Abstract 

Mahmoud v. Taylor marks a significant erosion of Employment Division v. Smith and signals a doctrinal shift toward revitalized, pre-Smith Free Exercise protections. By relying on Wisconsin v. Yoder rather than Smith, the Court reframed parental rights as integral to religious exercise and grounded strict scrutiny in the “character” of the burden imposed, rather than in neutrality or general applicability. In doing so, Mahmoud effectively sidesteps Smith’s hybrid-rights framework and revives a fact-intensive, burden-centered inquiry reminiscent of Sherbert and Yoder. This results in a growing body of Free Exercise doctrine that preserves Smith in name while undermining its practical force. Mahmoud thus represents a decisive move toward more accommodationist constitutional protections for religious exercise, particularly in cases involving parental authority and education.

1. Introduction

Mahmoud v. Taylor marked a key victory for Free Exercise proponents of the Free Exercise Clause in the Court’s religious freedom battles,upholding the rights of parents to withhold their children from instruction containing LGBTQ+ inclusive storybooks.^[1] Indeed, Mahmoud cements a doctrinal shift towards greater constitutional protection for the Free Exercise Clause. Importantly, the decision’s reliance on Wisconsin v. Yoder over Employment Division v. Smith signals an accommodationist shift for Free Exercise protections. By relying on Yoder’s “unconstitutional burden” approach, where hostility to parents’ religious belief invokes strict scrutiny, Mahmoud undermines Smith’s “hybrid rights” rule, which required that a Free Exercise claim be combined with another constitutionally protected claim.^[2]

Previous analysis has situated Mahmoud in certain trends within the court, such as sympathy for “religious opposition to same-sex intimacy” or parental victories in the tension between parental rights and schools’ rights over the instruction of children.^[3] This essay aims to further this discussion by highlighting the doctrinal implications of sidestepping Smith. I further an analysis of Smith by Crawford, who similarly highlights that the Court did not perform a hybrid-rights analysis and simply identifies their justification, but I seek to probe this question further, expanding on what this move signifies.^[4]By analyzing the notable absence of Smith as a key precedent in Mahmoud’s decision, this essay illuminates the functional erosion of Smith in courts, as previous landmark Free Exercise Clause cases, such as Fulton v. City of Philadelphia and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, hinted at but not quite solidified as Mahmoud does.^[5]

First, I will analyze the application of Yoder in Mahmoud over Smith as a relevant precedent, situating this choice in the trend of the Court’s return to pre-Smith Free Exercise protections. Then, I situate Mahmoud in past Free Exercise applications in Fulton and Masterpiece Cakeshop. Finally, I pose its implications: a return to emphasizing the burden of religion and subsuming parental rights into the Free Exercise protections.

1. The Competing Frameworks of Free Exercise Jurisprudence
   1. Yoder in Mahmoud

In Mahmoud, the parents challenged a school board that prohibited opting out of instruction with LGBTQ+-themed storybooks in elementary schools.^[6] Reversing the fourth circuit’s finding, the Court ruled in favor of the parents, based on two concerns: the content and manner of the instruction itself, as well as withholding opt-out options. First, the Court found that the storybooks present “normative” messages about same-sex marriage and gender identity that directly contradict the religious teachings of the parents.^[7] Combined with a handbook that guided teachers to encourage specific responses reinforcing these normative viewpoints, they ruled that the curriculum created an environment “hostile” to the parents’ religious beliefs as well as a “pressure to conform” to contrary viewpoints for the children.^[8] This presented the kind of “objective danger to the free exercise of religion” that the First Amendment prohibits. Therefore, the school posed an unconstitutional burden on the parents’ religious exercise, warranting a strict scrutiny standard of review.^[9]

In its decision, Mahmoud relied heavily on Yoder, which ruled that schools could not keep children in Amish families in schools past the eighth grade against their parents’ will.^[10] Yoder ruled that, although the state had an interest in universal education, it was not “free from a balancing process” when it may infringe on other fundamental rights, such as the traditional parental interest in children’s religious upbringing and those protected by the Free Exercise Clause.^[11] Katskee framed the subtext of Mahmoud as “how to interpret Yoder. Is it the leading case on free exercise? Or is it limited to its facts?”^[12]

