Alito Cited One Precedent 45 Times in His Uncle Bobby Opinion. He Got It Totally Wrong.
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In 1968 Jonas Yoder was convicted of violating Wisconsin’s compulsory school-attendance law by refusing to send his 15-year-old daughter, Frieda, to school. The Yoders were members of the Old Order Amish, a centuries-old religious sect that practiced adult baptism and shunned such modern accoutrements as cars and the electrical power grid. Although the Amish allowed their children to attend public schools until age 14 to learn reading, writing, and arithmetic, they believed that high school would expose the children to too many worldly influences and would rupture their commitment to a life of simplicity, faith, and farming.
In the 1972 case Wisconsin v. Yoder, the Supreme Court agreed. By punishing Jonas Yoder and other Amish parents for keeping their 15- and 16-year-olds at home on the farm, the court held, Wisconsin had contravened the Constitution’s free exercise clause, which states that the government shall not “prohibit the free exercise of religion.” Because the Old Order Amish’s religion and its traditional, self-segregated way of life were, in the words of Chief Justice Warren E. Burger, “inseparable and interdependent,” compulsory school attendance amounted to a prohibition of religious practice.
Jump cut to this past Friday. A group of public-school parents in Montgomery County, Maryland, believes that gender assigned at birth is divinely bestowed and unchangeable. They are upset that the county school board has encouraged K–5 teachers to include a set of new LGBTQ+-inclusive storybooks in their curricula. One of the books, the not-so-subtle Intersection Allies, includes a page about a girl named Kate, who exclaims, “My friends defend my choices and place. A bathroom, like all rooms, should be a safe space.” Another, the disarmingly sweet Uncle Bobby’s Wedding, shows a young girl coming to terms with the marriage of her uncle, who is gay. When the objecting parents ask that their children be allowed to leave the classroom before such texts are read or discussed, the school board refuses.
In its 6–3 decision in Mahmoud v. Taylor, the Supreme Court sided with the parents, ruling that the free exercise clause entitles them to advance notice and an opt-out right whenever one of the offending storybooks is used. The books, said the court, pose “a very real threat of undermining the religious beliefs and practices that the parents wish to instill.” Justice Samuel Alito’s majority opinion relied almost exclusively on Wisconsin v. Yoder, citing it an astonishing 45 times. Yet no amount of citations could paper over how thoroughly Alito’s ruling misapprehends Yoder.
Mahmoud is plainly, almost stupefyingly wrong for at least three reasons. First, and most fundamentally, the court’s opinion overlooks the fact that public education, like democracy itself, is by its nature a messy, assimilative experiment. Our system of federalism commits public schooling primarily to local control, with a healthy dose of deference to the informed judgment of educators. Do those educators make mistakes, often as a result of interest group pressure? Sure. But aside from a few exceptions when fundamental rights are at stake (Brown v. Board of Education is the canonical example; Yoder may be another), we shouldn’t let parents make a federal case out of it. The reason is simple: That way lies chaos. As Justice Sonia Sotomayor pointed out in her dissenting opinion, schools will now scramble to identify potentially objectionable material (and not just on LGBTQ+ topics) in the hopes of avoiding litigation—or, worse, may choose instead to censor their curricula for all students.
Second, the Mahmoud decision exacerbates the growing chasm between the court’s treatment of the First Amendment’s twin religion clauses, the free exercise clause and the establishment clause. They are meant to go hand in hand: Free exercise protects a private realm of conscience by preventing the state from compelling religious practice or belief, while nonestablishment protects both church and state by ensuring that the public realm is as free as possible from sectarian capture. Yet under the current court, protection of religious exercise has blossomed while protection against religious establishments has dwindled almost to the point of vanishing.
Thus, the majority in Mahmoud contends that storybooks like Uncle Bobby’s Wedding abridge free exercise by exerting a “coercive pressure” that undermines the plaintiffs’ ability to raise their children as they wish. But in the 2022 case Kennedy v. Bremerton School District, the court treated a high school football coach as a private citizen when he prayed with players at midfield, brushing aside any establishment concerns by blithely asserting that “offense does not equate to coercion.” Indeed, in a 2019 case rejecting an establishment clause challenge to a giant cross maintained on public land, Justice Neil Gorsuch wrote a concurrence rejecting decades of precedent and arguing that people who are offended by public religious displays shouldn’t even have standing to sue.
