Too late to opt-out: Supreme Court ultimately can't save the religious right's futile book bans

Can you treat someone with "love, kindness, and respect" while simultaneously insisting their identity is so poisonous that it cannot be acknowledged?

The Supreme Court heard oral arguments on Tuesday for Mahmoud v. Taylor, which has become known as the "don't say gay" case, because it's over conservative objections to children's books, taught in Maryland classrooms, that position queerness as a normal fact of life. The arguments involved a lot of legalese about "burden" versus "coercion," or what constitutes a "sincerely held" religious belief. But at the heart of the battle was a more philosophical question, one with an answer that should be self-evident: Is it possible to "respect" someone while trying to erase their existence?

The case regards a Montgomery County school board's decision to include books featuring same-sex marriage, trans characters and a Pride parade as part of their curriculum. The Becket Fund, a religious right organization, is suing on behalf of parents who want to opt their kids out of lessons involving these books, claiming that mere exposure to the books violates their religious beliefs. The school district's lawyer told the court these books are no different than books portraying women working or soldiers fighting in wars, both behaviors proscribed by some religions. "These lessons are students should treat their peers with respect," he said. Exposing kids to different beliefs is not a mandate that they follow them, he argued, just an education in what the world looks like.

If the Supreme Court rules for the religious right, "I don't think that explicit bans are likely, in the sense that school districts would forbid students from having certain books," explained Ian Millhiser, the legal analyst at Vox. Still, he said that such a ruling could "deter public schools from assigning any books with LGBTQ themes or from using books with queer characters in the classroom." It would functionally create a national version of Florida's "don't say gay" law that has suppressed free expression in the classroom.

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The right's lawyer argued that censoring these books wasn't about disrespecting queer people, but protecting "children's innocence." It's a nonsense argument, however, as it assumes there's a "respectful" way to erase people. But it was also quite silly, as if hiding these books would shield children from the knowledge that LGBTQ identities exist. (An unspoken corrollary is the false view they can prevent children from growing up queer.) The case illustrates the animating futility at the heart of the MAGA movement: they will never manifest their dream of a past "great" America, when "queer" wasn't a thing. Such a period never existed, but especially not in an era when queer people are visible in pop culture, the internet, and the general community. The government can force teachers not to say "gay" in school, but kids are going to hear about it everywhere else.

During arguments, Justice Ketanji Brown Jackson made this point most clearly, asking the plaintiffs' lawyers how far this parental right to "opt out" should go. She asked if a gay teacher would be allowed to have a wedding photo on her desk? Or if a student group put up "love is love" posters in the hallway? Or if a trans teacher insisted that the students use their preferred name and pronouns? On this last point, the conservative lawyer insisted the teacher has no right to tell students how to address them.

This answer gave the game away. It's standard practice for teachers to dictate how students address them: First name or last name? Miss or Mrs? Only trans people, in this lawyer's determination, don't deserve this basic respect from students. It's just about insulting them, not "protecting" kids from the knowledge of trans identities. But Jackson's larger point is crucial. Blocking a few books from classrooms won't hide the existence of queerness from kids. And efforts to go down that futile path only lead to ever more draconian censorship, such as telling queer teachers to hide their spouses, while allowing straight teachers freedom to talk about theirs. At which point, the fiction that "respect" and "equality" are being maintained is a joke.

The Becket Fund's efforts to get around this problem rely on pure bad faith, by misrepresenting or even lying about what's in the books to make it seem like they're sexually explicit. Their communications strategy has foreground "Pride Puppy," a short storybook chronicling a family's day at a Pride parade. The Becket lawyers claim the book "invites three- and four-year-olds to look for images of things they might find at a pride parade, including an 'intersex [flag],' a '[drag] king' and '[drag] queen,' 'leather,' 'underwear,' and an image of a celebrated LGBTQ activist and sex worker, 'Marsha P. Johnson.'"

All words meant to make homophobic adults imagine scandalous material, but the book itself is entirely innocent, which readers can verify by watching this 3-minute video of a woman reading it, complete with the illustrations. As a blog post by the illustrator points out, "The leather mentioned is a leather jacket, a fairly common article of clothing that even children sometimes wear!" The drag performers are just dressed-up adults. The "underwear" is worn outside the clothes, like a superhero costume. The drawing of Johnson doesn't mention her history. Similarly, the Becket lawyer insisted that another book tells kids their gender "changes based on the weather," but provides no evidence in the voluminous court filings. When asked by Justice Sonia Sotomayor what's wrong with pictures of same-sex couples holding hands, the Becket lawyer pivoted to saying some parents object to adult films, as if they are the same thing.

The irony here is that, due to the internet, kids inevitably find adult materials on their own. Having an education in sexuality, sexual identity, and human diversity before they see that stuff — so they can distinguish fact from fantasy — is the only true way to protect children. Books like "Pride Puppy" prevent the premature sexualization of kids, by answering questions about queer identity in age-appropriate ways. If adults don't answer children's curiosity, kids go looking on their own. Left to their own devices and a search engine, children find materials they're not mature enough to handle.

One thing censorship of queer books does accomplish is signaling to LGBTQ kids that there's something shameful about who they are. "LGBTQ+ youth who attend schools with an inclusive sex education curriculum report lower levels of depression and suicidality," explained the American Psychological Association in their amicus brief in support of the school district. Listening to the mean-spirited arguments from the right before the Supreme Court today, it's hard to shake the sense that this shame is the desired outcome. Kids are going to learn what "gay" is one way or another, and at very young ages — and many of them will be queer. The only question is whether the authorities in their life tell them they're bad people for it. Whatever the Supreme Court decides, the GOP's goals with the case are crystal clear. They can't win the culture war, but they're going to use these lawsuits to spit in the face of all the queer people who offend them just by existing.