Subsidiarity as Free Exercise: Mahmoud v. Taylor and the “Character” of Yoder

David M. Jordan*

This Note argues that Mahmoud is best understood neither as a hybrid rights case nor as a repudiation of Smith, but as identifying a burden rooted in overlapping claims of authority and resolved through the principle of subsidiarity. Mahmoud treats certain free exercise claims as disputes over institutional authority (between families and schools) rather than clashes between individual conscience and government regulation. When school policies substantially interfere with parents’ ability to direct their children’s religious formation, the constitutional question is whether the state has usurped a domain of authority that belongs, in the first instance, to parents. Framed as such, Mahmoud is not a sui generis exception but rather is entirely consistent with the Court’s longstanding role in upholding counter-majoritarian rights claims.

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* J.D. Candidate, Notre Dame Law School, 2027; B.A., The Ohio State University, 2024. The author thanks Professor Richard Garnett for his advice and guidance, Monica Jordan for her constant support, and the editors of the Notre Dame Law Review for their diligence and camaraderie.