Here, the Court chose the former. Relying on a broader balancing principle rather than the applicability of facts, Mahmoud ruled that schools could not remove an option to opt out of instructions on materials that went against the parents’ religious beliefs.^[13] Scholars disagree on the applicability of Yoder in Mahmoud. Flanders claims “Yoder is neither as narrow as the Fourth Circuit said it was, nor as broad as the Mahmoud plaintiffs want it to be.”^[14] He determined Yoder as applicable beyond its facts as it conveyed principles of parental rights and the interest of the state. Yet, it was not so applicable to Mahmoud, for the facts of the case were significantly different (with Yoder determining whether children can attend school at all and Mahmoud determining the content of the curriculum that the students are introduced to). Katskee argues Mahmoud’s ruling is significantly deviant from past cases, characterizing this decision as a “startling departure from the Supreme Court’s historic pattern of recognizing rights within public schools” and stating that “Yoder simply did not extend to these kinds of parental demands.”^[15]

Katskee’s analysis appears more accurate when analyzing the landmark Free Exercise case, Smith, which reexamined Yoder through a new hybrid rights test. Indeed, the Court’s unprecedented extension of the scope of Yoder’s ruling is even more significant when considering Smith’s decision that reexamined Yoder. 18 years after Yoder, the Court heard Smith, which, in a major defeat for Free Exercise proponents, ruled that a state may incidentally infringe on Free Exercise rights as long as it was through “neutral laws of general applicability.”^[16] With this, they introduced the doctrine of hybrid rights, claiming that neutral, generally applicable law to religiously motivated actions is impermissible not when they involve the Free Exercise Clause alone, but only in conjunction with other constitutional protections.^[17]

With this ruling, Smith rejected Yoder’s balancing scheme.^[18] However, rather than completely overruling past free exercise cases, Smith reframed those cases as those of a “hybrid situation”— in Yoder’s case, combining free exercise rights with parental rights—and posited that this framework was what made it constitutional, rather than a mere balancing of interests.^[19] Through Smith, the court signaled a progression away from a balancing test to a hybrid rights test as the proper test of a Free Exercise infringement. Furthermore, Smith singled out parental rights as one of five rights that could form a hybrid claim.^[20] These cases provided concrete guidance for how hybrid claims should be handled in future cases—exactly like that of Mahmoud.^[21]

However, not only has Mahmoud applied Yoder too broadly, but by doing so, the court sidestepped Smith’s reframing of Yoder. Indeed, the court deliberately refrains from analyzing Yoder through Smith’s reframing and instead analyzes Yoder through a vague analysis of the “character” of the burdens. Explaining why they applied Yoder over Smith, the majority noted the following:

In Smith, the Court speculated that the general rule was not applied in Yoder because it “involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections.” 494 U. S., at 881. We need not consider whether the case before us qualifies as such a “hybrid rights” case. Contra, post, at 35 (SOTOMAYOR, J., dissenting). Rather, it is sufficient to note that the burden imposed here is of the exact same character as that in Yoder. That is enough to conclude that here, as in Yoder, strict scrutiny is appropriate regardless of whether the policy is neutral and generally applicable.”^[22] (emphasis added)

What exactly about the burden in Mahmoud is the “same character” as that in Yoder? To be sure, many factual parallels between them legitimize the application of Yoder in Mahmoud: both involve parental rights over children’s education (specifically in the religious context), and both pit public schools’ interests against those of the parent. However, this claim still leaves many questions unanswered. As Crawford points out, “[A]re all of those elements necessary to invoke the Yoder exception? Would two elements, such as public school plus Free Exercise or public school plus refusal to allow opt-out, suffice? Or would Smith apply in those lesser scenarios? Leaving those questions for another day, here, the Court held that once Yoder applies, then strict scrutiny is the appropriate standard—and the program failed on two prongs.”^[23] Here, the Court renounced a rigorous analysis of the applicability of Yoder’s facts, as Flanders indicated. Rather, they resorted to a broadly defined character analysis that advanced Mahmoud to a strict scrutiny analysis.

