Justice Alito's Opinion in Mahmoud v. Taylor is Dangerous and Gratuitously Dishonest

I'll start by giving credit where credit is due. In Mahmoud v. Taylor, Justice Alito, writing for the majority, rejects the defendant school board's contention (echoed by the dissent) that the LGBTQ+-inclusive curriculum merely "exposes" students to ideas that were inconsistent with the religious views of their parents. A fair assessment of the books and the guidance makes clear that the school board aims to instruct students on the importance of treating LGBTQ+ persons with respect and dignity.

And now I'm done giving Justice Alito and the majority credit. They get one thing right. And it wasn't even an important thing, as Justice Alito himself says that it's not essential to distinguish between exposure and instruction, as either could substantially burden religion. Meanwhile, as I'll now explain, apart from getting that one apparently unimportant thing right, the majority got the important stuff wrong.

Let's start with the biggest thing. The opt-out that the Court gives to parents is a practical nightmare for school districts.

Curricula in many subjects can contradict some religious beliefs that parents would like to inculcate in their minor children. A decent geology class will instruct students that the Earth is roughly 4.5 billion years old; a decent astronomy class will teach that the known universe is about 13.8 billion years old; both of those facts are inconsistent with so-called young Earth creationism, which takes the Biblical account of the Earth's origins literally. Likewise, a biology class will instruct students that species, including humans, have evolved via the process of natural selection, in which random mutations, the vast majority of which are harmful, occasionally confer survival advantages. That account of evolution--which reflects our best current scientific understanding--contradicts both literal Biblical creationism and the ostensibly more modern view of roughly one third of Americans, who believe that evolution has occurred but that it has been guided (somehow) by a Divine hand.

A student who gives the age of the Earth, the universe, or the species homo sapiens as 6,000 years on a geology, astronomy, or biology exam will be marked wrong. That, according to the logic of Mahmoud, is a burden on (because a contradiction of) religion, and so, again following the opinion's logic, students whose parents object on religious grounds are entitled to have their children exempted, without any adverse academic consequences, from having to study geology, astronomy, and biology. Or perhaps they are entitled to some other accommodation, such as having their exams marked correct if they give answers derived from Biblical literalism rather than science. 

Hold on. Maybe schools have a compelling interest in teaching science but not in teaching respect for sex and gender diversity?

That seems far-fetched. A small percentage of public school students will go on to have careers in geology, astronomy, or biology. True, knowledge of biology will be useful in navigating other aspects of their lives, such as health care--although it seems that it is now possible to be Secretary of Health and Human Services without knowing any biology. But in any event, civics lessons, including the lesson that all people--regardless of their sexual orientation or gender identity--deserve respect are at least as compelling for schools to teach as are aspects of science that most students will not have occasion to use.

Curiously, Justice Alito's opinion does not say whether the school board has a compelling interest in civics education but perhaps we can infer that he thinks it does from the fact that he says the district has a "compelling interest in having an undisrupted school session conducive to the students’ learning." Any such compelling interest would seem to be parasitic (at least to some extent) on what the school is teaching, as a fanciful example illustrates.

Suppose that a school board mandates that all students age six and older receive wilderness survival education consisting of an annual two weeks in the forest, with less and less support as the children age. Two weeks overlap two sabbaths, so some Muslim parents want their children excused on Fridays, some Jewish and Seventh Day Adventist parents want their children excused on Saturdays, and some (non-Adventist) Christian parents want their children excused on Sundays. The school asserts an interest in avoiding the serious disruption that would result from selectively allowing students of different faiths to exit from and then return to the wilderness on different days during the course of the exercise. Is that a compelling interest? No, at least not unless the underlying instruction in wilderness survival serves a compelling interest.

Thus, ingredient in Justice Alito's concession that the school has a compelling interest in avoiding disruption is at least an arguendo assumption that the school has a compelling interest in civics education that includes its LGBTQ+-inclusive curriculum. However, the Court goes on to say that "the Board's conduct undermines its assertion that its no-opt-out policy is necessary to serve that interest." Reading that, I expected Justice Alito to say that therefore the policy isn't narrowly tailored to serve the compelling interest, but somewhat confusingly, he goes on to conclude instead that the Board lacks a compelling interest for the policies. No matter, one way or another, the Board loses.

That's the dangerous part of the decision to which I referred in the title of this essay. As Justice Sotomayor warns in dissent--with examples the majority makes no real effort to refute--parents will now be able to lodge religious objections to just about any aspect of a public school curriculum.

The majority opinion is also gratuitously dishonest in how it describes why strict scrutiny even applies. Under Employment Division v. Smith, general laws that do not single out religious practices for adverse treatment do not trigger any heightened scrutiny under the Free Exercise Clause. The LGBTQ+-inclusive curriculum is a general law; yet the Court subjects it to strict scrutiny. Why?

