If the Supreme Court is Angry Kids Have to Listen to Stories Containing Gay Characters, Then They Should be Furious That Kilmar Abrego Garcia is in Jail

Samuel Alito is the worst

Apr 27, 2025

Who is Kilmar Abrego Garcia, man U.S. must bring back from a Salvadoran Prison? — Kilmar Abrego Garcia, a legal resident of the United States whom the US government admits was wrongly deported and wrongly imprisoned in El Salvador. Abrego Garcia has neither been convicted of nor charged with a crime. The Trump administration, claiming the matter is out of their hands, has refused to correct their error and secure his release.

My corner of the world has been in the news a lot lately. Just this past week, the Supreme Court heard a case involving my local school district, Montgomery County Public Schools (MCPS). It did not go well for the home team.

The case in question—Mahmoud v. Taylor—is about whether parents, citing religious reasons, can pull their children from lessons involving children’s books with LGBTQ themes and characters. MCPS included a handful of such books in their elementary reading curriculum as options for teachers to read aloud to their classes and prohibited parents from opting their children out of such lessons. Parents who did not want their children exposed to the content of those books sued on First Amendment grounds, arguing MCPS infringed on their right to freely exercise their religion by compelling students to participate in the lessons.

It’s a tricky issue to resolve. By including such books in their curriculum, MCPS is clearly trying to instill among their students the values of tolerance and acceptance. Those are certainly important values to teach. I’d also argue those are important values to instill at a young age, since even elementary-aged children sometimes come to school with ideas about things like race, religion, ethnicity, gender, and sexuality that could be considered intolerant. It’s legitimate for school districts to try to counterprogram that, as various members of the school community—students, teachers, staff, parents—may belong to groups these students (however consciously) disparage. It may seem harmless when a second- or third-grader says “boys who like boys are bad” or that “boys who like dolls are messed up,” but that does affect the boy in that kid’s class who does like dolls, the classmate with two dads at home, and the way every kid in that classroom thinks about the gay teacher down the hallway.

But of course, some would view this particular effort to promote tolerance as intolerant, as it compels students to participate in a lesson about a topic their parents object to for religious reasons. Furthermore, schools (including MCPS) often allow parents to opt their children out of lessons they object to, most notably when it comes to sex ed. These sorts of accommodations are easy ways for schools to weave around issues like this. The Supreme Court’s conservative majority backed this argument in oral arguments last week.

But this case isn’t concerned with classroom topics like sex ed or evolution, another subject religiously-minded parents often object to (but aren’t typically allowed to opt their children out of.) Students are taught evolution to develop their personal understanding of biological science. Students are taught sex ed so they can better understand human biology and their own bodies, health, and well-being. There’s a strong personal dimension to those subjects: If a student isn’t taught evolution or sex ed, society suffers in a small way, but it’s the student who primarily suffers the loss (in this case, of some useful knowledge that may affect the course of their life.)

Yet a curricular focus on tolerance and acceptance aims to fulfill a more explicitly social objective. It’s about community building, both within the school and the wider world these students inhabit. It’s about getting along with others, even those whose views we disagree with or whom we consider weird. That to me is one of the primary goals of an American public school system. If parents want to opt their children out of lessons concerning that topic, they ought to have very compelling reasons to do so.

The court’s conservative majority will almost certainly rule against MCPS. That’s hardly a surprise. I’m also aware a massive volume of case law has built up around First Amendment cases like this and that the case law probably doesn’t favor MCPS.

But perhaps that case law ought to be tweaked. If the First Amendment is in some way about the value of tolerance; and if other amendments are also in some way about the value of tolerance, so that the Constitution can be read as a document that promotes tolerance; and if tolerance is a value that has become increasingly important in American life; and if the government finds it has an interest in promoting the value of tolerance in the same way it has an interest in promoting values like liberty and equality; then perhaps the Supreme Court needs to develop a more nuanced interpretive approach to cases like this—one that recognizes the importance of acclimating all students to the diversity they will likely encounter in American society—rather than simply allow parents to play the First Amendment as a “Get Out of Storytime Free” card.

