Amy Coney Barrett Presses Attorney About ‘Burden’ LGBTQ+ Books In Schools Place On Children

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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.

Transcript

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.

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