The Volokh Conspiracy
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The Status of Smith and Yoder After Mahmoud
The Court continues avoiding the Smith issue, but in an unexpected way.
A few days ago, I asked if the moment for overruling Smith had passed. At the time, I had not yet read Mahmoud. (I am still making my way through the opinions.) Now, having read Mahmoud, I see a Court that is desperately trying to stay away from the resolving the validity of Smith.
Let me lay out some salient facts from Mahmoud. The government initially allowed parents to opt-out their children from being exposed to certain books. However, that opt-out was later removed. And, as Justice Alito observed, "[t]he Board member went on to suggest that the religious parents were comparable to 'white supremacists' who want to prevent their children from learning about civil rights and 'xenophobes' who object to 'stories about immigrant families.'" Yet, the school permits other types of opt-outs for non-religious reasons.
Based on the Court's precedents, I could see two possible ways to avoid Smith. First, the Court could follow Masterpiece Cakeshop, and find that the statements from the board member were impermissible animus against religious parents. This policy would not be neutral towards religion. That finding would trigger heightened scrutiny under the rubric from Church of the Lukumi. Then again, Justice Sotomayor suggests in Footnote 15 that the Board Member was not actually expressing hostility towards religion, so that argument may not have worked.
Second, the government allowed an exemption for religious parents, but then removed that exemption, even as other exemptions are present. These facts resembles Roman Catholic Diocese, Tandon, and Fulton, under the "most favored nation" approach. In other words, religion is being treated worse than non-religion. This policy would then not be generally applicable, so would be reviewed with heightened scrutiny. The Court even cited Fulton:
This robust "system of exceptions" undermines the Board's contention that the provision of opt outs to religious parents would be infeasible or unworkable. Fulton, 593 U. S., at 542.
But Alito discussed the exemptions at the back-end scrutiny analysis, and not at the front-end to determine whether strict scrutiny applies.
Yet, the Mahmoud Court did not take Door #1 or Door #2. Justice Alito expressly said he wouldn't even consider these arguments:
We acknowledge the many arguments pressed by the parents that theBoard's policies are not neutral and generally applicable. See Brief for Petitioners 35–44. But we need not consider those arguments further given that strict scrutiny is appropriate under Yoder.
Instead, Justice Alito took Door #3: Yoder. Alito explains that Mahmoud has the same "special character" as Yoder, so the Court follows that precedent.
Here, the character of the burden requires us to proceed differently. 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. That much is clear from our decisions in Yoder and Smith. . . . And we explained that the general rule did not apply in Yoder because of the special character of the burden in that case. 494 U. S., at 881. Thus, when a law imposes a burden of the same character as that in Yoder, strict scrutiny is appropriate regardless of whether the law is neutral or generally applicable.
Therefore, given this "special character," Yoder does not fall under the Smith rubric. Thus, you get to heightened scrutiny without discussing whether the law is neutral or generally applicable. I suspect this indirect route was necessary to keep Justices Kavanaugh and Barrett on board. They do not want to revisit Smith, and this approach allowed the Court to avoid that precedent.
Yoder has long been a favorite case for religious liberty litigants to cite, but I was always uncertain about its status. In Smith, Justice Scalia had to bend over backwards to distinguish away Yoder. Accordingly, I did not think Yoder had much play outside the narrow confines of that decision. The Burger Court was sympathetic to the Amish, but I doubt other religious groups would have gotten similar treatment. This case doesn't appear in the Barnett/Blackman casebook.
In Mahoud, the lower court limited the case to the unique circumstances of the Amish. The District Court "dismissed Yoder as 'sui generis and 'inexorably linked to the Amish community's unique religious beliefs and practices.'" Justice Alito, however, explained this was an error:
Although the decision turned on a close analysis of the facts inthe record, there is no reason to conclude that the decision is "sui generis" or uniquely "tailored to [its] specific evidence," as the courts below reasoned. We have never confined Yoder to its facts. To the contrary, we have treated it like any other precedent. We have at times relied on it as a statement of general principles. See, e.g., Espinoza, 591 U. S., at 486; Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 881, and n. 1 (1990). . . .
Yoder is an important precedent of this Court, and it cannot be breezily dismissed as a special exception granted to one particular religious minority. It instead embodies a principle of general applicability,
In other contexts, I've explained that originalist judges can, in certain circumstances, decline to extend non-originalist precedents. But I think that can only be done where there is no otherwise controlling precedent.
In dissent, Justice Sotomayor explains that Smith's treatment of Yoder was not quite so positive:
The problem for the majority is that this is not what Smith said. Smith recognized that "[t]he 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." Only in such "hybrid situation[s]" does the Court set aside its neutral and generally applicable inquiry. Yoder, the Smith Court explained, was such a hybrid rights case because the parents relied on both their substantive due process rights to "direct the education of their children" and the Free Exercise Clause. Here, however, the Court's analysis makes no mention of substantive due process rights or the Fourteenth Amendment Due Process Clause. It instead asserts, simply, that "the burden in this case is of the exact same character as the burden in Yoder."
I'll return to the substantive due process point in another post. Justice Alito responds to the "hybrid" rights point briefly:
In Smith, the Court speculated that the general rule was not applied in Yoder because it "involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections." We need not consider whether the case before us qualifies as such a "hybrid rights" case. Contra, post, at 35 (SOTOMAYOR, J., dissenting). Rather, it is sufficient to note that the burden imposed here is of the exact same character as that in Yoder. That is enough to conclude that here, as in Yoder, strict scrutiny is appropriate regardless of whether the policy is neutral and generally applicable.
I recently mentioned the "hybrid rights" doctrine in the context of FCC v. Consumers' Research. And it seems the Court has no interest in rehabilitating that Scalia-created doctrine.
What do we make of Mahmoud? The Court has gone all in on rehabilitating Yoder. Indeed, the Court has analogized Yoder to Tinker--something I'm not sure the Court has done before:
And the right to free exercise, like other First Amendment rights, is not "shed . . . at the schoolhouse gate." Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 506–507 (1969). Government schools, like all government institutions, may not place unconstitutional burdens on religious exercise.
Alito repeats this point later in a quotable section:
As a result, the right of parents "to direct the religious upbringing of their" children would be an empty promise if it did not follow those children into the public school classroom. We have thus recognized limits on the government's ability to interfere with a student's religious upbringing in a public school setting.
There you have it. Religious students bring their religious liberty into the public school classroom. This sort of statement would have been unthinkable a decade ago. If the Court overrules Stone v. Graham or Everson, this sentence will be quoted. The Court has pivoted strongly here.
Moreover, the Court extends Trinity Lutheran to the context of denying benefits to religious children in public schools.
As we have previously held, when the government chooses to provide public benefits, it may not "condition the availability of [those] benefits upon a recipient's willingness to surrender his religiously impelled status." Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. 449, 462 (2017) (internal quotations marks and alterations omitted). That is what the Board has done here. . . . Public education is a public benefit, and the government cannot "condition" its "availability" on parents' willingness to accept a burden on their religious exercise. Ibid.
Previously, I thought this doctrine was limited to private schools seeking benefits from the state. But now it extends further.
There are many doctrinal shifts in this case. Plus the Court crafted a dichotomy between coercion for the Establishment Clause and coercion for the Free Exercise Claus here. There is a lot more to consider.