Predictably, however, the Court’s conservatives rushed to the defense of the religiously-aggrieved while slamming MCPS for its lack of tolerance. Justice Brett Kavanaugh, who identified himself as “a life-long resident of [Montgomery County]” during oral arguments, said he was “mystified” by how a school district in a county that has been a “beacon of…religious liberty for all these years” ended up on the wrong end of a religious liberty case.

I might flip that question back onto the Justice, though: Could it be that this life-long resident of Montgomery County—someone who lives in the tony enclave of Chevy Chase and never attended an MCPS school—is out of touch with his own community and how its extraordinary diversity compels it to strike a balance between liberty and tolerance? The Montgomery County I know and live in is extremely diverse. The apartment units surrounding my own are inhabited by a.) An African family; b.) Two Latino sisters; c.) A Jewish family; d.) A married same-sex male couple (one of whom is white, the other of whom is of Asian descent) and their son; and e.) A Latino family whose husband and wife speak little English. The two dozen kids who get on the bus in the morning outside our building come from every corner of the globe and every walk of life. That’s a lot of diversity—and not only of the religious kind—in one pretty crowded place. We all need to find a way to get along with each other. There’s no opting out of that. It makes an expansive notion of tolerance more than just a personal virtue, but a social necessity. Maybe that’s what Justice Kavanaugh’s local school district is aiming for.

The most apoplectic justice, however, was Samuel Alito. The sight of two men marrying one another in a children’s book titled Uncle Bobby’s Wedding (a book that’s been in the crosshairs of the culture wars for twenty years now; can we please move past this?) was enough to put him on tilt:

JUSTICE ALITO: 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, that Uncle Bobby gets married to his boyfriend, Jamie, and everybody’s happy and everything is -- you know, it portrays this -- everyone accepts this except for the little girl, Chloe, who has reservations about it. But her mother corrects her: No, you shouldn't have any reservations about this. As I said, it has a clear moral message. There may be –
JUSTICE SOTOMAYOR: Wait a minute. The reservation is about –
JUSTICE ALITO: Can I finish, please?
CHIEF JUSTICE ROBERTS: Counsel. Yeah.
JUSTICE ALITO: It has a clear moral message. And it may be a good message. It’s just a message that a lot of religious people disagree with.

First of all, I would just note it’s a message a lot of religious and non-religious people disagree with. MCPS’s efforts to cultivate a sense of tolerance amongst its student body is not aimed specifically at religious people. It’s applicable to all who enter its classrooms. One would think that would please Alito, given his insistence as a Supreme Court justice that the state should not treat religious belief any differently than any other secular belief.

But more to the point here, notice how Justice Sonia Sotomayor interrupted Alito? That’s because Alito didn’t understand the source of little Chloe’s reservations about her uncle’s wedding. As numerous commentators have pointed out, Chloe wasn’t worried Uncle Bobby’s wedding was sacrilegious; she was worried once her uncle got married, he wouldn’t spend as much time with her anymore. That—not promoting same-sex marriage (or interracial marriage, for that matter, as white Uncle Bobby marries a black man named Jamie)—is what the book is about. The mere presence of gay people (who exist in the real world) getting married (a legal arrangement kids will likely encounter in real life) in a children’s book was enough to make Alito think MCPS was ramming a homosexual agenda down the throats of religious people. That strikes me as rather homophobic, a concerning trait for a Supreme Court justice to harbor. Equally concerning is how Alito misunderstood what he called the “clear moral message” of Uncle Bobby’s Wedding; if Alito can’t interpret the meaning of a children’s book without bringing his personal prejudices to it, how can we trust him to correctly interpret the meaning of the Constitution?

But never mind, Alito soldiered on in his defense of the freedom of religious people not to have their children exposed to gay characters in schoolbooks. Just imagine how this champion of liberty would react if, say, the federal government grabbed a man off the streets of Maryland and then, three days later, deported him to El Salvador where he was imprisoned in a maximum security detention facility without ever, anywhere, over the course of those three days, being charged with a crime nor put on trial, and, oh yeah, the federal government later admitted it had all been a mistake but refused to correct their error. He’d be furious…right?

