this task force called the task force is more powerful than the secretary of HHS or the president in terms of how these recommendations are going to affect the health care industry. Alicia, what is the specific piece of the setup of this task force that is being challenged in this case? And what is really at stake for the dispute?

So this was a preventative task force that provides recommendations on cancer screenings, procedures, treatments that we receive. It was actually established in 1986, and it was an all-volunteer task force. Again, it's recommendations that they'd had no binding effect.

But in Obamacare, Democrats said, well, we want to make this task force independent. So they actually use those words independent and to the extent practical, free from or protected from political influence. But they were loppy with this provision of

and they didn't actually say how, and they also didn't give the Health and Human Services Secretary really any reviewable authority over the task force. So the idea would be that this would be kind of an outside independent body that would set binding law. And if you recall at the time, you know, Democrats were really enthralled with these independent agencies, and this was just kind of an extension of one, except it was outside of government.

Now, this poses a lot of constitutional problems. And even the Biden administration apparently realized that, well, you can't have this. And so they decided to appoint members to kind of ratify what they were doing to give them at least more of a government imprimatur. But then you have this challenge saying, well,

they're not really legally validly being appointed because under the Constitution's Appointments Clause, they quote, principal officers. That means that they actually have to be appointed by the president. The reason why they are considered principal officers is because what they do has a legal binding effect

Now, the government is arguing that these are actually merely inferior officers because, well, the Health and Human Services Secretary can maybe remove them. The law, by the way, doesn't make that clear. And maybe the Health and Human Services Secretary can review what they do by some kind of supervision. Colin, this point about an independent biopsy.

body making decisions. I mean, it sounds a lot like the cases that we've seen from the Supreme Court in recent years on the Consumer Financial Protection Bureau, for example, the attempt at insulating that bureau, that government agency from presidential control by saying that the director could not be fired by the president. And

I get the attraction, the argument that we need these independent agencies to protect from political meddling in these kinds of decisions about, you know, what health care services are going to be covered under such and such regime. The problem is Democratic accountability. That's what the Supreme Court has been focused on, is then you have a body that is making decisions that affect people's lives. And if voters want to do something to change it, if voters don't like what it's done,

Who do they go yell at? What town hall do they show up at to voice their opinion? Who do they elect or not elect? And those answers are not always clear. And that's, I think, why the Supreme Court has been doing this sort of cleanup job on these independent agencies, which, by the way, there's more to come on that cases percolating in the courts right now about whether the president can fire members of the National Labor Relations Board or the Federal Trade Commission.

Yeah, I agree, Kyle. I mean, I think the attempt to insulate these important decisions from political accountability of any kind is a dangerous one because when coverage decisions are made, there's no real way for people to push back, as you're saying, you know, and I think it's important to remember in this context, you know, this can also run in the other direction, you know, where the independent task force could deny coverage.

that people might really want. A lot of the news coverage of this case is focused on the fact that this is the story of two small Christian businesses that provide health insurance to their employees and don't like the preventative care task force approval of these preventative HIV drugs and would rather not cover them. But the task force obviously handles a far broader spectrum of treatments. You know, it makes decisions about

cancer screenings and other screenings for things like diabetes, for statins that patients can take to reduce the potential for strokes or heart attacks, for all sorts of other things that people do that the medical community now recognizes are really valuable preventative treatments like exercises that the elderly can use to minimize their risk of falling. All of those things are fine,

The issue here, though, to remember is that the appointments clause was created to ensure democratic accountability for those appointed officers and insisting that the members of the Preventative Care Board are those principal officers that Alicia was talking about, you know, who must be validly appointed. Doesn't mean that all the health care interests are just going to be disrupted or go away or, you know, evaporate into thin air. It just means that the task force itself is

needs to be within the appropriate lines of accountability. That's what our constitutional structure requires. Thank you, Colin and Alicia. Thank you all for listening. You can email us at pwpodcast at wsj.com. If you like the show, please hit that subscribe button. And we'll be back tomorrow with another edition of Potomac Watch. The spirit of innovation is deeply ingrained in America, and Google is helping Americans innovate in ways both big and small.

Central Texas Regional Mobility Authority is using Google AI to create smarter tolling systems and improve traffic flow for Texans. This is a new era of American innovation. Find out more at g.co slash American innovation.