Petition for Writ of Certiorari — Tamer Mahmoud, et al., Petitioners v. Thomas W. Taylor, et al.
Supreme Court briefSep 12, 2024
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No. _______
In the Supreme Court of the United States
__________
TAMER MAHMOUD AND ENAS BARAKAT; JEFF AND SVITLANA
ROMAN; CHRIS AND MELISSA PERSAK, IN THEIR INDIVIDUAL
CAPACITIES AND EX REL. THEIR MINOR CHILDREN; AND KIDS FIRST,
AN UNINCORPORATED ASSOCIATION,
Petitioners,
v.
THOMAS W. TAYLOR, IN HIS OFFICIAL CAPACITY AS
SUPERINTENDENT OF THE MONTGOMERY COUNTY BOARD OF
EDUCATION; THE MONTGOMERY COUNTY BOARD OF EDUCATION;
AND SHEBRA EVANS, LYNNE HARRIS, GRACE RIVERA-OVEN, KARLA
SILVESTRE, REBECCA SMONDROWSKI, BRENDA WOLFF, AND JULIE
YANG, IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE BOARD
OF EDUCATION,
Respondents.
__________
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
__________
PETITION FOR A WRIT OF CERTIORARI
__________
ERIC S. BAXTER
Counsel of Record
WILLIAM J. HAUN
MICHAEL J. O’BRIEN
COLTEN L. STANBERRY
THE BECKET FUND FOR
RELIGIOUS LIBERTY
1919 Pennsylvania Ave. NW, Suite 400
Washington, D.C. 20006
(202) 955-0095
ebaxter@becketlaw.org
Counsel for Petitioners
QUESTION PRESENTED
Respondent Montgomery County Board of Education requires elementary school teachers to read their
students storybooks celebrating gender transitions,
Pride parades, and same-sex playground romance.
The storybooks were chosen to disrupt “cisnormativity” and “either/or thinking” among students. The
Board’s own principals objected that the curriculum
was “not appropriate for the intended age group,” presented gender ideology as “fact,” “sham[ed]” students
with contrary opinions, and was “dismissive of religious beliefs.” The Board initially allowed parents to
opt their kids out—but then reversed course, saying
that no opt-outs would be permitted and that parents
would not even be notified when the storybooks were
read.
Petitioners filed suit, not challenging the curriculum, but arguing that compelling their elementary-age
children to participate in instruction contrary to their
parents’ religious convictions violated the Free Exercise Clause. Construing Wisconsin v. Yoder, the
Fourth Circuit found no free-exercise burden because
no one was forced “to change their religious beliefs or
conduct.”
The question presented is:
Do public schools burden parents’ religious exercise when they compel elementary school children to
participate in instruction on gender and sexuality
against their parents’ religious convictions and without notice or opportunity to opt out?
ii
PARTIES TO THE PROCEEDINGS AND
CORPORATE DISCLOSURE STATEMENT
Petitioners Tamer Mahmoud and Enas Barakat,
Jeff and Svitlana Roman, and Chris and Melissa
Persak are parents of elementary-age children in
Montgomery County, Maryland. They are plaintiffs
below.
Petitioners Chris and Melissa Persak are also
acting ex rel. their minor children, who are plaintiffs
below.
Petitioner Kids First is an unincorporated
association and is a plaintiff below. It does not have a
parent corporation or issue stock.
Respondent Thomas W. Taylor is the Montgomery
County Superintendent of public schools. He is sued in
his official capacity. His predecessor, Monifa B.
McKnight, was a defendant below in her official capacity.
The Montgomery County Board of Education was a
defendant below.
Shebra Evans, Lynne Harris, Grace Rivera-Oven,
Karla Silvestre, Rebecca Smondrowski, Brenda Wolff,
and Julie Yang are members of the Board of Education
and are defendants in their official capacities.
iii
RELATED PROCEEDINGS
There are no related proceedings.
iv
TABLE OF CONTENTS
Page
QUESTION PRESENTED ........................................... i
PARTIES TO THE PROCEEDINGS AND
CORPORATE DISCLOSURE STATEMENT ............. ii
RELATED PROCEEDINGS ...................................... iii
TABLE OF AUTHORITIES ...................................... xii
INTRODUCTION ........................................................ 1
OPINIONS BELOW .................................................... 4
JURISDICTION .......................................................... 4
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED ......................................... 4
STATEMENT OF THE CASE .................................... 5
I. Statutory Background ...................................... 5
II. Factual Background ......................................... 8
A. Petitioners’ religious beliefs ........................ 8
B. The Pride storybooks ................................. 11
C. The Board’s notice and opt-out ban .......... 14
D. The proceedings below .............................. 17
REASONS FOR GRANTING THE PETITION........ 19
I. The decision below deepens a 5-1 split
over whether forced participation in
public school instruction can create a
free-exercise burden........................................ 19
v
A. Five circuits hold that forced
participation in public school
instruction cannot alone burden
free exercise. .............................................. 20
B. The Eighth Circuit holds that forced
participation in public school
instruction may alone burden
religious exercise. ...................................... 22
II. The decision below conflicts with this
Court’s free-exercise jurisprudence. ............... 23
A. The decision below misreads Yoder. ......... 24
B. The decision below conflicts with
free-exercise precedents from
Sherbert to Kennedy. ................................. 26
III. The petition presents a pressing
question of nationwide importance. .............. 30
CONCLUSION .......................................................... 35
APPENDIX
Opinion, Mahmoud v. McKnight,
No. 23-1890 (4th Cir. May 15, 2024) ................... 1a
Opinion, Mahmoud v. McKnight,
No. 8:23-cv-1380 (D. Md. Aug. 24, 2023) ........... 76a
Order, Denying Motion for Preliminary Injunction and Motion for Injunction Pending Appeal, Mahmoud v. McKnight, No.