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Hopefully by now you’ve heard about Kilmar Abrego Garcia, a resident of Prince George’s County, Maryland, which lies east of Washington DC and southeast of Montgomery County. While Abrego Garcia immigrated to the United States illegally in 2011 at the age of sixteen to escape the mortal threat of gang violence, an immigration judge in 2019 granted him a status that allowed him to reside and work legally in the United States. He is married to an American citizen and is the father of three American children. On March 12, 2025, he was arrested by ICE, and, three days later, transferred to a jail in El Salvador (which has entered into a contract with the United States to detain deported individuals) where he remains imprisoned in a facility designed to hold the members of the gangs he fled in 2011. Not only was Abrego Garcia never charged with a crime nor put on trial, but the Trump administration has admitted his deportation was an error and that he is wrongly imprisoned. Yet Attorney General Pam Bondi has said the United States cannot bring Abrego Garcia back to the US because he is in Salvadoran custody, while Salvadoran President Nayib Bukele (who has called himself “the world’s coolest dictator”) refuses to release him.

The Deadly Seriousness Behind Trump and Bukele's “Joke” | The Nation — Trump meeting with Salvadoran President Nayib Bukele in the Oval Office. Can you identify which one is the self-proclaimed “world’s coolest dictator”?

Abrego Garcia’s detention should shock the conscience of every American. A judge had granted him the legal right to reside in the United States, yet the government forcibly removed him from the country regardless. At every step of the way, he was denied due process of law. He is currently sitting in a jail but has not been convicted of a crime. The government acknowledges Abrego Garcia is an innocent man but is treating him as though he is guilty and gleefully refuses to correct their error.

No one should assume this is a simple mistake. We should instead assume Trump is using Abrego Garcia as an example of what could happen to anyone who ends up on the wrong side of this administration. It is hardly a stretch to imagine a scofflaw like Trump snatching up his critics, perceived political enemies, and those he considers disloyal in the dead of night and disappearing them into a Central American gulag. He has openly mused (click those links) about deporting American citizens to these overseas facilities. He’ll often say he wants to deport criminals, but Trump has a very slippery definition of what does and doesn’t count as “criminal.” By deporting and refusing to help Abrego Garcia—someone Trump assumes many Americans will not view as a sympathetic figure and therefore not care about—Trump is attempting to anesthetize the American people to the establishment of a fascist police state. (The prison Abrego Garcia is living in along with others who have been deported from the United States is the definition of a concentration camp.) First Trump comes for Abrego Garcia; then he comes for us. Abrego Garcia’s cause is our own; his freedom is our freedom.

Terrifyingly, Trump’s executive branch insists all this unconstitutional behavior is legitimate because the courts did not intervene fast enough to stop them. That’s straight-up bullshit: Nothing in the Constitution allows the government to trample upon and permanently void an individual’s rights—to essentially break the law—so long as the government doesn’t get caught in the act.

One hundred days into Trump’s presidency, it should be clear to everyone how this administration operates when they want to do something legally dubious: Move so quickly that whatever they break can’t be put back together if Congress or a court tells them to stop. They’ve deployed that strategy when dealing with matters involving foreign aid, state and local grants, tariffs, and scientific research. Some of it is done out of sheer recklessness, but much of it is strategic. When it comes to USAID, for instance, what the Trump administration wrecked within a matter of weeks will take years to rebuild.

That’s the strategy Trump is using with deportations as well. Rather than grant someone they accuse of residing illegally in the United States their day in court, Trump’s officials instead quickly disappear them into a foreign jail and then claim the matter is out of their hands. That’s a ludicrous claim to begin with, since we’re in a contractual agreement with El Salvador to house these people and we’ve seen high-ranking Trump officials visiting Salvadoran prisons to take victory laps. Those officials could surely bring a wrongly imprisoned person back with them to the United States. But even if they can’t—if Bukele refuses to find or return someone who does not belong in his custody because they are innocent or have been denied due process—then the whole scheme is plainly unconstitutional and should be shut down immediately.

