FFRF law student essay contest 2026 — 2nd place: Zoe Schacht
By Zoe Schacht
In the public school setting, the principle of “parental rights” has evolved from being a quasi-no-exemption rule to a preferentially treated “veto power.” This expanded understanding of the parental right to object to public school curricular or educational requirements on religious grounds creates potential tension with other constitutional or societal interests, such as the assertion of parental rights in nontraditional and progressive settings, the right to free exercise by non-conservative religious believers, and LGBTQ+ rights, generally. In future cases, the United States Supreme Court is unlikely to have a universal approach in navigating these competing interests. While it is unlikely to do so, the court should give this new “veto power” a leg to stand on and protect the parental right to raise children with the “beliefs and practices [they] wish to instill,” even when those beliefs and practices diverge from traditional, conservative values.
In the summer of 2025, when the court handed down its decision in Mahmoud v. Taylor, the principle of parental rights was substantially recharacterized for the first time since the landmark case, Wisconsin v. Yoder. Before Mahmoud, the court’s “constitutional canon” on parental rights was concise, consisting primarily of three cases: Pierce v. Society of Sisters, Meyer v. Nebraska, and Yoder. Unlike the earlier two cases, Yoder added that if there is a religious motive to the parental rights at issue, strict scrutiny is applied to the claimed state interference. Following Yoder, courts generally looked to a case that came out of the 6th U.S. Circuit Court of Appeals, Mozert v. Hawkins County Board of Education. Mozert created a quasi-no-exemption rule — so long as children are not compelled to affirm or deny any religious beliefs, exposure to content objected to by parents on religious grounds does not burden their constitutional freedom to exercise religion. After denying certiorari, it seemed that the court agreed with 6th Circuit’s decision to not apply Yoder in Mozert to resolve the issue of whether there was a parental right to object to school curriculum on religious grounds.
In many ways, Mahmoud revived Yoder, which has been viewed as a rarely applicable, dormant decision or sui generis. The Mahmoud opinion, written by Justice Samuel Alito, expressly rejects this characterization of Yoder’s reach. Instead of applying the long understood parental rights principles expressed in Mozert, Alito looked to Yoder. Alito breathed life into Yoder, presenting a new reading of its holding. In doing so, he overlooked how courts — and the Supreme Court itself — had long interpreted Yoder.
After Mahmoud, when determining whether the government impeded on parental rights, the question is whether there is a presence of “‘a very real threat of undermining’ the religious beliefs and practices that parents wish to instill.” By finding that Yoder is “[un]confined” to the special circumstances of the Amish, the Mahmoud majority’s expansion of parental rights presents in two ways: (1) a lower threshold to trigger strict scrutiny and (2) an express elimination of the exception to religiously motivated government actions that are neutral and generally applicable.
For courts to determine whether “a very real threat” to parental rights is present, Mahmoud prescribed several factors. In applying the “threat” test, courts are instructed to look to the specific nature of the parent’s asserted religious beliefs, the nature of the curricular or educational requirement, the child’s age, the context in which the materials are presented, and whether they are presented in a way that is “‘hostile’ to religious viewpoints and designed to impose upon students a ‘pressure to conform.’”
Though this standard appears to closely align with Mozert and Yoder, it differs in application. Rather than requiring a showing of compulsion, a child’s exposure to objectionable ideas or viewpoints is enough for a court to find “a very real threat.” Though the Mahmoud majority expressly rejected the notion that “mere exposure” is enough under the “threat” test, looking at the court’s findings shows that exposure is the necessary showing. As Justice Sonia Sotomayor argues in her dissenting opinion, this new standard is the “clearest” version of “mere exposure to objectionable ideas.” Before Mahmoud, neutral and generally applicable government actions which conflicted with the First Amendment’s protection of free exercise were generally constitutionally permissible. As a recognized “hybrid rights” case, Yoder was read to be an exception to the neutral and general applicability exemption. Mahmoud, however, expressly rejected this characterization of Yoder. Further delineating from Mozert as the template for decisions on similar claims, the court explained that if a burden on parental rights is akin to the burden in Yoder, whether the law is neutral or generally applicable is now irrelevant. Yoder has not historically extended to claims of such nature. Moreover, Mahmoud’s rejection of Yoder as a “hybrid rights” case is in direct conflict with the Yoder opinion which specifically identified the additional non-free exercise claim at stake.
