Contrasting Coercion for the Free Exercise Clause in Mahmoud and Coercion for the Establishment Clause in Kennedy
Mahmoud v. Taylor followed naturally from Skrmetti. Indeed, you could imagine a Court that decided Skrmetti the other would also flip Mahmoud. But given the fact that Skrmetti allowed the state to shield minors from gender transitioning, it makes sense that Mahmoud allowed parents to shield minors from information about gender transitioning.
Still, even though the outcome of Mahmoud was not hard to predict, the Court took a somewhat circuitous route to get there. First, the Court relied almost exclusively on Yoder, and used that precedent to get around Smith. Second, the Court, and Justice Thomas in particular, said almost nothing about substantive due process, even though the right to raise children was grounded in Lochner-era decisions like Meyer and Pierce. I’ll address these two topics in other posts.
Here, I will discuss a third topic that requires some unpacking. How can Mahmoud be reconciled with Kennedy v. Bremerton School District? In particular, how can you line up the Court’s treatment of coercion in these two recent decisions?
Recall that in Kennedy, the school district argued that the coach’s prayers could coerce students, and thus violate the Establishment Clause. But according to the school district, there was “no evidence that students [were] directly coerced to pray with Kennedy.” I have read Kennedy to stand for the proposition that only direct evidence of coercion would violate the Establishment Clause. As Justice Gorsuch explained, “[o]ffense . . . does not equate to coercion.” Stated differently, merely being exposed to the prayer is not enough.
However, in Mahmoud, Justice Alito’s majority opinion discussed coercion in a different fashion. Justice Alito reads Yoder as holding “that the Free Exercise Clause protects against policies that impose more subtle forms of interference with the religious upbringing of children.” The Court goes on to say that the government can violate the Free Exercise Clause, even if there is only evidence of indirect coercion. Justice Alito writes:
According to the dissent, parents who send their children to public school must endure any instruction that falls short of direct compulsion or coercion and must try to counteract that teaching at home. The Free Exercise Clause is not so feeble. The parents in Barnette and Yoder were similarly capable of teaching their religious values “at home,” but that made no difference to the First
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