Writing
separately
in
the
transgender
care
case,
Sam
Alito
injected
the
weird
non-sequitur
that
“[t]he
Court
has
also
suggested
that
religion
is
a
suspect
class.”
It
turns
out
that
was
a
preview
of
coming
attractions,
with
Alito
writing
the
majority
in
Mahmoud
v.
Taylor,
officially
ramming
strict
scrutiny
into
every
situation
where
the
most
cloistered
parent
in
your
school
district
gets
hot
and
bothered
that
serving
Dino
Nuggets
intrudes
upon
their
religious
belief
that
the
Earth
is
6,000
years
old.
Technically,
the
Court’s
conservative
majority
ruled
for
parents
objecting
to
a
handful
of
books
in
Montgomery
County’s
elementary
curriculum
that
dared
to
suggest
LGBTQ+
people
both
(a)
exist
and
(b)
might
not
be
monsters.
No
one
really
expected
this
Supreme
Court
to
bypass
an
opportunity
to
memorialize
anti-gay
bigotry
into
the
federal
reporter.
But
there
was
an
opportunity
for
the
Court
to
say
the
schools
have
no
rational
basis
to
deny
parents
an
option
to
keep
their
kids
walled
off
from
books
with
gay
characters.
It
would
be
a
stretch,
but
the
current
majority
is
nothing
if
not
creative.
The
parents
in
this
case
could
get
the
relief
they
—
ostensibly
—
sought
and
the
public
education
system
would
muddle
forward.
Instead,
the
majority
offered
Alito
a
chance
to
upend
the
whole
public
education
system,
extending
strict
scrutiny
to
every
parental
complaint
based
in
religion.
A
government
burdens
the
religious
exercise
of
parents
when
it
requires
them
to
submit
their
children
to
instruction
that
poses
“a
very
real
threat
of
undermining”
the
religious
beliefs
and
practices
that
the
parents
wish
to
instill.
Historically,
this
sort
of
protection
applied
to
cases
where
the
state
tried
to
compel
Amish
parents
to
send
their
kids
to
school
and
not
micromanaging
curriculum.
Alito
handwaves
this
away
with
a
rousing
rendition
of
dictionary
dissembling,
“The
primary
definition
of
‘coercion’
is
little
different
from
compulsion.
See
Webster’s
Third
New
International
Dictionary
439
(1971)
(‘use
of
physical
or
moral
force
to
compel
to
act
or
assent’);
Random
House
Webster’s
Unabridged
Dictionary
398
(2d
ed.
2001)
(‘use
of
force
or
intimidation
to
obtain
compliance’).”
Alito
is
absolutely
the
asshole
who
thinks
wedding
toasts
should
begin
with
a
dictionary
definition.
It’s
also
hard
to
understand
Alito’s
deep
concern
about
religious
coercion
when
he’s
been
right
there
to
constitutionally
bless
students
being
forced
to
pray
in
school.
The
problem,
as
Justice
Sotomayor
notes
in
dissent,
is
“[i]f
that
is
sufficient
to
trigger
strict
scrutiny,
then
little
is
not.”
The
flaws
in
the
majority’s
reasoning
are
legion.
The
Court’s
reading
of
Yoder
is
not
simply
incorrect;
it
is
definitively
foreclosed
by
precedent.
The
majority’s
novel
test,
moreover,
imposes
no
meaningful
limits
on
the
types
of
school
decisions
subject
to
strict
scrutiny,
as
the
Court’s
own
application
of
its
test
confirms.
Today’s
ruling
thus
promises
to
wreak
havoc
on
our
Nation’s
public
schools
and
the
courts
tasked
with
resolving
this
new
font
of
litigation.
There’s
really
nothing
in
this
opinion
limiting
some
neo-Bob
Jones
University
types
from
demanding
public
schools
stop
talking
about
interracial
marriage
on
religious
grounds.
Or
evolution.
Or
climate
change.
Or
women
wearing
pants,
for
that
matter.
In
an
environment
where
conservative
political
viewpoints
are
increasingly
bolted
onto
religion
—
with
prosperity
Gospel
churches
out
there
stirring
tax
policy
and
an
unswerving
belief
that
Democrats
worship
Satan
into
scripture
—
it’s
hard
to
imagine
where
the
line
gets
drawn.
And
it
doesn’t
end
with
opt-outs.
Worse
yet,
the
majority
closes
its
eyes
to
the
inevitable
chilling
effects
of
its
ruling.
Many
school
districts,
and
particularly
the
most
resource
strapped,
cannot
afford
to
engage
in
costly
litigation
over
opt-out
rights
or
to
divert
resources
to
tracking
and
managing
student
absences.
Schools
may
instead
censor
their
curricula,
stripping
material
that
risks
generating
religious
objections.
The
Court’s
ruling,
in
effect,
thus
hands
a
subset
of
parents
the
right
to
veto
curricular
choices
long
left
to
locally
elected
school
boards.
Because
I
cannot
countenance
the
Court’s
contortion
of
our
precedent
and
the
untold
harms
that
will
follow,
I
dissent.
Put
aside
the
chilling…
we’re
just
starting
the
countdown
to
a
parent
rolling
in
claiming
the
constant
opt-outs
from
5th
grade
life
sciences
are
discriminatory
and
the
only
solution
is
for
the
school
to
purge
the
curriculum
for
all
students.
Joe
Patrice is
a
senior
editor
at
Above
the
Law
and
co-host
of
Thinking
Like
A
Lawyer.
Feel
free
to email
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Follow
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