Justice Amy Coney Barrett questions attorneys during Oral Arguments for Mahmoud v. Taylor, a case involving LGBTQ+ books in schools.
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00:00Ms. Sparrett. Ms. Harris, so there's a lot of concern about line drawing and what this would mean, and maybe some of that would be handled under strict scrutiny or under Smith. I mean, it's not saying that anybody wins or loses if we're just talking about initial steps. But to the point of line drawing, is there a way? Let's imagine that the court decided that there was a burden here, that a free exercise right was triggered, that the government thinks we should be careful about to not implicate other things.
00:27I'm thinking about what if a teacher was transgender and the student was very respectful to the teacher but didn't want to use the pronouns and the parents didn't want the child to use the pronouns, let's say, you know, call the teacher Mr. when she was transgender, when the teacher was transgender. Same for a student in the classroom.
00:48You know, those might present different issues that would be more difficult. So is there something that the government has in mind that would be some limiting principle?
00:59Yes. So just to take the limiting principle first and then your pronoun hypothetical second. With respect to the limiting principle on what a burden is, I think it's almost, this is the easy case because you have parents' religious obligations and the obligations encompass being exposed to material and it's just an outright prohibition.
01:15But I think Professor Gargis' article is actually a very good guide to different kinds of burdens that might arise in this context or others that wouldn't qualify.
01:23So take the hypothetical of parents want to opt out from school for a month to take their kids on a religious pilgrimage.
01:30If your faith is indifferent to doing so in September versus during, like, spring break or summer recess, you don't have a burden on your religious exercise because you have equally available alternative means of doing your religious exercise
01:41exercise that don't require the opt-out and don't require, don't really put you to the choice that we're talking about.
01:47So when you're thinking about things that aren't sort of the prohibition on exposure things, I think there are real teeth in this doctrine and there's a lot of hypotheticals that you can think of in the school context that would implicate that.
01:57With respect to your pronouns hypothetical, I actually think that's a case that raises even more concerns in the sense that you also have, and this is what the court of appeals cases bear out,
02:06compelled speech, potential compelled speech concerns with respect to you are requiring everyone else in the classroom.
02:13First of all, free exercise issues, but also compelled speech issues to refer to a particular person by pronouns.
02:19That's how the cases are kind of getting litigated out in the lower courts right now.