The Volokh Conspiracy
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More on Coercion in Mahmoud
Implications for the Ten Commandments cases
Some quick thoughts occasioned by Josh Blackman's post on coercion in Mahmoud v. Taylor, last Term's parental rights case.
As readers will recall, Mahmoud held that a Maryland school district violated the Free Exercise Clause when it rescinded an opt-out policy that had allowed parents to have their children excused from elementary school lessons featuring LGBTQ+-inclusive storybooks. The Court reasoned that the storybooks, along with classroom discussions that encouraged teachers to reinforce their messages, imposed psychological pressure on students to accept a normative view of sexuality—one that directly conflicted with the religious teachings the parents sought to instill. That pressure, the majority concluded, amounted to a substantial burden on the parents' religious exercise.
In a post yesterday, I noted what seemed like an ideological reversal in the case. In the school prayer context—for example, Kennedy v. Bremerton School District—it's typically progressives who emphasize the dangers of subtle coercion and impressionable students, while conservatives downplay those concerns. In Mahmoud, the roles flipped. The conservative majority focused on the psychological pressure placed on young children by state-endorsed messaging, while the progressive justices appeared less troubled by that dynamic.
So which side is being inconsistent? Perhaps both are simply responding to context. Or perhaps the concept of "coercion" is more manipulable than either side tends to admit.
Josh offers one way to reconcile Mahmoud and Kennedy: by distinguishing between pressure on students' religious beliefs versus their non-religious beliefs. Under this reading, Mahmoud bars the state from pressuring students to abandon religious teachings, but Kennedy permits exposure to religious ideas, even if the state implicitly favors them, so long as there's no coercion into belief.
I wonder if another, simpler distinction might do more work: the age of the students involved. Mahmoud concerned very young children—kindergarten through fifth grade—who are especially vulnerable to subtle cues from teachers. Kennedy, by contrast, involved high school students, who, in theory at least, are better equipped to resist classroom pressure—or have already learned to tune out much of what their teachers say. In other words, the Court might be drawing an implicit line based not just on the nature of the message but on the susceptibility of the audience.
Josh also rightly highlights a doctrinal frontier: the Ten Commandments display cases currently working their way through the lower courts. These raise hard questions for conservatives post-Mahmoud. In Stone v. Graham (1980), the Court struck down a classroom display of the Ten Commandments under the Lemon test. But since Kennedy, Lemon is out, and the Court has instructed lower courts to apply a "history and tradition" framework to Establishment Clause claims.
Even under that revised test, though, the state may not coerce religious belief. And if Mahmoud teaches that distributing LGBTQ+-affirming storybooks to elementary schoolers is too coercive, might a Ten Commandments display in the same setting pose a similar problem?
Courts may try to draw a line between passive and active messaging. One possible distinction appears in the European Court of Human Rights' decision in Lautsi v. Italy (2011), which upheld the display of crucifixes in public school classrooms. The Court reasoned that crucifixes were "passive symbols" and unlikely to indoctrinate students, unlike formal instruction. U.S. courts might adopt a similar distinction here. In Mahmoud, teachers were not just presenting material; they were encouraged to affirm the books' messages and correct students who disagreed. A silent wall display may strike courts as less coercive.