The Supreme Court is hopefully, finally onto Trump’s game. They weren’t earlier this month when they initially dealt with Abrego Garcia’s case. A lower court had ordered the administration to “facilitate and effectuate” Abrego Garcia’s return, but the Supreme Court, in a unanimous decision, ruled the government needed to “facilitate” his return while ordering the lower court to clarify what it meant by “effectuate” in light of the deference owed to the executive branch’s administration of foreign affairs. The Court’s three liberal justices, while agreeing with the overall direction of the ruling, objected to the delay. In fact, nothing prevented the Court itself from clarifying or defining what it means to “effectuate” a return. For example, I would say it means, “Moving heaven and earth to get an innocent man this country wrongly sent to a foreign prison back onto US soil yesterday under penalty of law.” Yet the Court chose to dither.

But perhaps the Court’s patience has now worn thin. Last month, Trump invoked the 227-year-old Alien Enemies Act to justify the deportation of Venezuelans residing in the United States that his administration claimed were members of a Venezuelan gang. A district court judge in DC shut this scheme down a few weeks ago (although that didn’t stop Trump’s goons from deporting about 250 Venezuelans) but the Supreme Court tossed the ruling on technical grounds. While the Court agreed these individuals deserve due process, it also asserted lawsuits like this need to be filed in the jurisdictions where the aggrieved are being held. District courts throughout the United States then issued rulings prohibiting the government from using the Alien Enemies Act to deport any more people.

Last weekend, however, the ACLU sought an emergency temporary restraining order after it learned the government was preparing to deport hundreds of Venezuelans. In a remarkable one-page order issued at 1:00 AM on a Saturday morning, the Court halted the deportations, essentially ordering Trump to obey the judicial branch. Court observers interpreted this as a sign the Court is fed up with Trump’s shenanigans.

Yet two justices—Clarence Thomas and Samuel Alito—dissented. Unusually, Alito’s written dissent was not issued with the Court’s ruling, a sign the majority understood the urgency of the matter and couldn’t wait for Alito to put pen to paper. The dissent Alito published the following day was the jurisprudential equivalent of a bucket full of holes. Alito argued the Court had acted too quickly, violated its own procedures, and used dubious reasons to issue what he considered an unprecedented order. After tacking on a perfunctory statement about how the executive branch is expected to follow the terms of court orders, he concluded by reasserting the need for the Court to follow its own procedures.

That sounds reasonable unless you know that immediately after the Court issued that ruling at 1:00 in the morning, a caravan transporting a group of Venezuelans from a prison in Texas to an airport turned around and returned its passengers to the prison. That’s how close they came to being deported without due process. What’s even crazier is that Alito went ahead and issued his dissent even after it was widely known those busses had been turned around. The Court had caught Trump trying to skirt the law. Within hours, reporting proved Trump had tried to skirt the law. Yet here’s Alito ignoring those revelations. It’s as though Alito, dare I say, wanted Trump to get away with skirting the law.

Alito’s reasoning (if you want to call it that) is preposterous on so many levels. It willfully ignores both the facts on the ground and the very clear strategy of breaking things/asking questions later that Trump has used to get around the law. It pretends the Court did something egregious by simply ordering Trump to stop so the judicial system would have time to work its procedural magic. It fails to realize that court orders and procedures are meaningless if they are not defended against an executive aggressively pursuing ways to bypass them.

It should be obvious by now that Samuel Alito is a bad faith actor. As a Supreme Court justice, he has an interest in preserving the authority of the Court so he can continue to stick it to school districts that let teachers read books featuring gay characters to their students. But his devotion to the law is superseded by his devotion to the aims of the MAGA movement, meaning he is always on the hunt for ways to work the rules for Trump’s sake. If Trump ever encountered a legal roadblock, Alito is the guy who, “concerned” the roadblock was the wrong width and height, would remove it just long enough to allow Trump to speed past it. This country deserves—and right now needs—a better brand of justice.

Further reading: “The Supreme Court’s ‘Selective Proceduralism’ Would Suffocate the Constitution” by Adam Serwer (The Atlantic) and “Trump Is Vulnerable on Immigration” by Jonathan Chait (The Atlantic)