8:23-cv-1380 (D. Md. Aug. 24, 2023),
Dkt. 60 .............................................................. 155a
Verified First Amended Complaint,
Mahmoud v. McKnight, No. 8:23-cv-1380
(D. Md. July 6, 2023), Dkt. 36.......................... 156a
vi
Ex. A to Complaint, 2022-2023 Guidelines
for Respecting Religious Diversity in
Montgomery County Public Schools,
Mahmoud v. McKnight, No. 8:23-cv-1380
(D. Md. May 24, 2023), Dkt. 1-2 ...................... 210a
Ex. B to Complaint, Newly Approved
LGBTQ-Inclusive Texts by Grade Level,
Mahmoud v. McKnight, No. 8:23-cv-1380
(D. Md. May 24, 2023), Dkt. 1-3 ...................... 234a
Ex. C to Complaint, Pride Puppy,
Mahmoud v. McKnight, No. 8:23-cv-1380
(D. Md. May 24, 2023), Dkt. 1-4 ...................... 254a
Ex. D to Complaint, News Article Regarding
Pride Storybooks, Mahmoud v. McKnight,
No. 8:23-cv-1380 (D. Md. May 24, 2023),
Dkt. 1-5 ............................................................. 272a
Ex. E to Complaint, Uncle Bobby’s Wedding,
Mahmoud v. McKnight, No. 8:23-cv-1380
(D. Md. May 24, 2023), Dkt. 1-6 ...................... 279a
Ex. F to Complaint, Intersection Allies,
Mahmoud v. McKnight, No. 8:23-cv-1380
(D. Md. May 24, 2023), Dkt. 1-7 ...................... 309a
Ex. G to Complaint, My Rainbow,
Mahmoud v. McKnight, No. 8:23-cv-1380
(D. Md. May 24, 2023), Dkt. 1-8 ...................... 357a
Ex. J to Complaint, Prince & Knight,
Mahmoud v. McKnight, No. 8:23-cv-1380
(D. Md. May 24, 2023), Dkt. 1-9 ...................... 390a
Ex. H to Complaint, Love, Violet,
Mahmoud v. McKnight, No. 8:23-cv-1380
(D. Md. May 24, 2023), Dkt. 1-10 .................... 429a
vii
Ex. I to Complaint, Born Ready,
Mahmoud v. McKnight, No. 8:23-cv-1380
(D. Md. May 24, 2023), Dkt. 1-11 .................... 448a
Ex. K to Complaint, Email from Principal
Dina Brewer to Sherwood Families,
Mahmoud v. McKnight, No. 8:23-cv-1380
(D. Md. May 24, 2023), Dkt. 1-12 .................... 483a
Ex. L to Complaint, Roman Family Correspondence with School Administrators,
Mahmoud v. McKnight, No. 8:23-cv-1380
(D. Md. May 24, 2023), Dkt. 1-13 .................... 486a
Ex. M to Complaint, Mahmoud & Barakat
Family Correspondence with School Administrator, Mahmoud v. McKnight, No.
8:23-cv-1380 (D. Md. May 24, 2023), Dkt.
1-14 ................................................................... 497a
Ex. N to Complaint, Slide Deck regarding
Pride Storybooks, Mahmoud v. McKnight,
No. 8:23-cv-1380 (D. Md. May 24, 2023),
Dkt. 1-15 ........................................................... 499a
Declaration of Tamer Mahmoud and Enas
Barakat in Support of Plaintiffs’ Motion
for a Preliminary Injunction, Mahmoud v.
McKnight, No. 8:23-cv-1380
(D. Md. June 12, 2023), Dkt. 23-2 ................... 529a
Declaration of Jeff Roman and Svitlana Roman in Support of Plaintiffs’ Motion for a
Preliminary Injunction, Mahmoud v.
McKnight, No. 8:23-cv-1380
(D. Md. June 12, 2023), Dkt. 23-3 ................... 535a
viii
Declaration of Chris Persak and Melissa Persak in Support of Plaintiffs’ Motion
for a Preliminary Injunction, Mahmoud v.
McKnight, No. 8:23-cv-1380
(D. Md. June 12, 2023), Dkt. 23-4 ................... 542a
Declaration of Eric Baxter in Support of
Plaintiffs’ Motion for a Preliminary Injunction, Mahmoud v. McKnight, No. 8:23cv-1380 (D. Md. June 12, 2023),
Dkt. 23-5 ........................................................... 546a
Exhibit 1 to Declaration of Eric Baxter in
Support of Plaintiffs’ Motion for a Preliminary Injunction, What Are
Your Words?, Mahmoud v. McKnight,
No. 8:23-cv-1380 (D. Md. June 12, 2023),
Dkt. 23-5 ........................................................... 548a
Exhibit 2 to Declaration of Eric Baxter in
Support of Plaintiffs’ Motion for a Preliminary Injunction, Jacob’s Room
to Choose, Mahmoud v. McKnight,
No. 8:23-cv-1380 (D. Md. June 12, 2023),
Dkt. 23-5 ........................................................... 565a
Exhibit 1 to Defendants’ Opposition to Plaintiffs’ Motion for Preliminary Injunction,
Defendants’ Nondiscrimination Policy,
Mahmoud v. McKnight,
No. 8:23-cv-1380 (D. Md. July 12, 2023),
Dkt. 42-2 ........................................................... 581a
Declaration of Niki T. Hazel in Support of Defendants’ Opposition to Plaintiffs’ Motion
for Preliminary Injunction, Mahmoud v.
McKnight, No. 8:23-cv-1380 (D. Md. July
13, 2023), Dkt. 43 ............................................. 597a
ix
Declaration of Robert McCaw, Mahmoud v.
McKnight, No. 8:23-cv-1380 (D. Md. July
26, 2023), Dkt. 47-1 .......................................... 610a
Exhibit A to Declaration of Robert McCaw,
Response to Maryland Public Information
Act (“MPIA”) Request, Mahmoud v.
McKnight, No. 8:23-cv-1380 (D. Md. July
26, 2023), Dkt. 47-1 .. 612aExhibit B to Declaration
of Robert McCaw, Documents Produced in
Response to
MPIA Request, Mahmoud v. McKnight,
No. 8:23-cv-1380 (D. Md. July 26, 2023),
Dkt. 47-1 ........................................................... 614a
Exhibit 1 to Second Declaration of Eric Baxter in Support of Plaintiffs’ Motion for a
Preliminary Injunction, Adding an
LGBTQ+ Lens to Our Critical Selection
Repertoire, Mahmoud v. McKnight,
No. 8:23-cv-1380 (D. Md. Aug. 8, 2023),
Dkt. 49-1 ........................................................... 622a
Declaration of Grace Morrision in Support of
Plaintiffs’ Motion for a Preliminary Injunction, Mahmoud v. McKnight,
No. 8:23-cv-1380 (D. Md. Aug. 11, 2023),
Dkt. 52 .............................................................. 624a
Exhibit 3 to Third Declaration of Eric Baxter
in Support of Plaintiffs’ Motion for a Preliminary Injunction, Sample Call-Ins,
Mahmoud v. McKnight, No. 8:23-cv-1380
(D. Md. Aug. 16, 2023), Dkt. 55-3 .................... 628a
x
Exhibit 4 to Third Declaration of Eric Baxter
in Support of Plaintiffs’ Motion for a Preliminary Injunction, Responding to Caregivers / Community Questions Mahmoud
v. McKnight, No. 8:23-cv-1380 (D. Md.
Aug. 16, 2023), Dkt. 55-4 ................................. 636a
Excerpts from Transcript of August 9, 2023
Preliminary Injunction Hearing,
Mahmoud v. McKnight, No. 8:23-cv-1380
(D. Md.) ............................................................ 642a
Rule 28(j) Notice of Supplemental Authority,
Declaration of Grace Morrison, Mahmoud v.