2. Previous erosion of Smith: Fulton and Masterpiece Cakeshop

This is not the first time the Court bypassed Smith’s rule of general applicability.  In Fulton and Masterpiece Cakeshop, the court expressed ambiguities regarding Smith’s ruling and its applicability to these cases. Instead, a key case they used was Church of Lukumi Babalu Aye v. Hialeah.^[24] In Masterpiece Cakeshop, the petitionerargued that Colorado’s public accommodation law, which required him to provide custom cakes to gay couples, violated his free speech and Free Exercise protections.^[25] Colorado responded by relying on Smith, stating that the anti-discrimination law was a generally applicable law, so Philips did not enjoy Free Exercise protections, and strict scrutiny would not apply. However, Smith was not used as a controlling precedent in Masterpiece Cakeshop, which explicitly avoided deciding the case under the neutral and generally applicable law framework. Rather, it resolved the case on the narrower ground that Colorado had shown “hostility to religion,” violating the Free Exercise Clause under Lukumi.^[26] However, by ruling that the State violated the First Amendment duty not to use hostility toward religion as a basis for laws, the Court determined that the state did not satisfy “the neutrality required by the Free Exercise Clause” and implied that their ruling was valid under Smith.^[27] Indeed, Laycock comments that “Lukumi made clear that Smith had not repealed the Free Exercise Clause and that the requirements of neutrality and general applicability had enforceable content.”^[28] Still, in their ruling, the Court decided the case on grounds outside of the Smith rule, relying on Lukumi’s religious hostility principle.

Fulton displayed a similar rationale, with the Court going out of its way to avoid applying Smith as a controlling precedent. In Fulton, a Catholic foster care agency challenged a Philadelphia law refusing to renew its contract, as the agency did not certify same-sex couples as foster parents. Here, the Court determined that it fell outside of the scope of Smith because the policies were not neutral and generally applicable.^[29] Instead, the policy invited the government to carve out individual exemptions regarding prohibited conduct based on religious reasons. Therefore, they again fell back to Lukumi’s hostility standard, where the law’s purpose was “the suppression of religion.”^[30] Further, although they were presented with a request to overrule Smith, they declined to officially overrule it. The Court concluded that there was no reason for the Court to decide in this case whether Smith should be overruled, leaving more ambiguity regarding Smith’s standing.

In both cases, the Court determined that because the law was too hostile to religion, relying on Lukumi’s standard, they did not rely on Smith or clarify its scope. A key similarity in both cases is the presence of an implicit targeting of religious groups and beliefs through proxies: in Fulton, by providing a service interpreted as affirming same-sex marriage, and in Masterpiece Cakeshop, by receiving a penalty for their prohibition on same-sex marriage. In Fulton, the complainant was compelled to act against his religious beliefs, and in Masterpiece Cakeshop, was penalized due to a prohibition grounded in their religious beliefs. Under the Court’s reasoning, such use of proxies formed grounds for hostility, even though they did not necessarily or explicitly show discriminatory intent against religion.

However, neither case completely undermined Smith. Rather, by applying Smith through these proxies, Lukumi served to solidify Smith as a constitutionally demanding requirement that, rather than creating a broad no-exemption regime, created a framework that is far less hostile to religious exemptions than it is usually portrayed. Duncan argued that Lukumi meaningfully narrowed what counts as generally applicable under Smith by prohibiting laws that target religious conduct indirectly without explicit mention and includes secular exemptions but denies religious ones.^[31] Because any law with discretionary enforcement could be characterized as not generally applicable, Lukumi restored strict scrutiny without overruling Smith, and even by nominally accepting Smith.^[32] Therefore, post-Lukumi, Smith actually proves not to be as demanding a standard, albeit more demanding than its predecessors.

Thus, Mahmoud’s return to Yoder proves all the more significant. Mahmoud returns to Yoder by conducting a much more delicate balancing act between two grounded rights and interests: the state’s interests in and primary authority over compulsory education, a power reserved by the Tenth Amendment, and parental authority as reserved by the Fourteenth Amendment. Indeed, while not the rights in discussion, these are the competing principles that are at play in Mahmoud. Here, the stakes of the two parties enjoy a much more level constitutional protection than both of the above cases; in Fulton, the state was not entitled to a right to custom services by private individuals, in Masterpiece Cakeshop, the state was not entitled to a right to authority over policies of non-public accommodations.^[33] In  Mahmoud, however, the Court signaled that, even when balancing competing rights, the Free Exercise protections would enjoy priority.

Also, Mahmoud dealt with a decidedly more neutral and generally applicable policy than Fulton and Masterpiece Cakeshop. While Fulton shares significant factual parallels to Mahmoud—individuals were compelled to act in ways that burdened their religious beliefs (in Mahmoud, the parents’)—the burden was greater for Fulton, as they would be compelled to proactively act in a way that affirmed something that went against their religious convictions. The policy triggered an inherently expressive activity. In fact, Fulton made a crucial distinction: while a law could regulate a baker refusing to make cakes celebrating same-sex weddings to anyone requesting, states could not regulate when they refuse to make it specifically for same-sex customers. In so doing, Fulton differentiated between a baker refusing to sell his products based on the identity of the customer versus his religious beliefs. The Court signaled the expressive nature of creating a product or providing a service and the Free Exercise protections enjoyed by such activities. Again, while the Court did not make such an analysis, the logic of hybridized protections is visible here, where First Amendment protections for freedom of expression operate in tandem with free exercise protections.

