New Podcast Episode: Didactic and Inculcatory
Dan and I discuss the children cases -- Mahmoud and Free Speech Coalition.
The latest episode of Divided Argument, Didactic and Inculcatory, is now up:
We look at the final orders list before summer break, and then continue to work through last month's opinions, this time with an extended analysis of two decisions about children and culture wars -- Mahmoud v. Taylor (religious objections to LGBTQ+-inclusive books) and Free Speech Coalition v. Paxton (age verification for accessing online pornography).
Comment below!
Your discussion of how Mahmoud plays out in future cases was very thought provoking, especially the issue of how a school might be required to provide opt outs for unusual religious beliefs about seemingly non controversial subjects like math (taking up your hypo of the person with idiosyncratic views about addition).
In the Court's prior gay rights cases (Romer, Lawrence, etc.) the issue of animus has been cited in finding the various statutes unconstitutional. But it also figured into the Court's decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission. There the animus against Jack Phillips' beliefs-evidenced by the commission members' toxic rhetoric-was key to the Court's resolution of the case.
Mahmoud does not use the term animus, but the majority discusses the school board members' negative reactions to the objecting parents. See pages 8-9 of the slip opinion. The opinion also cites the language in Obergefell acknowledging honorable disagreement with same sex marriage. The clear implication is that whatever promise the Obergefell majority made about acknowledging the legitimacy of differing views on same sex marriage is not being honored by the Montgomery Co School Board.
Do you think Mahmoud is likely going to be limited to cases where there is evidence of a nontraditional subject being taught because of an underlying animus for religiously motivated beliefs? If true, that would limit the possibility of Mahmoud to be used to require public schools to create individualized courses of instruction. It would, for example, be very hard to see how teaching a traditional subject like math could ever be evidence of animus.
Thanks for your work on the podcast. It is a real public service.
Wait ... Chicago is enforcing Kalven to prohibit the display of a "Black Lives Matter" banner?!
The school has to remain agnostic on whether Black lives do or do not matter? Isn't this the sort of reductio ad absurdum that Dan was wondering about?