On Tuesday, the Supreme Court heard oral argument in Mahmoud v. Taylor, a case arising from religious conservatives’ hostility to a Maryland school district’s inclusion of a handful of books with LGBTQ characters in the schools’ language arts curriculum. Montgomery County Public Schools serves over 160,000 students, and updated its reading material in 2022 to better reflect the diversity of its community, and promote respect for that diversity among its students. This is a problem for right-wing activists who do not think queer people deserve respect.

In May 2023, the Becket Fund for Religious Liberty filed a federal lawsuit on behalf of local parents who argued that the books promote concepts like “transgenderism” and “same-sex marriage,” thus violating the parents’ constitutional rights. Becket lawyers asked the court for a preliminary injunction that would block the board from allowing children to read, listen to, or discuss the books, and require it to provide parents with the opportunity to opt out of “any other instruction related to family life or human sexuality” going forward.

Both the district court and the Fourth Circuit Court of Appeals denied this relief. Why? Because Becket provided no actual evidence about how the books were being used in the classroom, and what instruction, if any, students were receiving, creating a record the Fourth Circuit described as “scant,” “sparse,” “very limited,” “threadbare,” and riddled with “gaps.”

“None of these declarations provides any information about how any teacher or school employee has actually used any of the storybooks in the parents’ children’s classrooms, how often the storybooks are actually being used, what any child has been taught in conjunction with their use, or what conversations have ensued about their themes,” the Fourth Circuit wrote. “We do not know whether these conversations stick to language arts purposes, if conversations about the storybooks’ characters and themes simply expose students to viewpoints the parents find objectionable, or if discussions have divested into subtle or not-so-subtle indoctrination that pressures students to act or believe contrary to their religious upbringing.” In other words, the Fourth Circuit did not foreclose the possibility that some facts and circumstances could lead to a constitutional violation, but reasoned that extending preliminary relief requires more than mere statements of religious objection.

Or at least, it used to.