L. Joe Dunman (University of Louisville Brandeis School of Law) has posted Mahmoud v. Taylor’s Unanswered Questions on SSRN. Here is the abstract:
In Mahmoud v. Taylor, the United States Supreme Court ruled that a group of religious parents were entitled, under the free exercise clause of the First Amendment, to opt their children out of public school instruction using LGBTQ+-inclusive storybooks. In a majority opinion written by Justice Samuel Alito, the Court in Mahmoud rooted that entitlement in a free exercise right “to direct the religious upbringing of their children,” which the Court found not in the text or history of the First Amendment, nor in the due process clause of the Fourteenth Amendment, but in a small collection of its own decisions including Wisconsin v. Yoder and West Virginia v. Barnette. Mahmoud’s formulation of this parental right raises important questions the Court leaves unanswered. First, by rooting the right solely in the free exercise clause of the First Amendment, has the Court abandoned its previously claimed preference for text and history and resuscitated a more values-based approach to constitutional interpretation? Second, does the Court’s burden analysis create a functionally unlimited right to veto school policies of any sort? Third, how will courts resolve disagreements between parents (in custody battles and in civil rights litigation) who may exercise an otherwise equal right to direct their children’s upbringing? Fourth, as parents battle schools for total control of children’s minds, do children have any independent rights to direct their own religious destiny, or did Mahmoud further entrench the persistent, paternalistic view of children as totally subordinate? This article explores each of these questions through critique of the Court’s interpretative methods and its doctrinal applications. It also identifies recent lower court cases that have invoked Mahmoud in each of the relevant contexts. Though the article offers no firm answers to the questions raised, it hopes to serve as an insightful critical basis for future judicial and scholarly discussion.
Recommended!
To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.
Lawrence Solum