Recent Supreme Court decisions have left the Free Exercise clause in fundamental conflict with the rights of LGBTQ+ individuals. The Court’s foundational decision in Employment Division v. Smith created an equality-focused framework designed to protect against the degradation of other constitutional rights in the name of religion. However, as the Court has become more open to requiring exemptions from nondiscrimination policies for religious plaintiffs under the First Amendment, they have instituted a regime of “structural preferentialism,” where religion must be granted the same benefits as secular entities while also being given “special treatment” through exemptions. This regime has consistently “shown favoritism to religion over nonreligion,” disregarding the importance of policies to protect the equality of the LGBTQ+ community. As such, the Court has “subordinated” rights of the LGBTQ+ community to the religious rights of others by reading the Free Exercise clause to require exemptions from LGBTQ+-nondiscrimination policies. This, in turn, legitimizes a system of marginal equality that subjects the queer community to constant “surprise discrimination.”

This Note seeks to contribute to pre-existing scholarship on the Roberts Court’s application of the Free Exercise clause to deteriorate LGBTQ+ protections by discussing the analytical fallacies in Mahmoud v. Taylor. It argues that the Court in Mahmoud, which examined whether the Free Exercise clause required parents to be able to opt their children out of an LGBTQ+-inclusive curriculum, created a new hybrid rights test for Free Exercise exemption claims. Part I will discuss the pre-existing Free Exercise doctrinal framework, focusing on Yoder’s strict scrutiny approach and Smith’s rational basis test before discussing the current trend of Free Exercise exemption cases being used to undermine LGBTQ+ rights. Part II will review how the Court applied this doctrine in Mahmoud, why the Court’s application of the Free Exercise doctrine (or lack thereof) should not have led to strict scrutiny, and why the outcome of the Mahmoud analysis was incorrect even if strict scrutiny did apply. Finally, the Note concludes that the analytical framework announced in Mahmoud strengthens the Free Exercise clause in a way that undermines policies designed to promote unity and protect against stigmatization. Ultimately, the consequences of the regime fundamentally alter the landscape of public schools.

Keep Reading The New Frontier of Free Exercise in Mahmoud v. Taylor: Religious Exemptions from Tolerance in the Classroom