In contrast, Mahmoud required passive participation in an activity widely considered neutral and universal—a curriculum in a public education system. Such activity was not targeted through a proxy, which could trigger a Lukumi standard. In general, students are expected to participate in prescribed curricula via compulsory education laws. Thus, in Mahmoud, it was not the inherent nature of the activity in question but instead its content: parents sought to repeal an opt-out prohibition from a specific curriculum in compulsory education. While in Fulton, the expressive nature of the petitioner’s activity prohibited the State from regulating the activity under Smith, the exceptions sought by petitioners in Mahmoud lacked this expressive element that would trigger an exception from a generally applicable law. Even with this heightened general applicability, Mahmoud still ruled in favor of the parents, citing hostility as burdening religious practice.

3. The Revival of pre-Smith Framework of Free Exercise Protections

With a more level-balanced balancing of rights and heightened cause for general applicability, Mahmoud distinguishes itself from its Free Exercise precedents. Indeed, Mahmoud represents a significant, though not explicit, revival of pre-Smith Free Exercise doctrine, in two ways: 1) renewed emphasis on the substantiality and character of the burden on religious exercise and 2) the subsuming of parental rights into the Free Exercise Clause itself rather than treating them as separate, hybridized protections. Together, these shifts signal a doctrinal repositioning that strengthens Free Exercise protection without formally overruling Smith.

1. Renewed emphasis on the burden on religious exercise

Evoking Yoder, the majority’s opinion repeatedly stresses the “character” and “substantiality” of the burden imposed on the parents.^[34] Instead of first determining how neutral the government’s actions were, the court independently examines how the action shaped or constrained religious conduct. Under Smith, such burden analysis is largely irrelevant unless the law is non-neutral or non-generally applicable. In Fulton and Masterpiece Cakeshop, we can see the court implying or attempting to abide by this principle by determining that a law was not neutral or generally applicable. However, Mahmoud completely foregoes such analysis, writing that “the character of the burden requires us to proceed differently.”^[35] Here, the burden analysis is decisive: once the Court finds that the character of the burden matches that in Yoder, strict scrutiny automatically applies. Mahmoud represents a final nail in the coffin for the functional erasure of the neutrality test. The threshold question became not neutrality but instead a burden-centered inquiry.

Such a shift allows courts to revisit the pre-Smith “individualized government assessment” in the Sherbert test.^[36] Such a shift is especially prominent in the court’s comments that “the question whether a law “substantially interfer[es] with the religious development of a child will always be fact-intensive.”^[37] The Court does not identify a bright-line rule for when Yoder-style protection applies. Instead, it evaluates the character of the burden through a nuanced, context-dependent inquiry. Because such analysis is not rooted in objective evaluations of the neutrality of government action but rather a case-by-case analysis of the nature of the burden, this approach increases judicial flexibility in favor of religious claimants, much like Sherbert did before Smith. The result is a doctrine in which the claimant’s religious burden—rather than the state’s neutrality—may once again drive the analysis. Without officially declaring Smith dead, the Court has created doctrinal conditions under which Smith may be rendered increasingly irrelevant in cases involving substantial religious burdens.

The most evident beneficiaries of this ruling are religious parents. With this ruling, they will enjoy significantly increased protections. The implications of this ruling on school education go beyond LGBTQ+ curricula. For example, parents who oppose certain forms of sex education, science curricula that present evolution as concrete facts, or exposure to other religious traditions could remove their children on the basis of a religious burden. Indeed, this ruling carves out a protection from passive exposure to “normative” content, a currently underdeveloped term that will allow lower courts much freedom to define as they see fit before future courts modify its meaning. The majority emphasizes a “pressure” to conform as a burdening force on religion, legitimizing exposure in addition to active affirmation as a burden to religious exercise.

