Jorge Barrera-Rojas (Yale University – Law School) has posted From Mahmoud v. Taylor to Strasbourg: Substantial-Interference and Public-Private Boundary on SSRN. Here is the abstract:
The Supreme Court’s Mahmoud v. Taylor (2025) introduced a substantial-interference test for parental Free Exercise claims: when governmental policies substantially interfere with families’ ability to transmit religious convictions, strict scrutiny applies. Yet within months, federal circuits began inverting the framework—applying accommodation requirements designed to constrain governmental actors to private religious schools instead. Meanwhile, the European Court of Human Rights has spent decades adjudicating analogous parental-rights disputes without a stable threshold distinguishing permissible instruction from rights-violating compulsion.
This Article analyzes and develops Mahmoud’s substantial-interference standard, sustaining that it can stabilize both American and European opt-out jurisprudence—but only if courts maintain a critical boundary between public and private entities. The test refines threshold analysis already implicit in Article 2 of Protocol No. 1, read with Article 9 of the European Convention. Applied to the ECHR’s fractured case law, substantial-interference logic would correct extreme judicial deference in compulsory-education cases while confirming rights-protective outcomes where exemption procedures prove inadequate. Yet the framework’s promise depends on resisting a dangerous symmetry: recent American circuit decisions (Foothills Christian Ministries v. Johnson, St. Mary Catholic Parish v. Roy) and the UK Supreme Court’s JR87 reveal courts’ temptation to treat public funding or licensure as sufficient to convert private religious schools into quasi-governmental actors subject to pluralism requirements. Properly bounded, the substantial-interference test protects parents from governmental compulsion in public education where exit is prohibitively costly; it does not authorize courts to standardize religious formation in privately governed institutions. This boundary-sensitive framework protects pluralism without standardization on both sides of the Atlantic.