Writing separately in the transgender care case, Sam Alito injected the weird non-sequitur that “[t]he Court has also suggested that religion is a suspect class.” It turns out that was a preview of coming attractions, with Alito writing the majority in Mahmoud v. Taylor, officially ramming strict scrutiny into every situation where the most cloistered parent in your school district gets hot and bothered that serving Dino Nuggets intrudes upon their religious belief that the Earth is 6,000 years old.
Technically, the Court’s conservative majority ruled for parents objecting to a handful of books in Montgomery County’s elementary curriculum that dared to suggest LGBTQ+ people both (a) exist and (b) might not be monsters.
No one really expected this Supreme Court to bypass an opportunity to memorialize anti-gay bigotry into the federal reporter. But there was an opportunity for the Court to say the schools have no rational basis to deny parents an option to keep their kids walled off from books with gay characters. It would be a stretch, but the current majority is nothing if not creative. The parents in this case could get the relief they — ostensibly — sought and the public education system would muddle forward.
Instead, the majority offered Alito a chance to upend the whole public education system, extending strict scrutiny to every parental complaint based in religion.
A government burdens the religious exercise of parents when it requires them to submit their children to instruction that poses “a very real threat of undermining” the religious beliefs and practices that the parents wish to instill.
Historically, this sort of protection applied to cases where the state tried to compel Amish parents to send their kids to school and not micromanaging curriculum. Alito handwaves this away with a rousing rendition of dictionary dissembling, “The primary definition of ‘coercion’ is little different from compulsion. See Webster’s Third New International Dictionary 439 (1971) (‘use of physical or moral force to compel to act or assent’); Random House Webster’s Unabridged Dictionary 398 (2d ed. 2001) (‘use of force or intimidation to obtain compliance’).”
Alito is absolutely the asshole who thinks wedding toasts should begin with a dictionary definition. It’s also hard to understand Alito’s deep concern about religious coercion when he’s been right there to constitutionally bless students being forced to pray in school.
The problem, as Justice Sotomayor notes in dissent, is “[i]f that is sufficient to trigger strict scrutiny, then little is not.”
The flaws in the majority’s reasoning are legion. The Court’s reading of Yoder is not simply incorrect; it is definitively foreclosed by precedent. The majority’s novel test, moreover, imposes no meaningful limits on the types of school decisions subject to strict scrutiny, as the Court’s own application of its test confirms. Today’s ruling thus promises to wreak havoc on our Nation’s public schools and the courts tasked with resolving this new font of litigation.
There’s really nothing in this opinion limiting some neo-Bob Jones University types from demanding public schools stop talking about interracial marriage on religious grounds. Or evolution. Or climate change. Or women wearing pants, for that matter. In an environment where conservative political viewpoints are increasingly bolted onto religion — with prosperity Gospel churches out there stirring tax policy and an unswerving belief that Democrats worship Satan into scripture — it’s hard to imagine where the line gets drawn.
And it doesn’t end with opt-outs.
Worse yet, the majority closes its eyes to the inevitable chilling effects of its ruling. Many school districts, and particularly the most resource strapped, cannot afford to engage in costly litigation over opt-out rights or to divert resources to tracking and managing student absences. Schools may instead censor their curricula, stripping material that risks generating religious objections. The Court’s ruling, in effect, thus hands a subset of parents the right to
veto curricular choices long left to locally elected school boards. Because I cannot countenance the Court’s contortion of our precedent and the untold harms that will follow, I dissent.
Put aside the chilling… we’re just starting the countdown to a parent rolling in claiming the constant opt-outs from 5th grade life sciences are discriminatory and the only solution is for the school to purge the curriculum for all students.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.