Elena Kagan Presses Attorney About Where To ‘Draw Lines’ In LGBTQ+ Book Bans Case

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During oral arguments for 'Mahmoud v. Taylor', Supreme Court Justice Elena Kagan questioned an attorney about different levels of material shown in children's books.

Transcript

00:01Mrs. Kagan?

00:02I want to take you back to some of the questions that Justice Alito was asking, because I too

00:07was struck by, these are young kids, picture books, and on matters concerning sexuality.

00:16I suspect there are a lot of non-religious parents who weren't all that thrilled about

00:20this.

00:21You know, add in religion, and that's, you know, even more serious.

00:31But I guess I'm searching for what in your legal arguments would allow us to draw lines

00:40in this area.

00:41And I'm kind of not finding it from what you were saying to me in our earlier, or what

00:49you said to Justice Alito.

00:51Because when Justice Alito said, how about that 17-year-old?

00:55You said, well, many parents' objections would decrease.

00:58But that still indicates that if a parent said, no, even with respect to that 17-year-old,

01:05I still care about this.

01:06I want an opt-out.

01:08You're not giving anything that would allow lines to be drawn.

01:14And I'm just curious if you think lines can be drawn, and where they would be drawn.

01:19And on the basis of what First Amendment doctrine, they would be drawn.

01:22We think there are lines that can be drawn.

01:24They're the same lines that this court has drawn in every other free exercise case.

01:28And the burden, a plaintiff has to show that its beliefs are religious, that they are sincere.

01:34There has to be a substantial infringement, or burden, or pressure.

01:39And then on the strict scrutiny side, there are also...

01:40But I'm hearing you saying that the burden that you are saying, and of course we're just

01:46assuming that all these people have sincere religious beliefs.

01:50Let's just assume that.

01:53But what I'm hearing you saying is the burden is basically up to the parent to decide, this

01:59conflicts with my religious beliefs.

02:01I want an opt-out.

02:02Is that correct?

02:03Yes.

02:04And on the Sherbert side, under strict scrutiny, they would have to first show that there

02:07is a law that's not neutral or generally applicable.

02:10So there's a limit there.

02:11And on the Yoder side, if this court didn't want to go all the way to address the issues that

02:15aren't present in this case, it could rely on the uniquely coercive environment of the

02:20schools.

02:21And now putting those kinds of issues on the burden side...

02:23Okay, so those still, it's like just pretty...

02:26I mean, I'm really searching for something, and I know that you realize that, and you're

02:32still not giving me anything other than if it's in a school and a sincere religious parent

02:39has an objection, that objection is always going to result in an opt-out.

02:45That's of course...

02:46No matter how, no matter what the instruction is like, no matter what the materials are,

02:51no matter how old the kids are.

02:54And that's the rule that schools everywhere in the country are working under right now,

02:58by their own choice.

03:00That was Montgomery County's own rule before this lawsuit came in.

03:03And there were never these kinds of problems until it really introduced a curriculum that was

03:08clearly indoctrinating students, and things that the principal said was introducing things

03:12as fact that aren't fact.

03:13Yeah, but once we articulate a rule like that, you're going to have a lot of appearance,

03:19it seems to me.

03:20I don't think you can say just because it hasn't happened.

03:22Once we say something like what you are asking us to say, it will be like, you know, opt-outs

03:27for everyone.

03:28Well, certainly the government always wants to put these things on the burn side instead

03:32of the strict scrutiny side.

03:33We heard these arguments in Hobby Lobby, where there was a lot of concerns about what would

03:36happen in Ocentra, what would happen with drugs.

03:38And in reality, we didn't see those kinds of floods happen.

03:42And when they have, the courts have managed to deal with them without any significant difficulty.

03:48Justice Gorsuch.

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