McKnight, No. 23-1890 (4th Cir. Sept. 29,
2023), Dkt. 49 ................................................... 644a
Exhibit A to Rule 28(j) Notice of Supplemental
Authority, Declaration of Grace Morrison,
Second Declaration of Grace Morrison,
Mahmoud v. McKnight, No. 23-1890
(4th Cir. Sept. 29, 2023), Dkt. 49 ..................... 647a
Exhibit 1 to Exhibit A to Rule 28(j) Notice
of Supplemental Authority, Declaration of
Grace Morrison, Second Declaration of
Grace Morrison, Mahmoud v. McKnight,
No. 23-1890 (4th Cir. Sept. 29, 2023),
Dkt. 49 .............................................................. 650a
Exhibit 2 to Exhibit A to Rule 28(j) Notice of
Supplemental Authority, Declaration of
Grace Morrison, Second Declaration of
Grace Morrison, Mahmoud v. McKnight,
No. 23-1890 (4th Cir. Sept. 29, 2023),
Dkt. 49 .............................................................. 654a
xi
5 Things to Know, Montgomery County
Public Schools (Mar. 23, 2023) ........................ 657a
Stephanie Ramirez, MCPS Revises policy
on LGBTQ-friendly books, Fox 5 DC
(Mar. 24, 2023) ................................................. 658a
Excerpts of Memorandum from Karen B.
Salmon, Ph.D., State Superintendent
of Schools, to Members of the State
Board of Education (June 4, 2019) .................. 664a
2023-2024 Guidelines for Respecting Religious
Diversity in Montgomery County Public
Schools, Montgomery County
Public Schools ................................................... 669a
xii
TABLE OF AUTHORITIES
Page(s)
Cases
Apache Stronghold v. United States,
101 F.4th 1036 (9th Cir. 2024),
petition for cert. pending,
No. 24-___ (filed Sept. 11, 2024) .......................... 34
Bostock v. Clayton County,
590 U.S. 644 (2020) .............................................. 34
Bowen v. Roy,
476 U.S. 693 (1986) .............................................. 27
Brown v. Hot, Sexy & Safer Prods., Inc.,
68 F.3d 525 (1st Cir. 1995) .................................. 20
C.N. v. Ridgewood Bd. of Educ.,
430 F.3d 159 (3d Cir. 2005)............................. 22-23
California Parents for the Equalization
of Educ. Materials v. Torlakson,
973 F.3d 1010 (9th Cir. 2020) .............................. 31
Carson v. Makin,
596 U.S. 767 (2022) .............................................. 25
Church of Lukumi Babalu Aye, Inc. v.
City of Hialeah,
508 U.S. 520 (1993) .............................................. 30
Donahoe v. Richards,
38 Me. 379 (1854) ................................................. 33
xiii
Employment Div. v. Smith,
494 U.S. 872 (1990) .............................................. 24
Espinoza v. Montana Dep’t
of Revenue,
591 U.S. 464 (2020) ................. 24, 28-29, 31, 32, 34
Fleischfresser v. Directors of
Sch. Dist. 200,
15 F.3d 680 (7th Cir. 1994) .................................. 21
Florey v. Sioux Falls
Sch. Dist. 49-5,
619 F.2d 1311 (8th Cir. 1980) .............................. 22
Fulton v. City of Philadelphia,
593 U.S. 522 (2021) ........................... 27, 28, 30, 34
Kennedy v. Bremerton
School District,
597 U.S. 507 (2022) ......................................... 29-30
Leebaert v. Harrington,
332 F.3d 134 (2d Cir. 2003)............................ 20, 25
Loper Bright Enters. v. Raimondo,
144 S. Ct. 2244 (2024) .................................... 32, 33
Masterpiece Cakeshop v. Colorado
C.R. Comm’n,
584 U.S. 617 (2018) .............................................. 30
Minersville Sch. Dist. v. Gobitis,
310 U.S. 586 (1940) .............................................. 32
xiv
Morse v. Frederick,
551 U.S. 393 (2007) ................................... 31, 33-34
Mozert v. Hawkins Cnty.
Bd. of Educ.,
827 F.2d 1058 (6th Cir. 1987) ............. 20-21, 25, 33
Nken v. Holder,
556 U.S. 418 (2009) .............................................. 25
Parham v. J.R.,
442 U.S. 584 (1979) .............................................. 33
Parker v. Hurley,
514 F.3d 87 (1st Cir. 2008) .................................. 20
Ramirez v. Collier,
595 U.S. 411 (2022) .............................................. 25
Salazar v. Buono,
559 U.S. 700 (2010) ......................................... 30-31
Sheetz v. County of El Dorado,
601 U.S. 267 (2024) ......................................... 31-32
Sherbert v. Verner,
374 U.S. 398 (1963) .................................. 26, 27, 29
Spence v. Bailey,
465 F.2d 797 (6th Cir. 1972) ................................ 23
Tatel v. Mt. Lebanon Sch. Dist.,
637 F. Supp. 3d 295 (W.D. Pa. 2022) ................... 23
Texas v. United States,
809 F.3d 134 (5th Cir. 2015) ................................ 25
xv
Thomas v. Review Bd.,
450 U.S. 707 (1981) ........................................ 21, 26
Trinity Lutheran Church of
Columbia, Inc. v. Comer,
582 U.S. 449 (2020) .............................................. 29
Wisconsin v. Yoder,
406 U.S. 205 (1972) ............................ 24, 31, 32, 34
West Virginia State Bd. of Educ.
v. Barnette,
319 U.S. 624 (1943) .............................................. 32
Statutes and Regulations
28 U.S.C. § 1254 .......................................................... 4
Ala. Code § 16-40A-5 ................................................... 6
Ala. Code § 16-41-6 ...................................................... 6
Alaska Stat. § 14.30.355 .............................................. 6
Alaska Stat. § 14.30.356 .............................................. 6
Ariz. Rev. Stat. § 15-711 .............................................. 7
Ariz. Rev. Stat. § 15-716 .............................................. 7
Ark. Code § 6-16-1006 ................................................. 6
Cal. Educ. Code § 51937 .............................................. 6
Colo. Rev. Stat. § 22-1-128 .......................................... 6
Colo. Rev. Stat. § 22-25-104 ........................................ 6
xvi
Conn. Gen. Stat. § 10-16e............................................ 6
D.C. Mun. Regs. subtit. 5, § E2305.5. ......................... 7
Fla. Stat. § 1001.42 ...................................................... 6
Fla. Stat. § 1002.20...................................................... 6
Fla. Stat. § 1003.42...................................................... 6
Ga. Code § 20-2-143 ..................................................... 6
Haw. Dep’t of Educ., Bd. of Educ. Policy
103-5 ....................................................................... 6
Haw. Dep’t of Educ., Bd. of Educ. Policy
101-13 ..................................................................... 6
Haw. Dep’t of Educ. Reg. No. 2210.1 .......................... 6
Idaho Code § 33-1608 .................................................. 6
Idaho Code § 33-1611 .................................................. 6
105 Ill. Comp. Stat. 5/27-9.1a ..................................... 6
Ind. Code § 20-30-5-17 ................................................. 7
Iowa Code § 256.11 ...................................................... 6
Kan. Admin. Regs. § 91-31-35 ..................................... 7
Ky. Rev. Stat. § 158.1415 ............................................ 7
La. Stat. § 17:281 ......................................................... 6
La. Stat. § 17:412 ......................................................... 6
xvii
Mass. Gen. Laws ch. 71, § 32A.................................... 6
Md. Code Educ. § 7-301 ............................................. 17
Md. Code Regs. § 13A.04.18.01 ....................... 4, 5, 6, 7
Me. Rev. Stat. tit. 22, § 1911 ....................................... 6
Mich. Comp. Laws § 380.1507 .................................... 6
Minn. Stat. § 120B.20 .................................................. 6
Miss. Code § 37-13-173 ................................................ 7
Mo. Stat. § 170.015 ...................................................... 6
Mont. Code § 20-7-120 ................................................. 6
N.C. Gen. Stat. § 115C-81.30 ...................................... 6
N.H. Rev. Stat. § 186:11 .............................................. 6
N.J. Stat. § 18A:35-4.7 ................................................ 6
N.M. Code R. § 6.29.6.11 ............................................. 6
Neb. Rev. Stat. § 79-532 .............................................. 6
Nev. Rev. Stat. § 389.036 ............................................ 7
N.Y. Comp. Codes R. & Regs. tit. 8,
§ 135.3 ..................................................................... 6
Ohio Rev. Code § 3313.60 ............................................ 6
Okla. Stat. tit. 70, § 11-103.3 ...................................... 6
xviii
Or. Dep’t of Educ. Admin. R.
