I'm delighted to be able to pass along this analysis from Profs. Michael McConnell, Douglas Laycock, Stephanie Barclay, and Mark Storslee. (McConnell and Laycock are quite likely the two most prominent Religion Clauses scholars in the nation; they and Barclay were also cited repeatedly in Justice Alito's concurrence in Fulton v. City of Philadelphia (2021).) The Court is poised to overrule Employment Division v. Smith, and return to the Sherbert/Yoder regime, under which religious objectors have a presumptive constitutional right to exemptions from generally applicable laws. It's therefore tremendously important to figure out what the rules are for when that presumption is rebutted; their reasoning speaks directly to that question:
With opening briefs filed this week in Mahmoud v. Taylor, the Supreme Court will have another opportunity to consider the appropriate constitutional standard for evaluating free exercise claims under the First Amendment. In Mahmoud, the Court will decide whether public schools may compel students to participate in instruction on gender and sexuality that violates their parents' religious convictions.
Some scholars and several prominent appellate court judges have recently argued that the Supreme Court should abandon strict scrutiny and Bruen-ize the First Amendment—i.e., incorporate the Second Amendment constitutional doctrine from New York State Rifle & Pistol Ass'n v. Bruen into various parts of the First Amendment (though these arguments have largely related to the First Amendment's speech protections).
Although we differ in some ways with respect our approach to constitutional interpretation, we all broadly support looking to the history surrounding ratification as a primary method of developing constitutional doctrines. But we have serious concerns about the Court adopting a Bruen-type historical analogue approach in the free exercise context. In our view, doing so would create a test that would be unworkable, theoretically dubious, and—ironically—inconsistent with the best historical understanding of the meaning of the Free Exercise Clause.