2. Subsuming parental rights in the Free Exercise Clause

Secondly, by foregoing Smith’s hybrid rights analysis, Mahmoud integrates parental rights directly into the Free Exercise analysis. Under Smith, parental rights are relevant only insofar as they contribute to form a hybrid claim, which triggers strict scrutiny only when multiple constitutional rights are implicated. However, Mahmoud does not treat parental rights as a separate constitutional interest but rather as an inherent component of the parents’ religious exercise. Parenting, in this analysis, is not a distinct substantive due process right but a manifestation of religious practice. This move collapses the hybrid-rights framework and replaces it with a more holistic understanding of religious parenting.

The implications of this move are several. First, it elevates parental rights beyond the Due Process Clause. By embedding it instead into the Free Exercise Clause, the Court magnifies the comprehensiveness of religious protections and signifies that it can stand on its own as a right deserving of protection, unlike Smith’s hybrid rights requirement. Second, the majority’s language about “fundamental values” and “enduring American tradition” situates religious parenting as essential to the constitutional order.^[38] This strengthens the Free Exercise claim by reaffirming a foundationalist narrative about religious liberty and family autonomy. Such rhetoric raises the stakes of burdening any type of religious freedom and buttresses the emphasis on prohibiting governmental actions that burden what is foundational to American values.

4. Conclusion

Mahmoud v. Taylor marks a pivotal moment in the evolution of Free Exercise jurisprudence. Though the Court did not expressly reject Smith, it embraced a burden-centered framework rooted in Yoder, bypassing both the neutrality inquiry and the hybrid-rights doctrine. In doing so, the Court signaled an emerging doctrinal commitment to robust protection of religious parenting, a commitment that reflects broader skepticism about Smith’s sufficiency.

By emphasizing the “character” of the burden and subsuming parental rights within the Free Exercise Clause, Mahmoud represents not merely a parental rights case but a profound reorientation of Free Exercise law. It is a step toward reviving the pre-Smith constitutional landscape, in which courts engaged directly and substantively with the burdens placed on religious practice. Whether this development culminates in the formal overruling of Smith remains uncertain, but Mahmoud undeniably contributes to the steady erosion of Smith and signals a path toward a more accommodationist Free Exercise regime.

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[1] Mahmoud v. Taylor, 606 U.S. ___ (2025), 35.

[2] Wisconsin v. Yoder, 406 U.S. 205 (1972); Employment Div. v. Smith, 494 U.S. 872 (1990).

[3] Richard Katskee and Ira C. Lupu, Volume 24, FIRST AMENDMENT LAW REVIEW (Univ. of North Carolina), in Symposium, The Court’s Ever Changing Religion Clause Jurisprudence: The Cases of the 2024-25 Term (forthcoming 2026), 12; Cynthia Crawford. “Mahmoud v. Taylor.” Cato Supreme Court Review: 2024-2025 (2025).

[4] Crawford, supra at 195-197.

[5] Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. 617 (2018); Fulton v. City of Philadelphia, 593 U.S. 522 (2021).

[6] Mahmoud, supra.

[7] Id. at 22.

[8] Id. at 25.

[9] Id. at 17.

[10] Yoder, supra.

[11] Id. at 214.

[12] Id. at 25.

[13] Mahmoud, supraprinciples.

[14] Chad Flanders, Is Wisconsin v. Yoder Limited to Its Facts? 16 ConLawNOW 23 (2025), 24.

[15] Katskee and Lupu, supra at 8.

[16] Smith, supra at 898.

[17] Id.

[18] Id. at 889.

[19] Id. at 882.

[20] Id.

[21] Ryan S. Rummage, In Combination: Using Hybrid Rights to Expand Religious Liberty, 64 Emory L. J. 1175 (2015).

[22] Mahmoud, supra note 14 at 36.

[23] Crawford, supra 196.

[24] Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 US 520 (1993).

[25] Masterpiece Cakeshop, supra at 3.

[26] Id. at 3.

[27] Id. at 3.

[28] Douglas Laycock, The Broader Implications of Masterpiece Cakeshop, 2019 BYU L. Rev. 167 (2019).

[29] Fulton, supra at 8.

[30] Lukumi, supra at 540.

[31]  Richard F. Duncan, Free Exercise is Dead, Long Live Free Exercise: Smith, Lukumi and the General Applicability Requirement, 3 U. Pa. J. Const. L. 850 (2001); Laycock, supra.

[32] Duncan, supra. at 740.

[33] Masterpiece Cakeshop, supra. at 5.

[34] Mahmoud, supra at 36.

[35] Id. at 36.

[36] Smith, supra at 494.

[37] Mahmoud, supra at 21.

[38] Id. at 31.