581-021-0009 .......................................................... 7
Or. Dep’t of Educ. Admin. R.
581-022-2050 ....................................................... 6-7
Or. Rev. Stat. § 336.465............................................... 6
22 Pa. Code § 4.4.......................................................... 7
22 Pa. Code § 4.29........................................................ 7
R.I. Gen. Laws § 16-22-17 ........................................... 7
R.I. Gen. Laws § 16-22-18 ........................................... 7
R.I. Gen. Laws § 16-22-24 ........................................... 7
S.C. Code. § 59-32-50 ................................................... 7
S.D. Codified Laws § 13-33-6.1 ................................... 6
Tenn. Code § 49-6-1305 ............................................... 7
Tenn. Code § 49-6-1307 ............................................... 7
Tenn. Code § 49-6-1308 ............................................... 7
Tex. Educ. Code § 28.004 ............................................ 7
Utah Code § 53E-9-203 ............................................... 7
Utah Code § 53G-10-205 ............................................. 7
Utah Code § 53G-10-403 ............................................. 7
Va. Code. § 22.1-207.2 ................................................. 7
xix
Vt. Stat. tit. 16, § 134 .................................................. 7
W. Va. Code § 18-2-9 ................................................... 7
Wash. Rev. Code. § 28A.230.070 ................................. 7
Wis. Stat. § 118.019 ..................................................... 7
Wyo. Stat. § 21-9-104............................................... 6, 7
Other Authorities
Ismail Allison, Over 1,000 Maryland
Parents, Community Members, Urge
MCPS to Restore Curriculum OptOut Option and Parental Notice,
Dialogue with Families, Council on
American-Islamic Relations
(Apr. 17, 2023) ...................................................... 15
Nicole Asbury and Katie Shepherd,
Hundreds of Maryland parents
protest lessons they say offend their
faith, Washington Post,
June 27, 2023 .................................................. 15-16
Catechism of the Catholic Church ............................ 10
Zainab Chaudry, Montgomery parents
want an opt-out on gender education
restored, Washington Post,
July 17, 2023 ................................................... 15-16
xx
Jessica Fillak, The History Of Sexuality
Education In The United States, Sexual Health Alliance,
June 8, 2021 ........................................................... 5
John ............................................................................. 9
Genesis ......................................................................... 9
Sherif Girgis, Defining “Substantial
Burdens” on Religion and
Other Liberties,
108 Va. L. Rev. 1759 (2022) ................................. 34
Guttmacher Institute, Sex and HIV
Education (Sept. 1, 2023) ....................................... 5
Keith T. Hayashi, Superintendent, Haw.
Dep’t of Educ., Annual
Memorandum: Notice on Board of
Education Policy 101-13
Controversial Issues (June 23, 2023) .................... 6
Michael A. Helfand, Substantial
Burdens as Civil Penalties,
108 Iowa L. Rev. 2189 (2023)............................... 34
Aleja Hertzler-McCain, Montgomery
County, Maryland, was most
religiously diverse US county
in 2023, Religion News Service,
Aug. 30, 2024 .......................................................... 8
Kan. Dep’t of Educ., Frequently Asked
Questions about Health Education in
Kansas (2018) ......................................................... 7
xxi
Kan. Dep’t of Educ., Kansas Model
Curricular Standards for Health
Education 2018....................................................... 7
Letter from Thomas Jefferson to Joseph
Cabell, Sept. 9, 1817, in 17 Writings
of Thomas Jefferson
(Mem. ed. 1904) .................................................... 24
Pontifical Council for the Family, The
Truth and Meaning of Human Sexuality: Guidelines for Education
within the Family (Dec. 8, 1995) ......................... 10
Katherine Schaeffer, U.S. public, private
and charter schools in 5 charts,
Pew Research Center, June 6, 2024 .................... 31
SIECUS, Guidelines for Comprehensive
Sexuality Education (3d ed. 2004) ......................... 5
SIECUS, Sex Ed State Law and
Policy Chart (July 2022) ........................................ 6
SIECUS, State Profiles ................................................ 5
Surah Al-An’am ........................................................... 9
Surah Al-Furqan ......................................................... 9
1 Thessalonians ......................................................... 10
INTRODUCTION
In November 2022, Respondent Montgomery
County Board of Education mandated new “inclusive”
storybooks that celebrate gender transitions, explore
Pride parades, and introduce same-sex romance between young children. At the time, parents were promised they would be notified and could opt their children
out when the storybooks were read. That practice was
consistent with Maryland state law and the Board’s
own policies, both of which contemplate parental notice and opt-outs. In March 2023, the Board confirmed
in a press statement that before one of the storybooks
is read, “a notification goes out to parents” and, “[i]f a
parent chooses to opt out, a teacher can find a substitute.”
But the very next day, without explanation, the
Board reversed course. Beginning with the 2023-2024
school year, it announced, no further notice would be
provided and no opt-outs tolerated as to the storybooks. Yet the Board continued to allow opt-outs from
analogous instruction in the sex education unit of
state-mandated health classes, including for high
schoolers. If parents did not like what was taught to
their elementary school kids, their only choice was to
send them to private school or to homeschool.
Hundreds of parents—mostly Muslim and Eastern
Orthodox—packed the Board’s summer meetings.
Dozens testified that they had religious obligations not
to subject their young children to instruction on gender and sexuality that conflicted with their religious
beliefs. The parents emphasized how impressionable
young children are and how they lack independent
judgment to process such complex and sensitive issues. In response, Board members publicly accused
2
them of promoting “hate” and compared them to
“white supremacists” and “xenophobes.”
After the Board refused to accommodate them, Petitioners filed suit under the Free Exercise Clause,
seeking to retain the same opt-out rights the Board
had guaranteed just months earlier. The district court
denied a preliminary injunction, and the Fourth Circuit affirmed in a 2-1 decision. According to the panel
majority, there is no free-exercise burden because
denying opt-outs did not “compel[ ]” Petitioners to
“change their religious beliefs or conduct.” App.34a.
