The Supreme Court decided on June 27 that parents can opt their elementary school children out of instruction that includes LGBTQ+ stories. The court’s 6-3 opinion in Mahmoud v. Taylor states that denying parents the ability to opt-out “substantially interferes with the religious development of their children.”
Don Herzog, the Edson R. Sunderland Professor of Law, disagrees with the court’s decision, citing the court’s precedent in Employment Division v. Smith. Read further for his insights into the court’s decision.
1. Please explain the legal issues in this case.
Montgomery County, Maryland, placed in public elementary school classrooms a series of books featuring LGBTQ+ characters. The board required that the books be used and offered a script suggesting how teachers might deal with complaints and questions from students. Parents with religious objections to the books asserted that the free exercise clause required the schools to give them an opt-out, so their children would not be exposed to views their religion condemned.
At oral argument and again in the opinions, members of the court are split on what these books are actually saying. Justice Alito, writing for the majority, thinks they are subtly promoting a normative agenda: that same-sex marriage is a good thing, for instance. Justice Sotomayor, for the dissent, thinks they are promoting kindness and civility.
So notice how the free exercise clause meets the separation of powers. No one doubts that the board would be permitted to say, “If you have objections to your child being around when these books are being used, we will excuse your child.” That sort of discretion—relieving people with religious worries from a rule—is a familiar fixture of American law and politics.
The question is whether it’s constitutionally required. Or, put differently, the question whether a court should order a carveout, an exception from the rule, when the board has decided not to give one.
2. What did the court decide?
Technically, it decided that the parents are entitled to a preliminary injunction on this record: so, cranking the usual handle, that they’re likely to prevail on the merits, that the injury they’d suffer while waiting for a decision on the merits would be irreparable, that the equities tilt toward the parents, and that an injunction would be in the public interest.
But it is kinda hard, where “kinda hard” means “um, impossible,” to read the opinion and not think that if this dispute bubbles back up on the merits, the court will surely rule for the parents.
The majority reached back to Wisconsin v. Yoder, where the court held that the free exercise clause meant the Amish had a right to withdraw their children from public schools at the end of eighth grade, even though state law required attendance until age 16. Yoder is an odd case; it takes what’s essentially an endangered-species approach and worries that Amish kids will be spirited away by secular culture and then the Amish community will disappear. (In the real world, plenty of Amish children do leave the community, but the Amish also have a very high birth rate.) The lower courts hearing this case found it easy to distinguish Yoder. The court has breathed new life into it, making it stand for a sweeping principle guarding against substantial interference with parents’ religious upbringing of their children.
3. Do you think the case was correctly decided?
Nope, not at all.
The major precedent here is Employment Division v. Smith. (The majority opinion there was written by Justice Scalia, but the conservatives on today’s court hate it. Some justices are clearly ready to formally overturn it; Justice Barrett has said she is not ready to, because she doesn’t know what she’d put in its place.)
Smith says that burdens on religion, standing alone, aren’t constitutionally cognizable; the free exercise clause stops the government from treating some religions, or all religions, worse because they’re religious. This approach is business as usual in constitutional law.
Rosenberger v. Rector holds that the University of Virginia must fund Wide Awake’s frankly evangelical magazine, because they’re getting the funds as a student magazine, not as a religious magazine.
Arcara v. Cloud Books holds that the government’s padlocking a book store raised no free speech difficulty, because the law at issue wasn’t adopted or enforced because of anything about books.
Washington v. Davis holds that when the District of Columbia uses a test for becoming a police officer that has a racially disparate impact—Black applicants do less well—that is not an equal protection problem, though it sure would be if DC used the test to try to keep its police force white.
I think Smith is clearly right. I think if it could be shown that the county adopted these books in order to bash religion, or in order to interfere with religious upbringing, that would be a free exercise violation. But there’s nothing in the very scanty record (one wonders why the court granted cert. at this stage!) to suggest that that’s what happened here.
Today’s court is increasingly insistent on an asymmetry. When it comes to free exercise, they think it’s obvious that the government may, and indeed sometimes must, not apply the regular rule to the religious claimant. When it comes to establishment, they think it’s obvious that the government must apply the regular rule to the religious claimant.
I’d love to know what the justification for that asymmetry is or why burdens and benefits are so different. The court has said that the Constitution “singles out” free exercise for protection. Sure. But it also singles out establishment, but you still get Rosenberger. It singles out free speech, but you still get Arcara. It singles out equal protection, but you still get Washington v. Davis.
4. Were you surprised by anything in the court’s decision?
Not just surprised, but gobsmacked. The majority says—I’m not literally quoting—“Sure, the government cannot compel you to send your child to a public school. But let’s get real; homeschooling and private schooling are expensive.” This newfound solicitude for financial constraints is a stunner.
When there was still a constitutional right to abortion, the court didn’t think that the Hyde Amendment, banning the use of federal funds for abortion, was a constitutional problem. The right to freedom of the press does not mean the government has to buy you a printer. Quite generally, constitutional law has worried about obstacles the government throws in your path to try to stop you from doing something. It simply hasn’t worried that maybe you haven’t got the money to do what you want to. Yes, the government requires you to educate your kids. But so, too, it can require you to get health care, and that doesn’t really change anything.
Similarly, the majority suggests that the government is trying to condition a benefit—public education—on your surrendering the right to bring up your child in accordance with your faith. But that stretches the doctrine of unconstitutional conditions way past its usual (sadly murky) contours.
5. What are the immediate and longer-term implications of the court’s decision?
How big a bite has the court now taken out of Smith? Time will tell. Sometimes Justice Alito, writing for the majority, says the problem is that the burden on religious exercise here is “substantial” and “systematic” and that it affects impressionable young people. Sometimes he says the inquiry will be “fact-intensive.” (Get ready for judicial opinions that look like second-guessing difficult policy judgments, where an unstructured series of observations magically yield a result.) But sometimes he says it’s enough that “a burden on religious exercise will occur.” If “a burden” is enough, the free exercise clause has been violated, oh, thousands of times while you’re reading this, and Smith is toast, even if they’re not yet saying so.
Coming soon, to a courtroom near you: a parent whose religion teaches that it’s literally true that God created all living things on the sixth day of creation files suit and says, “Mahmoud means that the constitution entitles my child to be excused from evolutionary biology.” The majority opinion is scattered with tasty crumbs for that parent—and seductive lures for sympathetic judges. As I say, time will tell.
Maybe this case is just the court’s latest swipe in the overheated culture wars about gender (and sex, sexuality, and so on). But that’s not a legal or constitutional category; it’s absurd to think that free exercise should apply differently when gender is on the table. So even if cynics are right in surmising that Mahmoud is really about gender, it can’t and won’t be cabined that way.
In the meantime, suppose you’re a prudently litigation-averse lawyer advising a public school board. I’m afraid the prudent thing for you to advise is, get all the LBGTQ+ stuff out of the schools, pronto. No one actually thinks that the free exercise clause conjures up a social world in which everyone is straight, and boys are simply boys and girls are simply girls, and…. But on the ground, we’ll see at least some of that.
