During the oral arguments for 'Mahmoud v. Taylor', Supreme Court Justice Amy Coney Barrett pressed an attorney about the burden LGBTQ+ books in schools place on students.
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00:01So, counsel, we've talked a lot about burden, and I'd like to get a definition.
00:05So, Justice Sotomayor's questions, I think, track what the Fourth Circuit said, which
00:09is that compulsion is required.
00:12That's not your position, that compulsion is too far, right?
00:17So, can you precisely define for me what it means to have a burden?
00:22Yes, I think there's three main ways this court has reviewed that.
00:25Under Yoder, it would be, is there substantial interference with the parents' ability to
00:30direct the religious upbringing of their children?
00:32We think we've shown that here.
00:34Under cases like Sherbert that have continued through to Fulton, it's, are the parents being
00:39pressured to abandon or modify their religious beliefs in order to access a public benefit,
00:46like public education?
00:48And then I think we also have what I think Justice Gorsuch may have been suggesting, just
00:52if there's straight-up discrimination, where some religious students are opted out and
00:57others aren't, then that itself would also be a burden.
01:00And I think we satisfy any one of those tests.
01:02Okay, I have questions for you about those tests, but I'm going to bracket them to just
01:06follow up on the burden question.
01:08Substantial interference from Yoder.
01:11So, would you say you could root it in that because it's rooted in the case?
01:14Is it somehow rooted in the definition of prohibit in the First Amendment?
01:18Because it seems to me that, you know, the questions that you're getting are about line drawing.
01:21I mean, Justice Kagan was making this point.
01:24And one place where some of that line drawing might happen is in the definition of burden.
01:28So, I think the definition of burden is important.
01:30And really, that's the main thing that's before us.
01:33The question of whether you get an opt-out really goes to the Smith analysis or strict
01:39scrutiny under Yoder.
01:40We don't even have to decide that, right?
01:42We don't have to decide whether you get the opt-out.
01:44We just have to decide if the Fourth Circuit accurately defined what a burden is.
01:48I mean, the court doesn't have to.
01:50It's true.
01:50I think there are multiple reasons why this court should.
01:52I know you want us to.
01:53But we don't have to.
01:55Correct.
01:55Really, what we have to do is nail down what it means to burden the right, right?
01:59That's correct.
01:59Okay.
02:00So, unreasonable interference.
02:02And you would root that primarily in Yoder for that strain of the doctrine.
02:07Correct.
02:07Okay.
02:08Now, what kind of a claim are you bringing?
02:10Are you bringing a hybrid rights claim for purposes of Yoder?
02:13Are you kind of bringing all of them, like a straight-up free exercise claim, a Smith claim?
02:18I mean, it's a little bit hard to pin down.
02:20Yeah, I think we're bringing all of them.
02:21We think in Smith, the court said that Yoder fell outside of its rule.
02:27Excuse me.
02:27And so, we think that that's a separate track.
02:32And whatever the court meant by hybrid rights or other rights that were at issue in Yoder,
02:39we have those same here.
02:41However you define that, this is almost exactly the same situation where parents are concerned
02:46about what their children are being taught in the highly coercive environment of the public
02:49schools.
02:50And here we have, even more egregiously, curriculum designed.
02:56The board said, when you select these books, we want you to select books that will disrupt
03:00cis-normativity, disrupt heteronormativity.
03:05And so, we think that whatever Smith meant by hybrid rights that may have been at issue
03:10in Yoder, we meet that definition.
03:13Do we have to embrace the hybrid rights theory in order to analyze your claim or your definition
03:18of burden for purposes of Yoder?
03:20Do we have to say Yoder is about hybrid rights and this is why you satisfy the question?
03:24I don't think so, Your Honor.
03:25This court recently, as in Espinoza, recognized Yoder as a case being about the free exercise
03:30right of parents.
03:31The questions presented in Yoder were all about free exercise.
03:34And so, I don't think that any side statements that were made in Smith have to govern how this
03:38court treats that rule here.
