Recent Supreme Court decisions have left the Free Exercise clause in fundamental conflict with the rights of LGBTQ+ individuals. The Court\u2019s 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 \u201cstructural preferentialism,\u201d where religion must be granted the same benefits as secular entities while also being given \u201cspecial treatment\u201d through exemptions. This regime has consistently \u201cshown favoritism to religion over nonreligion,\u201d disregarding the importance of policies to protect the equality of the LGBTQ+ community. As such, the Court has \u201csubordinated\u201d 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 \u201csurprise discrimination.\u201d<\/p>\n
This Note seeks to contribute to pre-existing scholarship on the Roberts Court\u2019s 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\u2019s strict scrutiny approach and Smith\u2019s 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\u2019s 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.<\/p>\n