During oral arguments for 'Mahmoud v. Taylor', Supreme Court Justice Elena Kagan questioned an attorney about different levels of material shown in children's books.
Category
🗞
NewsTranscript
00:01Mrs. Kagan?
00:02I want to take you back to some of the questions that Justice Alito was asking, because I too
00:07was struck by, these are young kids, picture books, and on matters concerning sexuality.
00:16I suspect there are a lot of non-religious parents who weren't all that thrilled about
00:20this.
00:21You know, add in religion, and that's, you know, even more serious.
00:31But I guess I'm searching for what in your legal arguments would allow us to draw lines
00:40in this area.
00:41And I'm kind of not finding it from what you were saying to me in our earlier, or what
00:49you said to Justice Alito.
00:51Because when Justice Alito said, how about that 17-year-old?
00:55You said, well, many parents' objections would decrease.
00:58But that still indicates that if a parent said, no, even with respect to that 17-year-old,
01:05I still care about this.
01:06I want an opt-out.
01:08You're not giving anything that would allow lines to be drawn.
01:14And I'm just curious if you think lines can be drawn, and where they would be drawn.
01:19And on the basis of what First Amendment doctrine, they would be drawn.
01:22We think there are lines that can be drawn.
01:24They're the same lines that this court has drawn in every other free exercise case.
01:28And the burden, a plaintiff has to show that its beliefs are religious, that they are sincere.
01:34There has to be a substantial infringement, or burden, or pressure.
01:39And then on the strict scrutiny side, there are also...
01:40But I'm hearing you saying that the burden that you are saying, and of course we're just
01:46assuming that all these people have sincere religious beliefs.
01:50Let's just assume that.
01:53But what I'm hearing you saying is the burden is basically up to the parent to decide, this
01:59conflicts with my religious beliefs.
02:01I want an opt-out.
02:02Is that correct?
02:03Yes.
02:04And on the Sherbert side, under strict scrutiny, they would have to first show that there
02:07is a law that's not neutral or generally applicable.
02:10So there's a limit there.
02:11And on the Yoder side, if this court didn't want to go all the way to address the issues that
02:15aren't present in this case, it could rely on the uniquely coercive environment of the
02:20schools.
02:21And now putting those kinds of issues on the burden side...
02:23Okay, so those still, it's like just pretty...
02:26I mean, I'm really searching for something, and I know that you realize that, and you're
02:32still not giving me anything other than if it's in a school and a sincere religious parent
02:39has an objection, that objection is always going to result in an opt-out.
02:45That's of course...
02:46No matter how, no matter what the instruction is like, no matter what the materials are,
02:51no matter how old the kids are.
02:54And that's the rule that schools everywhere in the country are working under right now,
02:58by their own choice.
03:00That was Montgomery County's own rule before this lawsuit came in.
03:03And there were never these kinds of problems until it really introduced a curriculum that was
03:08clearly indoctrinating students, and things that the principal said was introducing things
03:12as fact that aren't fact.
03:13Yeah, but once we articulate a rule like that, you're going to have a lot of appearance,
03:19it seems to me.
03:20I don't think you can say just because it hasn't happened.
03:22Once we say something like what you are asking us to say, it will be like, you know, opt-outs
03:27for everyone.
03:28Well, certainly the government always wants to put these things on the burn side instead
03:32of the strict scrutiny side.
03:33We heard these arguments in Hobby Lobby, where there was a lot of concerns about what would
03:36happen in Ocentra, what would happen with drugs.
03:38And in reality, we didn't see those kinds of floods happen.
03:42And when they have, the courts have managed to deal with them without any significant difficulty.
03:48Justice Gorsuch.