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Last week, the Supreme Court heard oral argument in Mahmoud v. Taylor, with the argument lasting one minute shy of two-and-a-half hours. After that marathon session, it was clear that a majority of the Court, likely six Justices, will rule in favor of the petitioners. As Justice Kavanaugh remarked to the respondents’ attorney at one point, “this is a tough case to argue.” What is not clear is how far the majority will go.

Mahmoud involves a Free Exercise Clause challenge brought by parents of children in Montgomery County, Maryland, schools. The Board of Education decided to include in its elementary school (and pre-K) curriculum various books promoting LGBTQ+ lifestyles. After initially allowing parents to opt-out, the Board withdrew that option, even though parents could opt-out their children from similar content in the health and sexuality instruction in the county schools. Parents with various religious objections, including Muslims and Orthodox Christians, brought suit. The lower courts only reached the threshold issue of whether there was a substantial burden, finding none because there was no coercion.

The lively questioning during oral argument showed that Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett are very likely to rule in favor of the parents on the burden issue. And Justices Kagan, Sotomayor, and Jackson seem likely to side with the Board of Education. But it is unclear whether there is a majority to go beyond the burden question and decide the rest of the case: Should the free exercise claim be evaluated under Smith’s rational basis, or, because the policy lacked neutrality or general applicability, under strict scrutiny? And who should prevail under the applicable test? Justice Barrett repeatedly emphasized that the Court does not need to reach anything beyond the burden issue, and it would not be surprising if one or two more Justices in the majority joined her such that there was not a majority to decide anything further.

Should the majority reach the question of whether the policy was neutral and generally applicable, it appears the answer will be “no.” That’s because the Board allows various other opt-outs, such as from similar curriculum taught in health and sexuality instruction, from Halloween and Valentine’s Day, and for Muslim children from books that show a picture of Mohammed. Because the Board allows opt-outs from the curriculum in related contexts but not this one, the policy likely fails general applicability.

Even how the majority decides the burden question may be somewhat splintered. Justice Barrett elicited from petitioners’ counsel, Becket’s Eric Baxter, three possible definitions of substantial burden: (1) Yoder’s substantial interference, (2) pressure to abandon or modify religious beliefs to access a public benefit (from cases from Sherbert to Fulton), and (3) religious discrimination.

Justice Gorsuch seemed inclined to find that religious discrimination automatically qualifies as a substantial burden without further burden analysis, and he was able to obtain a concession from respondents’ counsel to that effect. Similarly, Gorsuch wondered aloud whether showing that something triggers strict scrutiny essentially does away with the burden issue. Petitioner’s counsel agreed that if strict scrutiny is triggered due to a lack of neutrality or general applicability, one would only need to show injury sufficient to satisfy Article III standing.

The majority did seem united on the fact that coercion, while sufficient to show a substantial burden, was not necessary. And Justice Barrett framed the situation here as indoctrination, which falls in between coercion (or compulsion) and mere exposure.

Justice Gorsuch also asked Sarah Harris from the Solicitor General’s office why this case couldn’t just be decided under Masterpiece Cakeshop, which found that animus against religion violates the Free Exercise Clause. Here, members of the Board apparently made hostile remarks against the religion of the parents and children in a meeting held after the policy was adopted (though respondents dispute that the remarks were hostile by pointing to the context). If the Court finds some of the free exercise line-drawing questions too tricky, it could find an easy out by making a Masterpiece-type decision. (Both Justice Sotomayor and respondents’ counsel distinguished Masterpiece because that was an adjudicative context.)

For those who may have been hoping for a resuscitation of Smith’s hybrid-rights doctrine in Mahmoud, that seems unlikely. It only came up once when Justice Barrett, Justice Scalia’s former clerk, asked petitioners’ counsel whether the Court would have to embrace the controversial doctrine in order to adopt Yoder’s definition of substantial burden, implying she hoped not. It would be nice if the Court would once and for all make clear whether hybrid rights are alive or dead, given confusion in the lower courts; but it appears we will have to keep muddling through until another case presents the issue.

Justices Kagan, Sotomayor, and Jackson consistently raised a parade of horribles that would arise if the Court ruled in favor of petitioners. However, by the end of the argument, a series of limitations to the possibility of parents dictating school curriculum emerged. First, religious objections must be sincere, and burdens on religion must be substantial. Second, the parents here were only asking to opt out of specific lessons rather than alter the curriculum. Third, where parents object to information shared by a classmate rather than through official school curriculum, there would be no state action, and thus no free exercise claim. Fourth, the government should be able to satisfy strict scrutiny for more extreme claims, such as just having a book in a library. And, petitioners noted, five states (Arizona, Utah, Hawaii, Pennsylvania, and Minnesota) have broader opt-outs than the constitutional rule they propose, and the sky hasn’t fallen in those states.

A few other points may make their way into what will likely be several concurring and dissenting opinions. Justice Gorsuch obtained a concession from respondents’ counsel that the books at issue are not in the human sexuality curriculum (which parents can opt their children out of and which starts around grades 4 or 5) but in the English curriculum (which parents cannot opt their children out of and which starts in pre-K), and that the purpose of this placement is to influence the children (even if there is not agreement as to what type of influence is the curriculum’s goal).

While respondents repeatedly argued that an opt-out system was abandoned due to administrability concerns, Justices Alito and Kavanaugh questioned why opt-outs were not feasible given that they are common in other schools and even in this district in related contexts. Additionally, respondents observed that many, if not most, of the opt-out requests weren’t for religious reasons, meaning opt-outs for religious reasons are less of a burden as they are fewer in number.

Justice Barrett questioned whether attending a public school was really a public benefit since attendance is compelled, enforced by a misdemeanor and fine for parents. Justice Jackson countered that parents have a choice if they don’t like the public school curriculum—they can send their kids to private school or home school them. Petitioners’ counsel responded that most parents don’t really have that choice due to economic realities: if both parents work, home school is not a practical option, and even in families with both parents working, private school options are usually unaffordable.

Given the late date of the argument and the likelihood of multiple concurring and dissenting opinions, the Court is unlikely to hand down its decision before the last week of the term in late June or early July.