A few days ago, I asked if the moment for overruling Smith had passed. At the time, I had not yet read Mahmoud. (I am still making my way through the opinions.) Now, having read Mahmoud, I see a Court that is desperately trying to stay away from resolving the validity of Smith.
Let me lay out some salient facts from Mahmoud. The government initially allowed parents to opt-out their children from being exposed to certain books. However, that opt-out was later removed. And, as Justice Alito observed, "[t]he Board member went on to suggest that the religious parents were comparable to 'white supremacists' who want to prevent their children from learning about civil rights and 'xenophobes' who object to 'stories about immigrant families.'" Yet, the school permits other types of opt-outs for non-religious reasons.
Based on the Court's precedents, I could see two possible ways to avoid Smith. First, the Court could follow Masterpiece Cakeshop, and find that the statements from the board member were impermissible animus against religious parents. This policy would not be neutral towards religion. That finding would trigger heightened scrutiny under the rubric from Church of the Lukumi. Then again, Justice Sotomayor suggests in Footnote 15 that the Board Member was not actually expressing hostility towards religion, so that argument may not have worked.
