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Free Exercise Clause Rights to Opt Children Out of Public School Lesson That “Substantially Interfer[e]” with Their Children’s “Religious Development”
[1.] The Supreme Court has been debating the meaning of the Free Exercise Clause for over 60 years. One view has been that the Clause generally gives religious objectors a presumptive right to be exempted from generally applicable laws, such as from bans on using peyote, requirements that one provide one’s child’s social security number to get various welfare benefits, requirements to provide certain health insurance to one’s employees, and anything else that might conflict with one’s religious beliefs.
This right was just a presumption, which the government could rebut if it has a strong enough reason. And indeed the presumption was often found to have been rebutted, in cases involving draft laws, tax laws, antidiscrimination laws, child labor laws, and more. But the presumption, though not very strong, was broad: It applied to a wide range of religious practices. Historically, that view had been associated mostly with the liberals on the Court, such as Justices Brennan and Marshall. The leading precedent here was Sherbert v. Verner (1963), written by Justice Brennan.
The opposite view has been that the Clause only forbids discrimination targeting religious believers or practices (such as laws that ban religious animal sacrifice but allow virtually identical secular killing of animals, or laws that exclude religious schools from various benefit programs that are offered to secular private schools). Historically, that view had been associated mostly with the conservatives on the Court, such as Justice Scalia and Chief Justice Rehnquist. The leading precedent here was Employment Division v. Smith (1990), written by Justice Scalia.
Curiously, the ideological polarity on this matter has flipped in recent years, with the Court’s conservatives generally endorsing the traditional Brennan/Marshall view, and the liberals generally endorsing the Scalia/Rehnquist view. It looked, from cases such as Fulton v. City of Philadelphia (2021), like there were at least five votes on today’s Court to bring back the broad-exemption-rights view.
But in today’s Mahmoud v. Taylor, the conservative majority took a different approach: Rather than discussing government actions that interfere with religiously motivated behavior generally, it focused on a particular kind of government action—educational rules that substantially interfere with parents’ ability to “direct the religious upbringing of their” children. And while this is just a narrowly defined Free Exercise Clause right (focused just on interference with religious upbringing), the protection appears to be quite strong.
In this respect, the right recognized here is structurally similar to another narrowly defined Free Exercise Clause right, seen in cases such as Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (2012) and Our Lady of Guadalupe School v. Morrissey-Berru (2020)—there, a right of religious institutions to choose their religious leaders and religious teachers, free of antidiscrimination rules. That too was a narrow right, focused on one particularly important facet of religious life; but it was a strongly protected right, within this narrow scope.
[2.] Mahmoud involved the Montgomery County (Maryland) Board of Education’s decision to “introduce[] a variety of ‘LGBTQ+-inclusive’ storybooks into the elementary school curriculum,” with no possibility of parental opt-out. According to the evidence cited by the majority, “These books—and associated educational instructions provided to teachers—are designed to ‘disrupt’ children’s thinking about sexuality and gender,” and to inculcate particular beliefs about sexual orientation and gender identity:
As one email sent by MCPS principals reflects, the Board selected the books according to a “Critical Selection Repertoire” that required selectors to review potential texts and ask questions such as: “Is heteronormativity reinforced or disrupted?”; “Is cisnormativity reinforced or disrupted?”; and “Are power hierarchies that uphold the dominant culture reinforced or disrupted?” …
A few short descriptions will serve to illustrate the general tenor of the storybooks. Intersection Allies tells the stories of several children from different backgrounds, including Kate, who is apparently a transgender child. One page sh
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