Because Petitioners remain “free[ ]” to “discuss[ ] the
topics raised in the [s]torybooks with their children”
and to “teach[ ] their children as they wish,” the court
found no First Amendment violation. App.35a.
The Fourth Circuit’s decision deepens a 5-1 split
under Yoder over whether forced instruction ever burdens parental rights under the Free Exercise Clause.
Five circuits now hold that—absent some “coercive effect”—Yoder essentially provides parents no protection once they place their children in the public system. As one circuit judge put it, outside the Establishment Clause, there is “no limitation on [a school’s]
power to require any curriculum, no matter how offensive.” By contrast, another circuit has recognized that,
under Yoder, forced instruction does burden parental
rights under the Free Exercise Clause.
The majority rule is inconsistent with Yoder itself,
which held that “the fundamental interest of parents * * * to guide the religious future and education
of their children” is “now established beyond debate.”
But it is also inconsistent with a long line of burden
cases—extending from Sherbert to Fulton—which hold
that even indirect pressure to forgo a religious practice
3
creates a religious burden. And the Fourth Circuit ignored, or got wrong, a string of other free-exercise
cases such as Bowen v. Roy, Espinoza v. Montana Department of Revenue, and Kennedy v. Bremerton
School District. The result is that, by demoting Yoder,
the Fourth Circuit and circuits aligned with it apply a
burden standard that effectively exempts public
schools, alone among government actors, from the
Free Exercise Clause.
The Fourth Circuit’s rule—that parents essentially
surrender their right to direct the religious upbringing
of their children by sending them to public schools—
contradicts centuries of our history and traditions.
Those traditions uphold what the decision below tears
down: parents’ right to protect their children’s innocence and direct their religious upbringing. Under the
Fourth Circuit’s reasoning, parents cannot be heard
until after the damage has been done to their children.
But there is no unringing that bell—by then, innocence will be lost and beliefs undermined.
The First Amendment “lies at the heart of our pluralistic society.” It cannot do its work if free-exercise
rights must be sacrificed by all who attend the nation’s
public schools. New government-imposed orthodoxy
about what children are “supposed” to think about
gender and sexuality is not a constitutional basis to
sideline a child’s own parents. The Court should grant
review.
4
OPINIONS BELOW
The Fourth Circuit’s opinion affirming the district
court’s denial of Petitioners’ motion for a preliminary
injunction is reported at 102 F.4th 191 and reproduced
at App.1a. The district court’s opinion denying Petitioners’ motion for a preliminary injunction is reported
at 688 F. Supp. 3d 265 and reproduced at App.76a. The
associated order denying the preliminary injunction is
unreported. App.155a.
JURISDICTION
The Fourth Circuit issued its opinion and judgment
on May 15, 2024. App.3a. This Court has jurisdiction
under 28 U.S.C. 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The First Amendment to the United States Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof[.]” U.S. Const. amend. I.
Maryland’s Code of Regulations requires “[e]ach local school system” to provide “comprehensive health
education” that includes “family life and human sexuality.” Md. Code Regs. §§ 13A.04.18.01(A), (C)(1)(c)
and (D)(2). The regulations also require schools to “establish policies, guidelines, and/or procedures for student opt-out regarding instruction related to family
life
and
human
sexuality
objectives,”
id.
§ 13A.04.18.01(D)(2)(e)(i), and to provide students
that opt-out “with appropriate alternative learning activities and/or assessments in health education,” id.
§ 13A.04.18.01(D)(2)(e)(ii). They also require local
5
school systems to “provide an opportunity for parents/guardians to view instructional materials to be
used in the teaching of family life and human sexuality objectives.” Id. § 13A.04.18.01(D)(2)(e)(iv).
STATEMENT OF THE CASE
I. Statutory Background
States have long guarded parents’ right to determine when and how their children are taught sensitive
subjects around gender and sexuality. Although modern public education has its roots in the nineteenth
century, “comprehensive sexual education curriculum” was not “formed and introduced” until the
1990s.1 Yet even with that sea change, the sensitive
nature of such instruction came with a longstanding
national consensus in favor of parental control. Today,
only three states mandate “comprehensive” sex education,2 with another 27 and the District of Columbia requiring some instruction.3
Jessica Fillak, The History of Sexuality Education in the
United States, Sexual Health Alliance, June 8, 2021,
https://perma.cc/BRL8-MSH3.
1
See SIECUS, State Profiles, https://perma.cc/V5QL-9MNG
(California, Oregon, Washington—each involving opt-outs, see
infra n.5); see also SIECUS, Guidelines for Comprehensive Sexuality Education, at 13-20 (3d ed. 2004), https://perma.cc/2QZB9SS9 (describing “comprehensive” sexuality education).
2
SIECUS, State Profiles, supra n.2; see also Guttmacher Institute, Sex and HIV Education, Table 1 (Sept. 1, 2023),
https://perma.cc/4FPY-ZEVY (arriving at a slightly lower figure).
3
6
All fifty states and the District of Columbia permit
certain aspects of sexual education.4 But of those jurisdictions, 38 require parental opt-outs.5 Four more
See SIECUS, Sex Ed State Law and Policy Chart (July 2022),
https://perma.cc/EM89-GU4C (recording 47 states and the District of Columbia); Idaho Code § 33-1608 (the “local school board”
may decide “whether or not any program in family life and sex
education is to be introduced in the schools”); S.D. Codified Laws
§ 13-33-6.1 (requiring “character development instruction” including “sexual abstinence” unless the appropriate body chooses
otherwise); Wyo. Stat. § 21-9-104 (authorizing instruction on
child sexual abuse in health class).
4
See Ala. Code §§ 16-40A-5, 16-41-6; Alaska Stat.
§§ 14.30.355(b)(7), 14.30.356(b)(6); Ark. Code § 6-16-1006(c); Cal.
Educ. Code § 51937; Colo. Rev. Stat. §§ 22-25-104(6)(d), 22-1128(3)(a), (4) and (5); Conn. Gen. Stat. § 10-16e; Fla. Stat.
§§ 1001.42(8)(c)(3), 1002.20(3)(d), 1003.42(5); Ga. Code § 20-2143(d); Haw. Dep’t of Educ., Bd. of Educ. Policy 103-5; Haw. Dep’t
of Educ., Bd. of Educ. Policy 101-13; Haw. Dep’t of Educ. Reg. No.
2210.1, https://perma.cc/6QAT-B6EL; Keith T. Hayashi, Superintendent, Haw. Dep’t of Educ., Annual Memorandum: Notice on
Board of Education Policy 101-13 Controversial Issues (June 23,
2023), in Opening of the School Year Packet for School Year 20232024, Haw. Dep’t of Educ. 61 (June 2023), https://perma.cc/T6DSXSWP; Idaho Code § 33-1611; 105 Ill. Comp. Stat. 5/27-9.1a(d);
Iowa Code § 256.11(6)(a); La. Stat. §§ 17:281(D), 17:412; Mass.
Gen.
