From the perspective of legal conservatives, the Supreme Court today finished off one of its four best Terms since the 1930s. The other three Terms in the top four were last year, the year before, and the year before that.
The three most important rulings that the Court issued today all had six-justice conservative majorities. I’m going to present Mahmoud v. Taylor in this post and Free Speech Coalition v. Paxton and Trump v. CASA, Inc. in separate posts. (In all three, I will borrow heavily from the opinions while often not using quotation marks or ellipses.)
Justice Alito wrote the majority opinion in Mahmoud:
The Board of Education of Montgomery County, Maryland has introduced a variety of “LGBTQ+- inclusive” storybooks into the elementary school curriculum. These books—and associated educational instructions provided to teachers—are designed to “disrupt” children’s thinking about sexuality and gender. The Board has told parents that it will not give them notice when the books are going to be used and that their children’s attendance during those periods is mandatory. A group of parents from diverse religious backgrounds sued to enjoin those policies. They assert that the new curriculum, combined with the Board’s decision to deny opt outs, impermissibly burdens their religious exercise.
Today, we hold that the parents have shown that they are entitled to a preliminary injunction. 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. Wisconsin v. Yoder (1972). And a government cannot condition the benefit of free public education on parents’ acceptance of such instruction.
In recognition of the county’s religious diversity, the Board’s “Guidelines for Respecting Religious Diversity” profess a commitment to making “reasonable accommodations” for the religious “beliefs and practices” of MCPS students. This case, however, arises from the Board’s abject refusal to heed widespread and impassioned pleas for accommodation.
We hold that the parents who sought to have their children opt out of the storybooks are likely to succeed on their claim that the Board’s policies unconstitutionally burden their religious exercise. We have long recognized the rights of parents to direct the religious upbringing of their children. And we have held that those rights are violated by government policies that substantially interfere with the religious development of children.
Like many books targeted at young children, the storybooks are unmistakably normative. They are clearly designed to present certain values and beliefs as things to be celebrated and certain contrary values and beliefs as things to be rejected. (See pp. 22-25.) These books carry with them a very real threat of undermining the religious beliefs that the parents wish to instill in their children. Like the compulsory high school education considered in Yoder, these books impose upon children a set of values and beliefs that are “hostile” to their parents’ religious beliefs. And the books exert upon children a psychological “pressure to conform” to their specific viewpoints. The books therefore present the same kind of “objective danger to the free exercise of religion” that we identified in Yoder. That “objective danger” is only exacerbated by the fact that the books will be presented to young children by authority figures in elementary school classrooms.
None of the counterarguments raised by the dissent, the Board, the courts below, or the Board’s amici give us any reason to doubt the existence of a burden here. (See pp. 27-35.)
Under Employment Division v. Smith (1990), the government is generally free to place incidental burdens on religious exercise so long as it does so pursuant to a neutral policy that is generally applicable. But when the burden imposed is of the same character as that imposed in Yoder, we need not ask whether the law at issue is neutral or generally applicable before proceeding to strict scrutiny.
To survive strict scrutiny, a government must demonstrate that its policy advances interests of the highest order and is narrowly tailored to achieve those interests. The Board asserts that its curriculum and no-opt-out policy serve its compelling interest in maintaining a school environment that is safe and conducive to learning for all students.
We do not doubt that, as a general matter, schools have a compelling interest in having an undisrupted school session conducive to the students’ learning. But the Board’s conduct undermines its assertion that its no-opt-out policy is necessary to serve that interest. The Board continues to permit opt-outs in a variety of other circumstances. Its robust system of exceptions undermines its contention that the provision of opt-outs to religious parents would be infeasible or unworkable.
Justice Thomas, joining Justice Alito’s opinion in full, also wrote a concurring opinion.
Justice Sotomayor, joined by Justice Kagan and Justice Jackson, dissented: “Today’s ruling threatens the very essence of public education. The Court, in effect, constitutionalizes a parental veto power over curricular choices long left to the democratic process and local administrators. That decision guts our free exercise precedent and strikes at the core premise of public schools: that children may come together to learn not the teachings of a particular faith, but a range of concepts and views that reflect our entire society.”