03:40Okay.
03:40And now, let me ask you about the burden in this case.
03:44So, there's been a lot of talk about exposure.
03:46The Fourth Circuit said this is just about exposure.
03:49You've pointed out that in cases like Intersection Allies, there's actually, in the book, it presents
03:59a worldview, right?
04:00And it says, let's disrupt the norms, that book.
04:02Let's disrupt the norms.
04:03And many of the books, it's not just pictures.
04:06It's actually the text.
04:08It's talking about there are not just two genders, embracing non-binary and pronouns, et
04:14cetera.
04:16So, that's exposure, though, to those ideas.
04:17It's not just exposure to the pictures of, you know, the two men getting married.
04:21It's exposure to the ideas.
04:23That's correct.
04:23But to clarify, what are your clients objecting to?
04:27Are they objecting only to exposure?
04:29Or are they objecting to what they're calling indoctrination?
04:32If by exposure you mean having the books read to them, they do object to that.
04:37They're not objecting to the books being on the shelf or available in the library without
04:40a teacher requiring them to read it or reading it to them.
04:43So, you would not be making the same claim based on your client's religious beliefs if
04:49they were just on the shelves or just in the library?
04:51Correct.
04:52Could another parent bring that claim?
04:54I suppose they could, but then you would, I mean, again, we don't see these kinds of
04:58claims happening, but they would almost certainly lose because it would, strict scrutiny would
05:03easily be satisfied if every student were allowed to say, I want this book or not that
05:07book.
05:08I mean, no student has the right to tell the school which books to choose or what curriculum
05:12to teach or what other students will have to learn.
05:15And so, we think those would easily fail under strict scrutiny.
05:18Okay.
05:18So, it's not about exposure.
05:20It's not about books on the shelf.
05:21It's not about books in the library.
05:23It's about actually reading the books with the text that communicates the ideas that
05:27are contrary to your client's sincerely held religious beliefs.
05:30Right.
05:31Their beliefs, they follow, for example, the papal exhortation under familiar consortia that
05:35they shouldn't expose their children during their innocent years to instruction on sex
05:40that's disconnected or disassociated from moral principles.
05:44And so, that's what they're, and, you know, the Mahmood family, they also have an objection
05:49to any kind of discussion for young children outside of their family circle.
05:52As do many families, as the courts noted.
05:55Okay.
05:55And so, I want to talk about the public benefit analysis.
05:59So, the government frames this in terms of public education as a public benefit.
06:04And your friends on the other side do, too.
06:06And I'm just trying to figure out if that's the right way to think about this.
06:09Because in Maryland, you're compelled to send your children to public schools.
06:13And it's a misdemeanor if you don't, and you're fined if you don't.
06:17And it's true that the statute gives you an exemption to that compulsion if you choose
06:21homeschooling or private school.
06:23And, you know, what is it, like, thorough and comparable instruction.
06:28But this isn't like a public benefit like we apply for, you know, rubber tires for our
06:34playground.
06:34Or, you know, we apply for a license to engage in some kind of activity.
06:39There's actually a compulsion here.
06:41So, is public benefit the right way to think about this?
06:44Well, I think if the court does think about it in that context, it's a much more valuable
06:48benefit than just getting access to rubber tires or some of the other things this court
06:53has found burdened religion.
06:55And so, but also I think the coercive element is adequate for this court to reach a conclusion
07:01in favor of my client.
07:03Well, which way do you think it fits better?
07:04I mean, you're compelled to send your child to public school and pay in a fine unless
07:09you take advantage of an exemption.
07:12So, it's just hard for me to see how it's a public benefit in the same way that some
07:15of our cases have talked about public benefits.
07:17So, which model?
07:18I mean, I understand you don't want to disclaim public benefit, but which way do you think
07:21it fits?
07:22Well, I think certainly the Barnett example is a very good example of where you're actually
07:25compelling children to do things that are against their beliefs.
07:28And I think that would be it.
07:29That's a very fitting model for this case.
07:31Okay.