Hecker Fink and Constitutional Law Scholars File Amicus Brief in U.S. Supreme Court in Mahmoud v. Taylor

Yesterday, Hecker Fink, Professor Chip Lupu (emeritus) of George Washington University Law School, Professor Richard Katskee of Duke University School of Law, and several law students filed an amicus brief on behalf of eleven constitutional law scholars in the U.S. Supreme Court on behalf of respondents in Mahmoud v. Taylor.

The brief, which can be read in full here, argues that the Fourth Circuit properly rejected petitioners’ claim that public schools burden Free Exercise Clause rights whenever students are exposed to curricular instruction that offends parents’ religious beliefs. The brief explains that petitioners’ request for a presumptive opt-out right whenever public-school instruction may expose students to material or ideas that they or their parents find objectionable on religious grounds would be inconsistent with 50 years of precedent. And the brief makes clear that accepting petitioners’ mistaken theory of the Free Exercise Clause would cause harmful consequences because it includes no credible limiting principle. Petitioners’ view invites conflict and litigation over curriculum design and school administration that would invite religious discord, and disputes over religious preferentialism, as public schools seek to rid their curricula of anything that might draw burdensome religious objections and as families inevitably disagree over which objections to sustain.

The Hecker Fink team includes Joshua Matz, Kate Doniger, Martin Totaro, Rachel Freeh, and Krysta Kilinski.