Contrasting Coercion for the Free Exercise Clause in Mahmoud and Coercion for the Establishment Clause in Kennedy
The Court finds that the government cannot indirectly coerce children who are exercising their religious beliefs, but the government can indirectly coerce children who are not exercising their religious beliefs.
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 Amendment analysis in those cases.
Justice Sotomayor's dissent explains that the Roberts Court has in fact required such a heightened pleading standard.
Consistent with these longstanding principles, this Court has made clear that mere exposure to objectionable ideas does not give rise to a free exercise claim. That makes sense: Simply being exposed to beliefs contrary to your own does not "prohibi[t]" the "free exercise" of your religion. Amdt. 1. Nor does mere "'[o]ffense . . . equate to coercion.'" Kennedy v. Bremerton School Dist., 597 U. S. 507, 539 (2022) (quoting Town of Greece v. Galloway, 572 U. S. 565, 589 (2014) (plurality opinion) (alteration in original).
Justice Sotomayor returns to Kennedy later in her dissent.
So too, in Kennedy v. Bremerton School Dist., the Court recognized that seeing objectionable conduct alone is not actionable under the First Amendment. There, the Court rejected the argument that the exposure of children to a school coach's religious prayer violated the Establishment Clause. See 597 U. S., at 538–539. Even though hearing and watching an authority figure engage in a denominational prayer with classmates at a school-sponsored event could, of course, undermine parents' efforts to instill different religious beliefs in their children, a majority of this Court concluded that no cognizable "coercion" had occurred, and so no Establishment Clause violation inhered in the coach's conduct.
Is it possible to reconcile Mahmoud and Kennedy?
Well, one obvious distinction is that Kennedy concerned the Establishment Clause and Mahmoud concerned the Free Exercise Clause. The trend in recent years has been to reduce judicial scrutiny of Establishment Clause claims while increasing judicial scrutiny of Free Exercise Clause claims. So perhaps it is not surprising that the Court would be warier of possible coercion in the context of the Free Exercise Clause than in the Establishment Clause context.
But I think there is a deeper principle at play here. In Mahmoud, the Court is concerned that the government is interfering with a child's religious development. In other words, children who are exercising their religious beliefs now have to contend with contrary information being conveyed by the school. In Kennedy, the dynamics were flipped. The coach was exercising his religious beliefs, while the objecting students were not exercising their religious beliefs. To the contrary, the objecting students wanted to be shielded from possible coercive effects of the prayer. This was the same interest at play in Lee v. Weisman and related cases. But the Kennedy Court discounted this concern.
I think the distinction can be stated simply: the Court finds that the government cannot indirectly coerce children who are exercising their religious beliefs, but the government can indirectly coerce children who are not exercising their religious beliefs. Stated differently, children have the right to be free from indirect coercion that could affect their religious development, but children have no right to be free from indirect coercion that could affect their secular development. The government can't impose values that are hostile to religious beliefs, but can impose values that are hostile to secular beliefs.
I think what we are seeing, even if implicitly, is a recognition that the Religion Clauses are designed to protect religious people. Or, the Constitution protects the rights of those who believe more than it protects the rights of those who do not believe. As obvious as that may sound, for decades, the Religion Clauses were primarily interpreted to protect people from religion. The "play in the joints" invariably went towards secularism, and not the other way.
Mahmoud is at once a narrow case, and a broad case. It is narrow in the sense that the Court closely followed the "special character" of Yoder. It is not clear how this rule extends further. But Mahmoud is also a broad case in the sense that litigants raising Free Exercise Clause claims have a lesser burden than litigants raising Establishment Clause claims. I think this is a significant shift in the law that neither the majority nor the dissent acknowledged.
Going forward, secularists will need to shift how they litigate these issues. Indeed, I've already seen a creative example. One of the suits challenging Texas's new Ten Commandments law was brought by a parent who is a preacher. The parent argues that the religious message on display in the classrooms conflicts with the religious beliefs he seeks to impart on his children. Another parent objects to his minor child learning about "adultery" from the Ten Commandments. Indeed, Catholics find the adultery commandment is #6, while Jews find it is #7.
These are creative claims. Secularists will now have to dress their objections to religion up in religious garb. Then again, what is the remedy? The parents in Mahmoud sought an opt-out. The public school system can still teach the various books, so long as the children are excused. But there is no real opt-out from seeing a poster on the wall. It is either visible or not visible. I suppose you could put all of the opt-out secular students in a separate classroom without a Ten Commandments display. Students can't object to something they can't see. Relatedly, another Texas law permits prayers to be read in classrooms only for students who opt in.
Of course, there is a longstanding issue lurking that will eventually rear its head: sincerity. As people realize that raising religious claims can provide the grounds for exemptions--even with Smith still on the books--people will be tempted to assert religious beliefs that may not be sincere. Courts have historically been loathe to probe sincerity. But given how broadly the Court is now construing the Free Exercise Clause, there will be a sincerity reckoning, sooner or later. And as difficult as it is to probe sincerity of parents, I am not sure how to probe sincerity of children.