The Status of Smith and Yoder After Mahmoud
A few days ago, I asked if the moment for overruling Smith had passed. At the time, I had not yet read Mahmoud. (I am still making my way through the opinions.) Now, having read Mahmoud, I see a Court that is desperately trying to stay away from the resolving the validity of Smith.
Let me lay out some salient facts from Mahmoud. The government initially allowed parents to opt-out their children from being exposed to certain books. However, that opt-out was later removed. And, as Justice Alito observed, “[t]he Board member went on to suggest that the religious parents were comparable to ‘white supremacists’ who want to prevent their children from learning about civil rights and ‘xenophobes’ who object to ‘stories about immigrant families.'” Yet, the school permits other types of opt-outs for non-religious reasons.
Based on the Court’s precedents, I could see two possible ways to avoid Smith. First, the Court could follow Masterpiece Cakeshop, and find that the statements from the board member were impermissible animus against religious parents. This policy would not be neutral towards religion. That finding would trigger heightened scrutiny under the rubric from Church of the Lukumi. Then again, Justice Sotomayor suggests in Footnote 15 that the Board Member was not actually expressing hostility towards religion, so that argument may not have worked.
Second, the government allowed an exemption for religious parents, but then removed that exemption, even as other exemptions are present. These facts resembles Roman Catholic Diocese, Tandon, and Fulton, under the “most favored nation” approach. In other words, religion is being treated worse than non-religion. This policy would then not be generally applicable, so would be reviewed with heightened scrutiny. The Court even cited Fulton:
This robust “system of exceptions” undermines the Board’s contention that the provision of opt outs to religious parents would be infeasible or unworkable. Fulton, 593 U. S., at 542.
But Alito discussed the exemptions at the back-end scrutiny analysis, and not at the front-end to determine whether strict scrutiny applies.
Yet, the Mahmoud Court did not take Door #1 or Door #2. Justice Alito expressly said he wouldn’t even consider these arguments:
We acknowledge the many arguments pressed by the parents that theBoard’s policies are not neutral and generally applicable. See Brief for Petitioners 35–44. But we need not consider those arguments further given that strict scrutiny is appropriate under Yoder.
Instead, Justice Alito took Door #3: Yoder. Alito explains that Mahmoud has the same “special character” as Yoder, so the Court follows that precedent.
Here, the character of the burden requires us to proceed differently. When the burden imposed is of the same character as that imposed in Yoder, we need not ask whether the law
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