Laws
ch.
71,
§ 32A;
Md.
Code
Regs.
§§ 13A.04.18.01(D)(2)(e)(i) and (iii); Me. Rev. Stat. tit. 22, § 1911;
Mich. Comp. Laws § 380.1507(4); Minn. Stat. § 120B.20; Mo.
Stat. § 170.015(5)(2); Mont. Code § 20-7-120; N.C. Gen. Stat.
§ 115C-81.30(b); Neb. Rev. Stat. § 79-532(3); N.H. Rev. Stat.
§ 186:11(IX-c); N.J. Stat. § 18A:35-4.7; N.M. Code R. § 6.29.6.11;
N.Y. Comp. Codes R. & Regs. tit. 8, § 135.3; Ohio Rev. Code
§ 3313.60(A)(5)(c), (d) and (f); Okla. Stat. tit. 70, § 11-103.3(C);
Or. Rev. Stat. § 336.465(1)(b); Or. Dep’t of Educ. Admin. R. 5815
7
states go still further, requiring a parental opt-in before children receive instruction. 6 And another six
states feature a combination of opt-out and opt-in
rights.7 In total, 47 states and the District of Columbia
provide for parental opt-out or opt-in protections related to sex education; only three states (Delaware and
the Dakotas) are silent on the matter. And no state has
gone so far as to bar such accommodations.
Maryland is among the majority of states that require parental opt-outs. Its “Health Education” regulation requires all local schools to establish “procedures for student opt-out regarding” any “instruction
related to family life and human sexuality objectives”
(other than “menstruation”). Md. Code Regs.
§§ 13A.04.18.01(D)(2)(e)(i) and (iii).
022-2050(5); Or. Dep’t of Educ. Admin. R. 581-021-0009; 22 Pa.
Code §§ 4.29(c), 4.4(d)(3); R.I. Gen. Laws §§ 16-22-17(c), 16-2218(c), 16-22-24(b); S.C. Code. § 59-32-50; Va. Code. § 22.1-207.2;
Vt. Stat. tit. 16, § 134; Wash. Rev. Code. § 28A.230.070(4); Wis.
Stat. §§ 118.019(3) and (4); W. Va. Code § 18-2-9(c); D.C. Mun.
Regs. subtit. 5, § E2305.5.
See Ky. Rev. Stat. § 158.1415(1)(e); Miss. Code § 37-13-173;
Nev. Rev. Stat. § 389.036(4); Wyo. Stat. § 21-9-104(b).
6
See Ariz. Rev. Stat. §§ 15-711(B), 15-716(E); Ind. Code § 2030-5-17(c), (d); Kan. Admin. Regs. § 91-31-35(a)(6); Kan. Dep’t of
Educ., Frequently Asked Questions about Health Education in
Kansas (2018), https://perma.cc/JTW9-8FUH; Kan. Dep’t of
Educ., Kansas Model Curricular Standards for Health Education
2018, Appendix A, https://perma.cc/TNA9-8ENE; Tenn. Code
§§ 49-6-1305, 49-6-1307, 49-6-1308; Tex. Educ. Code § 28.004(i)
and (i-2); Utah Code §§ 53E-9-203(3), 53G-10-205, 53G-10-403.
7
8
Montgomery County is the most religiously diverse
county in the United States.8 Consistent with that diversity, the Board’s 2022-2023 Religious Diversity
Guidelines provided even broader accommodations
than Maryland law or the national consensus. Those
Guidelines allowed opt-outs from any “classroom discussions or activities that [parents or students] believe
would impose a substantial burden on their religious
beliefs.” App.220a-221a. Schools were directed to “try
to make reasonable and feasible adjustments to the instructional program to accommodate requests from
students.” App.220a. Schools retained discretion, however, to deny accommodations “if such requests become too frequent or too burdensome.” App.221a.
II. Factual Background
A. Petitioners’ religious beliefs
Petitioners Tamer Mahmoud and Enas Barakat reside in Montgomery County, Maryland, with their
children, including a son in elementary school.
App.529a. Respect for “God’s wisdom in creation” lies
at the heart of their Islamic faith. App.531a. This includes a religious conviction that “‘gender’ cannot be
unwoven from biological ‘sex’” without “rejecting the
dignity and direction God bestowed on humanity from
the start.” App.530a. They believe their children will
“attain their fullest God-given potential by embracing
their biological sex.” App.531a.
Aleja Hertzler-McCain, Montgomery County, Maryland, was
most religiously diverse US county in 2023, Religion News Service, Aug. 30, 2024, https://perma.cc/86PU-3QLA.
8
9
For Mahmoud and Barakat, this is a sacred obligation. It underlies their beliefs regarding the importance of marriage and sexuality for “creating children and teaching them virtue—not only to build a loving family but also to serve as an example of righteousness for society at large.” App.530a (citing Surah AlFurqan 25:74). To avoid confusing these matters, their
Islamic faith forbids them from “exposing [their] impressionable, elementary-age son to activities and curriculum on sex, sexuality, and gender that undermine
Islamic teachings.” App.532a (citing Surah Al-An’am
6:68-69). After the district court rejected their right to
excuse their son from such instruction, they felt religiously compelled to remove their son from public
school pending appeal.
Petitioners Chris Persak and Melissa Persak are
Roman Catholic and have two elementary-age children in the Montgomery County Public Schools.
App.542a. They believe that “a person’s biological sex
is a gift bestowed by God that is both unchanging and
integral to that person’s being.” App.543a. They have
a religious obligation to teach their children about the
“immutable sexual differences between males and females, the biblical way to properly express romantic
and sexual desires, and the role of parents to love one
another unconditionally and sacrificially within the
confines of biblical marriage.” Ibid.
These beliefs are foundational to their religious understanding of the importance of “creat[ing] and sustain[ing] a family,” which is “not only necessary for
raising the next generation of children” but also for
“human flourishing and happiness.” App.543a (citing
Genesis 1:28; John 8:51, 14:21, 15:10). Because elementary-age children “are highly impressionable to
10
ideological instruction presented in children’s books or
by schoolteachers,” their faith compels them to avoid
instruction that undermines their religious beliefs on
gender and sexuality. App.544a.
Petitioners Jeff Roman and Svitlana Roman are
Roman Catholic and Ukrainian Orthodox, respectively. They reside in Montgomery County with their
elementary-age son. They believe that gender and biological sex are “intertwined and inseparable,”
App.537a-538a, and “an integral part of God’s design,”
App.536a (citing 1 Thessalonians 5:23; Catechism of
the Catholic Church, cc. 362-368). They have a religious obligation to help their son “accept [his] own
body as it was created” and to “attain [his] fullest Godgiven potential by embracing [his] biological sex.”
App.537a-538a.
They accept Roman Catholic teaching that during
“‘the years of innocence’ from about five years of age
until puberty,” children “must never be disturbed by
unnecessary information about sex.” App.539a (quoting Pontifical Council for the Family, The Truth and
Meaning of Human Sexuality: Guidelines for Education within the Family, 78 (Dec. 8, 1995)). Especially
while their young son inherently “loves” and “implicitly trusts” his teachers, the Romans have a religious
obligation not to expose him to instruction that could
confuse his religious understanding of gender and sexuality. App.540a-541a. After the district court rejected
their right to protect their son from such instruction,
they felt religiously compelled to remove him from
public school pending appeal.
