How Strict?

To the Editors:

David Cole’s generally excellent article “Umpires No More” [NYR, August 21] is flawed only in its treatment of Mahmoud v. Taylor (2025), which held that schools in Maryland’s Montgomery County must, in Cole’s words, “provide notice to parents whenever their lessons might include any material that any religious adherent might find offensive and accommodate any objecting parent by allowing their child to opt out of the lesson.” The lessons in this case were for small children and concerned members of the LGBTQ community. Cole rejects the Supreme Court’s reasoning because “the Court adjusted the standard of review to reach a desired result [as in other cases reviewed in the article], this time applying a more demanding test than precedent called for.”

The problem is that the precedent on which Cole relies, Employment Division v. Smith (1990), exemplifies exactly the same problem: adjusting the standard of review to arrive at a desired result. Justice Scalia’s majority opinion in Smith is that free exercise cases should generally be judged by the lowest standard, a rational basis review, when restrictions of free exercise are consequent upon a general law that is not aimed at religious views or observance. Before Smith, however, the “more demanding test” about which Cole complains was applied in cases of free exercise, just as it was in Mahmoud.

Justice Alito has argued that plain language, history, and precedent all favor the view that limitations of free exercise must be justified by a higher standard. The very inclusion of a guarantee of free exercise in the First Amendment implies that it is among our fundamental rights, like free speech, which can be abrogated only if a more exacting standard is met. What’s more, the Founding Generation allowed members of the so-called peace churches exemption from military service even though a militia was considered essential to the security of a state. Such deference to religion directly contradicts Smith.

Scalia justifies eliminating special deference to religious beliefs by quoting a 1940 Supreme Court opinion that disallowed exemptions on religious grounds from a state requirement to say the Pledge of Allegiance. Justice Frankfurter concluded that allowing opt-outs would “permit every citizen to become a law unto himself.” But that precedent was overturned 6–3 only three years later. Nevertheless, Scalia quotes it in Smith as if it was an available precedent, and Cole quotes Scalia as if Scalia’s errant view is controlling.

Wisconsin v. Yoder (1972) presents the greatest challenge to Scalia adjusting the legal standard downward regarding the free exercise right. The Court allowed Amish families an exemption from Wisconsin’s compulsory education law that required school attendance to age sixteen. The Amish wanted to end their children’s formal education at age fourteen to avoid their children’s exposure to ideals and ways of life that conflict with the Amish religion. Scalia claimed, against the explicit statements in Chief Justice Burger’s majority opinion, that the Amish were exempt because two constitutional rights were involved: the right of parents to guide their children’s development and the right to free exercise of religion. But Burger actually insisted that only the right to free exercise determined the result. Parental rights played no part.

Yoder allows parents to reduce their children’s exposure to values at odds with their religious beliefs. A very high standard of review is needed to abrogate this right, and it is exactly the same right that was successfully claimed in Mahmoud, which therefore contains no change of standard to achieve a desired result.

The Smith ruling was negated in federal law by the Religious Freedom Restoration Act (RFRA), which requires a compelling government interest achieved through the least restrictive means to justify curtailing the free exercise of religion. Most states have their own RFRAs or state constitutions that have been interpreted to impose the same requirement. Because Maryland is not among these states, the majority in Mahmoud elected to ignore Smith even though it has not yet been overturned. The fact remains, however, that it is Smith, not Mahmoud, that represents a deviation from an established standard of review to achieve a desired result. Mahmoud simply uses the widely accepted standard from which the Court erroneously deviated in Smith.

Peter Wenz
University of Illinois Springfield

Professor Wenz is correct that Justice Scalia revised the test for assessing free exercise claims in Smith v. Employment Division, holding that neutral laws of general applicability do not require careful scrutiny merely because they have an incidental effect on someone’s asserted religious belief or practice. The Supreme Court can, of course, change the law; it does so frequently. But when it does, it should have a good reason, and reaching a particular desired result in a specific case is not a good reason. The justification must be more general: namely, that the revised doctrine makes better sense of the constitutional values at issue. Scalia’s decision in Smith satisfied that requirement; Justice Alito’s opinion in Mahmoud v. Taylor does not.

In Smith, the Court ruled that the mere fact that a general prohibition on using peyote interfered with a particular Native American religious ritual was not sufficient to require “strict scrutiny.” Justice Scalia reasoned that when a law singles out or targets religion, it certainly “prohibits” the free exercise of religion. But when the legislature passes a neutral law having nothing to do with religion, the fact that a particular religious adherent objects cannot be sufficient to call the law into serious question. The reason is simple. There is literally no limit to what people can believe as a religious matter, and courts are unable to question the validity or coherence of individual religious beliefs, as they are matters of personal faith and need not satisfy any test of rationality. One person might believe in the transubstantiation of the Eucharistic host and wine into the body and blood of Jesus Christ; another that paying taxes violates God’s command; another that Black or LGBTQ people do not deserve equal treatment. As long as a religious belief is sincerely held, the Court must respect it as a religious belief.

As a result, to require every law that has some indirect effect on someone’s religious belief or practice to satisfy “strict scrutiny” would make “every man a law unto himself,” Scalia reasoned. There would be literally no limit to the religious objections that could be raised to laws, and courts would be required to review entirely neutral laws having nothing to do with religion (like the ban on peyote use in Smith) if anyone asserted an objection he characterized as religious. The Framers who banned laws “prohibiting” the free exercise of religion cannot have understood every law enacted by a legislature to require strict judicial review anytime anyone raised a religious objection.

It’s true that the Court had in several prior cases applied “strict scrutiny” to laws that only indirectly interfered with religion, and that it had announced a standard requiring strict scrutiny if any law imposed a substantial burden on religion. But in fact that standard was “strict” in name only, and the vast majority of laws challenged under it survived review—suggesting that the review was in fact not strict at all. Scalia’s opinion rationalized the doctrine.

Today’s Court has toyed with overruling Smith, but as Justice Barrett has noted, the difficulty is determining what to replace it with. A strict scrutiny standard would be unworkable, for the reasons Scalia explained, and would inevitably be watered down, as happened before.

But the big difference between Smith and Mahmoud is that Smith was addressed not to achieving a particular result in a specific case but to setting out a general standard that would apply across the board. Mahmoud ignored that standard in a case where it would require a result the conservatives disfavored, but the Court offered no good reason for failing to apply the general approach to the school’s religion-neutral reading list. It sought to shoehorn the case into the precedent involving Amish teens upon which Professor Wenz also relies. But there is a world of difference between requiring the Amish, on pain of criminal punishment, to send their teenage children to school when their religion calls for homeschooling at no cost or burden to the state and the Maryland school board practice, which simply provided that if you choose to send your children to public school (rather than home school or private school), you don’t get to micromanage the books their teachers read from in class.