Re: Two cases asserting free exercise of religion heard at Supreme Court

Adam H. Kerman <ahk@chinet.com> wrote:

. . .

I'm a lot less concerned about the other case, Mahmoud v. Taylor, which
is about parents objections to school curriculum and that it's become
mandatory for public school children to be instructed in LGBTQ+ themes.

I've argued before that it's a freedom of the press issue if parents
seek to remove books on subjects they don't approve of from school and
public libraries to "protect children". I don't see parental objections
to curriculum as censorship. Libraries offer reading material as a
choice but curriculum is imposed.

My guess is that the Supreme Court will side with the parents.

https://www.scotusblog.com/2025/04/supreme-court-considers-parents-efforts-to-exempt-children-from-books-with-lgbtq-themes/

If you don't want to listen to the oral transcript (easily findable in
the C-SPAN archives), here are two clips.

Gorsuch, in his pleasant voice and low-key manner making the attorney
for the board of education squirm, and Ketanji Brown Jackson, not
letting the parents' attorney go off topic, complain that the plaintiffs
seeking injunctive relief didn't prepare an adequate record and that
this is, therefore, the wrong case for the Supreme Court to make a
landmark ruling on. Despite her complaint that counsel went off topic to
raise inflammatory facts from a similar case but inapplicable here, she
then offered a series of hypotheticals of her own.

In the first video, in my opinion, Gorsuch builds toward the "crisis" by
eliciting a number of reasonable points from the Q&A, but his "crisis"
question, er, assumes facts not in evidence in trying to get at strict
construction (which he doesn't literally say). If the state is
discriminating against religion, what is the secular purpose?

Whoa. This isn't segregation in which equal protection must be
considered. This is about academic freedom and parents rights to raise
their kids, competing First Amendment interests.

Even if the board of education could expect a parent to object to
curriculum, I don't feel they have any obligation to review it for
conflict with religion (Gorsuch even lists large religious groups).

Gorsuch sure as hell is not thinking about consequences for academic
freedom here. He's getting it wrong. Make the decision about the
parent's right to raise his own kid superior to academic freedom, that
the kid can skip the lesson WITHOUT the board considering conflict with
religious teaching before offering it in the first place.

This is why I also find it so troubling if the right of free exercise is
made superior to the right of free speech.

The attorney answered, not falling into Gorsuch's logic trap, that
discrimination on its face, favoring one religion over another, is
coercion and therefore a burden. I think "coercion" is being used as a
legal term as part of strict scrutiny analysis, which I haven't studied
adequately.

Gorsucg got this wrong and the opinion should not touch upon this, which
is far removed from the facts of the case.

In the second video, it's from a YouTube channel that typically does
video clips of congressional hearings making conservative (often Sen
John Kennedy (R-LA)) look brilliant. For what it's worth, the attorney
for the parents avoided Brown's logic traps in her hypotheticals.

Brown completely gets off track by referring to a case (that I've never
heard of and she only mentioned the name of one party making it
difficult to look up; maybe BTR1701 knows) by question whether there's a
religious burden at all given that parents didn't choose to send their
children elsewhere.

Yes, I always argue that the consumer has the power to make a different
choice, but having made a choice, the consumer then isn't precluded from
asking for a better product or service.

But public education is government, not a consumer product. Public
schools cannot prevent enrollment like private or religious schools and
certainly cannot refuse enrollment by inability to pay tuition.

She's wrong here in concept. What about her comment, In so many other
constitutional doctrines, we don't focus on whether people can actually
afford to protect their rights.

There's one I can think of off the top of my head, the Sixth Amendment
right to counsel in a criminal case. The defendant may ask the judge for
counsel and the judge will see that counsel is appointed without charge
to the defendant.

But yes, there are numerous other rights that people cannot afford to
protect without paying for counsel and going through expensive trials,
pretty much every case taken on by ACLU and Institute for Justice, or
post-trial exonneration cases, etc.

How much justice can one afford? She pointed out that there is a right
to counsel in civil litigation regardless of whether fees are
affordable. She asked, given that parents may send their children to
school elsewhere, are the schools being coerced to change curriculum?

In response, the parents' attorney cited cases in which schools weren't
coerced but pressured but he didn't have time to give an elaborate
explanation as to where the bright line is.

We'll find out if she was persuaded.

Gorsuch
https://www.youtube.com/watch?v=-dEDuM-_f1I

Brown
https://www.youtube.com/watch?v=HLbd0OdH0EU