Petitioner Kids First is an unincorporated association formed to protect parental opt-out rights in the
Montgomery County schools. It includes hundreds of
11
parents of diverse faiths, all of whom—like the named
families—have a religious obligation not to expose
their young children to instruction on gender and sexuality that violates their religious beliefs. App.163a,
App.168a.
One of those parents is Grace Morrison. Morrison
and her husband adopted their youngest daughter,
who has Down Syndrome and Attention Deficit Disorder, from Ukraine. App.624a. Because of her disabilities, their daughter’s capacity to make independent
judgments is impaired, making her particularly impressionable. App.644a-645a. To know when the Pride
storybooks would be read to their daughter, the Morrisons asked her teacher for a curriculum schedule.
App.648a. They were refused and informed that, although they could know what would be presented, they
could not know when. Ibid. After the district court rejected their right to protect their daughter from such
instruction, the Morrisons were religiously compelled
to remove her from public school, at a cost of $25,000
a year in “therapy and * * * academic services and
supplies” that their daughter previously could access
through the public schools. App.648a-649a.
B. The Pride storybooks
In November 2022, the Board introduced for the
first time “LGBTQ-inclusive” storybooks for students
in elementary school, with corresponding guidance for
teachers. App.272a, see also App.273a-275a. It told
employees responsible for selecting the books to review options through an “LGBTQ+ Lens” and to ask
whether “stereotypes,” “cisnormativity,” and “power
hierarchies” are “reinforced or disrupted.” App.622a.
12
One of the books, Pride Puppy, is a picture book directed to three- and four-year-olds that describes a
Pride parade and what a child might find there.
App.234a, App.254a-271a. The book invites students
to search for various images, including “underwear,”
“leather,” “lip ring,” “[drag] king” and “[drag] queen,”
and “Marsha P. Johnson,” a controversial LGBTQ activist and sex worker. App.270a (brackets in original).
Intersection Allies, a picture book intended for
“Kindergarten through Grade 5,” invites children to
ponder what it means to be “transgender” or “non-binary” and asks “[w]hat pronouns fit you?” App.236a,
App.350a. By “standing together,” the book claims, we
will “rewrite the norms.” App.345a.
In yet another book, What Are Your Words?, an uncle visits to comfort a niece/nephew, whose pronouns
are “like the weather. They change depending on how
I feel.” App.548a, App.552a. The child spends the day
agonizing with friends and neighbors over the right
pronouns. App.553a-561a. Only at the end of the day,
while watching fireworks, does the child finally conclude that “I’m like fireworks! * * * My words finally
found me! They and them feel warm and snug to me.”
App.562a. At least for “today.” App.564a.
Another, Love, Violet, also for “Kindergarten
through Grade 5,” is about a same-sex playground romance. App.239a, App.429a-447a. Teachers are invited to have a “think aloud” moment with students to
ask how it feels when they “don’t just ‘like’” but “like
like” someone. App.275a.
Born Ready, for all elementary ages, tells the story
of a biological girl named Penelope who identifies as a
boy. App.240a,App.448a-482a. When Penelope’s
13
brother questions how someone can “become” a boy,
his mother chides him that “[n]ot everything needs to
make sense. This is about love.” App.465a. Teachers
are told to instruct students that, at birth, people
“guess about our gender,” but “[w]e know ourselves
best.” App.630a-631a, App.276a.
Finally, Jacob’s Room to Choose is about two young
children who identify as transgender. App.565a-580a.
Their teacher uses a game to persuade their classmates to support gender-free bathrooms. App.572a576a. After relabeling the bathroom doors to welcome
multiple genders, the children parade with placards
that proclaim “Bathrooms Are For Every Bunny” and
“[choose] the bathroom that is comfy 4 u.” App.578a.
Along with the storybooks, the Board issued guidance that directs teachers to emphasize that “not everyone is a boy or girl” and that “[s]ome people identify
with both, sometimes one more than the other and
sometimes neither,” so students “shouldn’t” “guess”
but instead solicit others’ “pronouns.” App.631a-632a.
The guidance directs teachers to frame disagreement
with these ideas as “hurtful,” App.630a, 634a, and to
“[d]isrupt the either/or thinking” of students,
App.629a, App.633a.
In correspondence obtained through a Maryland
Public Information Act request, App.612a, the Board’s
own elementary school principals objected to the storybooks. App.614a-615a. In their view, the books “support the explicit teaching of gender and sexuality
identi[t]y,” invite “shaming comment[s]” toward students who disagree, “[s]tate[ ] as * * * fact” things
that “[s]ome would not agree” are facts, and are “dismissive of religious beliefs.” App.619a-621a. The principals also found it “problematic to portray elementary
14
school age children falling in love with other children,
regardless of sexual preferences.” App.617a.
The Board nonetheless requires teachers to read at
least one of the books to their students each year.
App.137a n.12, App.89a-90a, App.273a. The Board
“do[es]n’t dispute” that the books must be read and has
conceded that “there will be discussion that ensues.”
App.642a, App.161a, App.184a; see also National Education Association et al. C.A. Amicus Br. 7-8, 2023
WL 7296671 (first- and second-grade MCPS teachers
admitting to reading and discussing the books with
their students). The Board further admits that “[a]ny
child * * * may come away from [the] instruction
with a new perspective not easily contravened by their
parents.” Defs.’ Resp. to Suppl. Br. 4, D. Ct. Doc. 54
(Aug. 15, 2023).
C. The Board’s notice and opt-out ban
Consistent with its Religious Diversity Guidelines,
throughout most of the 2022-2023 school year, the
Board honored parental opt-outs as to the storybooks.
App.533a-534a, App.540a, App.544a-545a, App.185a187a, App.497a-498a. Indeed, on March 22, 2023, the
Board issued a public statement making clear that “[i]f
a parent chooses to opt out, a teacher can find a substitute text for that student that * * * aligns with
curriculum.” App.184a, App.662a.
But the next day, with no explanation, the Board
reversed course. It issued a public statement announcing that, beginning with the new school year,
“[s]tudents and families may not choose to opt out” and
will not be informed when “books are read in the future.” App.185a, App.657a. The statement affirmed,
however, that students could continue opting out of
15
the “Family Life and Human Sexuality Unit of Instruction,” ibid.—i.e., the sex education unit of their
health courses, which are taught in both elementary
and high school. And because of the Religious Diversity Guidelines, students were still permitted to opt
out of any other instruction that violated their religious beliefs. App.81a-82a, App.220a-221a. Only the
Pride storybooks were excluded.
Within weeks of the Board’s reversal, over 1,100
parents signed a petition asking the Board to restore
their notice and opt-out rights.9 Hundreds of people—
“largely * * * Muslim and Ethiopian Orthodox parents”—claimed “the school system is violating their religious rights protected under the First Amendment.”10 Board members responded by publicly accusing them of promoting “hate” and comparing them to
“white supremacists” and “xenophobes.” App.103a,
App.107a, App.187a; see also App.514a (“dehumanizing form of erasure”).