But the third and most revealing problem with Mahmoud is how badly it misunderstands the lessons of Wisconsin v. Yoder. For that decision, as the justices came to realize soon after it was issued, was never as straightforward as it had seemed.
Start with the question of whether there was something unique about the Amish that allowed them to prevail. Burger, the chief justice, suggested that there was, going out of his way to note that “the Amish community has been a highly successful social unit within our society” and making clear that modern-day followers of Thoreau couldn’t just skip school and hang out by the pond all day. In the end, wrote Burger, the track record of the Amish in maintaining alternative modes of informal vocational education was a showing “that probably few other religious groups or sects could make.” It is impossible to read Yoder without suspecting that the court is playing favorites among religions—not exactly the hallmark of a viable constitutional principle.
Or consider that the Wisconsin school attendance statute was generally applicable rather than targeted at religion in general or Amish communities in particular. Does such a law really “prohibit the free exercise of religion”? Since as far back as 1879, when the court turned away challenges against anti-bigamy laws brought by members of the Church of Jesus Christ of Latter-day Saints, the standard answer had been no. The liberal Justice William Brennan began to chip away at that settled understanding in a 1963 case awarding unemployment benefits to a member of the Seventh-day Adventist Church whose religious scruples prevented her from taking otherwise available work on Saturdays. Yoder built on that newer precedent in holding that laws substantially burdening religious exercise must be strictly scrutinized by the courts.
But this holding raised yet more questions: What counts as a substantial burden? And what kinds of government interests can justify such a burden? For two decades after Yoder, the court struggled with these questions, handing victory after victory to the government despite the apparently demanding terms of the Yoder standard. The Air Force was allowed to insist that a Jewish officer not wear a yarmulke. The government was allowed to assign a Social Security number to a Native American child named Little Bird of the Snow despite her parents’ insistence that it would rob her spirit. The Forest Service was allowed to authorize logging and road construction in Native American sacred areas.
By 1990, a narrowly divided court had seen enough. In the landmark case Employment Division v. Smith, the court returned to its 1879 position: The Constitution does not license religious practitioners to exempt themselves from neutral, generally applicable rules of conduct. Alfred Smith was a Native American who was denied unemployment benefits after he was fired for ingesting peyote. As Justice Antonin Scalia explained in his majority opinion, even though Smith took the drug as part of a church ritual, he was still subject to the criminal laws of Oregon.
But Scalia first had to reconcile his decision with the court’s holding in Yoder (a ruling he didn’t have the votes to overrule). How he chose to do that has become legendary among constitutional law professors for its lack of persuasiveness. The Amish’s claim against a generally applicable state law could go forward in Yoder, Scalia wrote, because it involved not the free exercise clause alone but that clause “in conjunction with other constitutional protections,” such as parental rights under the due process clause. This hybrid-rights notion makes no sense: If the additional constitutional claim is meritorious, then it can stand on its own; if it is frivolous, then it adds nothing to the free exercise claim. Even Alito, in last week’s Mahmoud opinion, seems embarrassed by the hybrid-rights idea, relegating it to a footnote.
As I have noted before, Smith has long been anathema for judicial conservatives. And, sure enough, the court in Mahmoud barely even discusses Smith. (Just as the court gave the seminal Chevron case the Voldemort treatment for a decade before finally overruling it, Smith is now on track to become the Case That Shall Not Be Named.) Instead, the court elevates Yoder—which Scalia treated as a speed bump scarcely worth maneuvering around—to the status of a governing precedent.
“The burden imposed here,” writes Alito, “is of the exact same character as that in Yoder.” That sentence is a tour de force of motivated reasoning. Rightly or wrongly decided, Yoder fit the mission statement that guided the court throughout the middle of the 20th century: The Amish deserved judicial solicitude because they were literally a “discrete and insular minority.” Does a group of suburban parents who object to a few books about LGBTQ+ topics merit the same protection? Only if we start treating public education not as a pluralistic endeavor but as an à la carte menu from which religious parents can choose only the dishes that suit their tastes.
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