Further, finding in Mahmoud that the burden on parental rights equated to that in Yoder, was a result of differing analyses — with Yoder utilizing the affirmative compulsion inquiry and Mahmoud the lower threshold “threat” test. Therefore, the Mahmoud expansion of parental rights not only discards the hybrid rights standard for exemption, but it weakens the level of harm necessary for government action to be subjected to strict scrutiny. Now, a showing of mere exposure to an objectionable idea is enough, regardless of whether the government action at issue is neutral and generally applicable.
Mahmoud fundamentally changed the judicial balancing of parental rights with the public education system’s authority to decide curriculum on nonreligious grounds. Parents now hold a “veto power” over public school curriculum which Yoder — itself — recognized belongs to school boards and legislatures. Despite Alito claiming that parental rights inquiries “will always be fact-intensive,” the extent of this parental “veto power” is unlikely to be all encompassing, only applying to parental objections to nontraditional, progressive curriculum. This expansion of parental rights is indicative of the Roberts Court’s growing protection of objection — giving preferential treatment to conservative religious believers in decisions that simultaneously diminish LGBTQ+ rights. Mahmoud has proven to be no exception to this trend and is best understood as promoting a liberty of conscience theory. Reading Mahmoud under this theoretical framework, it is evidently protective of parental rights that are conveyed as an objection to nontraditional and progressive ideas or actions. Mahmoud’s application stops there. In future cases involving an assertion of parental rights to maintain or assert nontraditional and progressive ideas or actions, the court is unlikely to apply Mahmoud.
Comparing Mahmoud and Kennedy v. Bremerton School District, the Supreme Court’s preferential protection of traditional and conservative conscientious parental liberties could not be clearer. Unlike Mahmoud, where nonreligious curriculum was at stake, in Kennedy the court addressed the issue of whether a high school football coach, praying in front of students, amounts to religious coercion. Applying the Mahmoud “threat” test to Kennedy should surmount to an automatic trigger of strict scrutiny and a finding that parental rights were impeded on. Yet the outcome could not be more distinct. In Mahmoud, the majority relied on the premise that young children “are often ‘impressionable’ and ‘implicitly trust’ their teachers.” Yet, in Kennedy, this argument was rejected. Ultimately, the Kennedy court found that the coach’s visible prayer was within his freedom of exercise rights and that the student’s exposure to the prayer did not amount to religious coercion, rather it was incidental and should be tolerated. Further demonstrating the court’s special solicitude for conservative religious believers, Kennedy overlooked other religions within the community and the objections of those groups, consequently treating the football coach like a religious minority in need of protection.
Decided only nine days before Mahmoud, United States v. Skrmetti further demonstrates the indisputable reality that the Supreme Court gives preferential treatment to certain parental rights. Though Skrmetti was decided on equal protection grounds, the opinion is still relevant to the court’s application of parental rights doctrine. Skrmetti upheld a Tennessee law which prohibits medical providers from giving gender-affirming care to transgender minors. Skrmetti did not protect the parental rights of individuals who wanted to protect their transgender children’s gender-affirming medical care. Moreover, unlike the nearly automatic application of strict scrutiny in Mahmoud, Skrmetti subjected the Tennessee law to rational basis review. Alito’s concurring opinion in Skrmetti may shine light on why Mahmoud expanded parental rights, but Skrmetti overlooked them entirely. Yet, the conscientious liberty at stake in the two cases is telling.
The subjective nature of the Supreme Court’s application of parental rights and its inconsistent findings of coercion shows the court’s growing protection of religious objectors. Mahmoud aligns with such other cases where the court has held that these objectors need not comply with laws that burden conduct linked to their religious identities. Thus, future cases that the Supreme Court hears relating to gender rights, the implication of religious objection, and parental rights will vary in outcomes. Ultimately, the court’s decisions will rest on who is objecting, whose exercise of religion is burdened, and whether the burdening conduct is nontraditional and progressive.
Zoe Schacht attends Brooklyn Law School. “I am in my final year of law school and following graduation, will be working in the municipal civil litigation setting,” Zoe writes. “The First Amendment has been a lodestar for me and I plan to continue learning its principles and thinking expansively about its doctrine. In my free time I enjoy reading, doing yoga and cooking.”
