Alito Invokes LGBTQ+ Books in Catholic Charter School Argument

Justice Samuel Alito still seems bothered by the inclusion of LGBTQ+ themed books in a Maryland elementary school.

Though it’s been over a week since the US Supreme Court heard from parents fighting to opt their children out of that instruction, Alito referenced the case during Wednesday’s arguments in a separate religious liberty fight over a Catholic school that wants to join Oklahoma’s taxpayer-funded charter school program.

Oklahoma’s attorney Gregory Garre argued St. Isidore of Seville Catholic Virtual School isn’t allowed to be part of the program because charters are government entities and, under the the state and US constitutions, Oklahoma is prohibited from using public money to establish a religious institution.

Pushing back, Alito said he thought charter schools were designed to be an alternative to public schools and offer different curriculum.

When Garre said charter schools have to meet the same academic standards as public schools, Alito asked if they can instill a particular secular viewpoint. He then gave a hypothetical involving a “LGBTQ+ friendly” charter school.

Could that school read books to elementary school children that have lots of LGBTQ+ characters, same-sex couples, and “send the message that this is a perfectly legitimate lifestyle?” he asked.

Alito continued by asking if the charter school could “tell the little kids, your parents may say you’re a boy or a girl, but that doesn’t mean you really are a boy or a girl.”

“No,” Garre said. “And the reason why they couldn’t is because state law prohibits the teaching of gender studies or race in public schools, traditional public schools and charter schools.”

Alito’s questions seemed to stem from the challenge the court heard on April 22 over LGBTQ+ books in a Maryland public school. Some parents claim the books interfere with their faith, but the school argued merely exposing their children to them isn’t burdening their religious rights.

During those arguments in Mahmoud v. Taylor, Alito focused on the meaning behind the books and one book in particular titled “Uncle Bobby’s Wedding.”

“I don’t think anybody can read that and say, ‘well, this is just telling children that there are occasions when men marry other men,’” he said.

The case over the books, along with Wednesday’s dispute over the religious charter school and a case earlier this term challenging state limits on tax exemption for religious employers, could greatly expand the role of religion in public life.

Garre, who represented Oklahoma Attorney General Gentner Drummond, is a partner at Latham & Watkins LLP.