Justice Alito points out, correctly, that Smith distinguished rather than overruled Wisconsin v. Yoder, in which the Court held that Old Order Amish parents were constitutionally entitled to an exemption from the state law mandating education up to the age of 16. Justice Scalia, writing for the Court in Smith, distinguished the right recognized in Yoder as one of a number of what came to be called hybrid rights. He wrote: 

The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press . . . or the right of parents, acknowledged in Pierce v. Society of Sisters, 268 U. S. 510 (1925), to direct the education of their children, see Wisconsin v. Yoder, 406 U. S. 205 (1972) (invalidating compulsory school attendance laws as applied to Amish parents who refused on religious grounds to send their children to school).

In footnote 14 of his Mahmoud opinion, Justice Alito disclaims reliance on Smith's notion of hybrid rights, but what he says in the accompanying text is dishonest. He writes that in Smith the Court "explained that the general rule" under which neutral laws trigger no heightened Free Exercise scrutiny "did not apply in Yoder because of the special character of the burden in that case. 494 U.S., at 881." But if you go to page 881 of Smith you will find no mention whatsoever of any special character of the burden. What you will find, indeed, all you will find, is the language I quoted above articulating the hybrid-rights exception.

Thus, in Mahmoud, Justice Alito invented a special character-of-the-burden exception to Smith and then falsely claimed that the Court itself recognized this particular exception in Smith.

What's especially peculiar is that that particular bit of dishonesty (or, perhaps slightly more charitably, incompetence on the part of Justice Alito or one of his law clerks) was unnecessary. Justice Alito had at his disposal an alternative means of getting around Smith. In cases like Fulton v. Philadelphia and Tandon v. Newsom, the Roberts Court has greatly expanded another exception that the Smith Court recognized: where the government has in place a system for granting exceptions, the failure to grant religious exceptions comparable to secular ones can itself render the challenged policy discriminatory. The recent cases read this exception so broadly that just about any seemingly religion-neutral law will fall outside the Smith rule so long as there are any secular exceptions. In Mahmoud, the Court could have easily said that the granting of opt-outs from sex education but not from the LGBTQ+-inclusive curriculum renders the program non-neutral and outside the Smith rule for that reason. Indeed, the Court more or less said that, not as the trigger for strict scrutiny but as the reason why the policy should fail strict scrutiny. Given the Court's precedents and druthers, the fact that there were other exceptions could have done double duty--serving both as the basis for applying strict scrutiny and to show that the policy is not narrowly tailored.

In the end, however, I am grateful to Justice Alito for having fit the case into his made-up exception for Yoder-like cases because express reliance the actual reasoning of Smith would have been even more destructive. In footnote 1 in Smith, Justice Scalia indicated that "the non-free exercise principle" explained the result in the hybrid-rights cases. Put differently, Smith is  best read as not having established any hybrid rights category at all (despite the fact that some commentators and lower courts have understood it to do so). Read alongside footnote 1, what Justice Scalia seems to have been saying in distinguishing the prior cases that seemingly recognized religious exceptions to neutral laws is that those weren't free exercise cases at all, but cases in which a free exercise claim happened to be asserted alongside a successful claim under a "non-free exercise principle."

In a case like Yoder, the non-free exercise principle is the substantive due process right of parents to direct the upbringing of their children. Had Justice Alito specifically relied on the hybrid rights rationale, that would have presumably carried with it the logic of the Smith footnote, which in turn would mean that parents would now have a constitutional right to opt their children out of any class to which they object, even if not on religious grounds.

Don't get me wrong. As Justice Sotomayor warns in her dissent, an opt-out based only on religion is still incredibly broad and thus potentially destructive of public education. But absent Justice Alito's dishonesty about the reason why Yoder survives Smith, it could have been worse.

Before concluding, I should add that while I think Mahmoud is wrongly decided, I do have some sympathy for parents who object to what their children are being taught in school. When my own children were in elementary school, my late wife and I objected to the then-practice of dissecting animal cadavers. Unlike the human cadavers that are used in medical school training and are donated by voluntary bequest, animals are typically bred and killed specifically for the purpose of dissection, so we regarded this practice as inconsistent with veganism. We were fortunate that the teacher and principal took our complaint seriously and not only allowed our kids to opt out but ended the elementary school practice of dissection entirely, given its dubious educational value for fourth graders.

That said, dissection was an extreme practice that would have involved each of our children contributing demand for the unnecessary killing of an animal. There remained a great many lessons and books that normalized animal exploitation and were thus inconsistent with the values we wanted to inculcate in our children. We could not and did not reasonably expect that they should be exempted from every such lesson.

Requiring schools to accommodate every religious request to opt students out of lessons is not only burdensome but inconsistent with an overarching goal of public education in a pluralistic society: teaching young citizens to co-exist and cooperate with people who hold different views even on matters of great importance. Justice Alito's Mahmoud opinion pays lip service to this central goal of public education in describing the religious heterogeneity of Montgomery County but ultimately betrays it.