Ismail Allison, Over 1,000 Maryland Parents, Community
Members Urge MCPS to Restore Curriculum Opt-Out Option and
Parental Notice, Dialogue with Families, Council on AmericanIslamic Relations (Apr. 17, 2023), https://perma.cc/JH3S-LQKG.
9
Nicole Asbury & Katie Shepherd, Hundreds of Maryland parents protest lessons they say offend their faith, Washington Post,
June 27, 2023, https://perma.cc/MJ2Q-BXTW (first photograph
below); Zainab Chaudry, Montgomery parents want an opt-out on
gender education restored, Washington Post, July 17, 2023,
https://perma.cc/CB3L-3DES (second photograph below).
10
16
Months later and in response to this lawsuit, the
Board revised its Religious Diversity Guidelines to
state that the Board “cannot accommodate requests
for exemptions from required curricular instruction or
the use of curricular instructional materials based on
religious, and/or other, objections.” App.672a. Optouts are still permitted, however, for “noncurricular
activities” or “free-time events” that “conflict with a
family’s religious, and/or other, practices.” Ibid.
17
Under Maryland law, parents are required by penalty of law to keep their children in public school unless they have capacity to send them to private school
or to homeschool. Md. Code Educ. §§ 7-301(a-1)(1) and
(e)(1)-(2).
D. The proceedings below
Stripped of their opt-out rights, Petitioners sued
and moved for a preliminary injunction. After a hearing, the district court denied the motion, holding that
Petitioners were unlikely to succeed because they
could not show “that the no-opt-out policy burdens
their religious exercise.” App.114a.
Petitioners immediately sought an injunction
pending appeal from the Fourth Circuit. The court denied the motion but ordered expedited briefing on the
underlying merits.
A divided panel affirmed the district court’s ruling.
The majority found no free-exercise burden because
there was “no evidence at present” that Petitioners
were “compel[led] * * * to change their religious beliefs or conduct” or “what they teach their own children.” App.34a (emphasis in original). Nor were they
“asked to affirm views contrary to their own” or to
“change how they feel about” gender and sexuality.
Ibid. Absent such “coercive effect,” the court held there
could be no religious “burden.” App.36a. Petitioners,
the court reasoned, remained “free[ ]” to “discuss[ ] the
topics raised in the [S]torybooks with their children”
and to “teach[ ] their children as they wish.” App.35a.
The majority also found Yoder inapplicable, because
“in the decades since it was decided,” it has been
18
“markedly circumscribed,” and given a “limited holding” based on its “unique record” and “singular set of
facts.” App.37a-39a.
Petitioners had also argued that their free-exercise
rights were burdened under the unconstitutional conditions line of cases from Sherbert to Fulton, because
the Board forced them to relinquish control over when
their children are taught about gender and sexuality
as the price of attending public schools. But the court
ignored this argument, as well as Petitioners’ argument that application of the opt-out ban was not neutral or generally applicable.
Judge Quattlebaum dissented. First, he stated that
“burdening the exercise of religion is not limited to direct coercion.” App.59a. Rather, under the Sherbert
line of cases, religious liberty “protects [against] less
direct religious burdens” and “may be infringed by the
denial of or placing of conditions upon a benefit or privilege.” App.63a, App.60a. In his view, “the board’s actions put the parents in a very similar position” by preventing them “from exercising * * * aspects of their
faith if they want their children to obtain a public education.” App.63a. Because the no-opt-out policy
forced parents “to either live out their faith or forego
the public benefit,” their religious exercise was burdened. App.66a.
Judge Quattlebaum also concluded that the
Board’s approach was not neutral or generally applicable. Its own Religious Diversity Guidelines retained
“discretion to grant religious opt-out requests.”
App.68a. And “throughout much of the 2022/2023
school year,” the Board in fact did grant “opt-out requests with respect to the [challenged] texts.” Ibid.
19
The dissent further emphasized that Maryland law requires “notice and opt-out procedures for all ‘family life
and human sexuality’ instruction,” and there was
“nothing in the Maryland regulations that would permit the [B]oard to avoid [that] requirement * * * just
by adding instruction in that area to other classes.”
App.70a-71a.
Having found that strict scrutiny applied, Judge
Quattlebaum concluded it could not be met. App.72a73a. He therefore would have granted a preliminary
injunction. App.75a.
Without analyzing religious burden under the
Sherbert line of cases, or addressing neutrality and
general applicability, the majority remanded to the
district court for further proceedings. The Board has
since moved in the district court to dismiss on the
ground that the complaint purportedly does not allege
a “coercive effect” as required by the Fourth Circuit’s
majority opinion. App.36a.
REASONS FOR GRANTING THE PETITION
I. The decision below deepens a 5-1 split over
whether forced participation in public school
instruction can create a free-exercise burden.
The lower courts are now split 5-1 over whether
compelled participation in public school instruction
burdens the religious exercise of objecting parents.
The First, Second, Fourth, Sixth, and Seventh Circuits
say it does not, instead requiring “direct coercion” or
“compulsion.” The Eighth Circuit has said that compelled instruction alone is sufficient to create a freeexercise burden.
20
A. Five
circuits
hold
that
forced
participation in public school instruction
cannot alone burden free exercise.
In Parker v. Hurley, parents of an elementary-age
child sought notice and opt-outs regarding the classroom reading of books that “depict[ed] and celebrate[d]” gay marriage. 514 F.3d 87, 106, 90 (1st Cir.
2008). The First Circuit held that even though the parents’ “sincerely held religious beliefs were deeply offended,” there was no “constitutionally significant burden on [their] rights.” Id. at 99. Having “chosen to
place their children in public schools,” the parents
could not bring a claim absent evidence of what the
court called “direct coercion.” Id. at 100, 105. Requiring children to “sit through a classroom reading” that
“was precisely intended to influence” their views on
gay marriage was deemed insufficient. Id. at 106. The
parents had to show a heightened level of “indoctrination” or a “constant stream of like materials.” Ibid.; see
also Brown v. Hot, Sexy & Safer Prods., Inc., 68 F.3d
525, 529 (1st Cir. 1995) (no parental right to shield
children from “sexually explicit monologues,” “simulated masturbation,” or presentation where adult had
a “male minor lick an oversized condom with her”).
The Second, Sixth, and Seventh Circuits have
reached similar conclusions. In Leebaert v. Harrington, 332 F.3d 134 (2d Cir. 2003), the Second Circuit
rejected a father’s free-exercise challenge to his son’s
mandatory participation in health curriculum—which
conflicted with his belief that “sex before marriage”
was inappropriate—because there was no “irreconcilable * * * clash” and no threat to “his community’s
entire way of life” as in Yoder. Id. at 144-145. In Mozert
v. Hawkins County Board of Education, 827 F.2d 1058
21
(6th Cir. 1987), a case challenging an assigned “reader
series,” the Sixth Circuit found no First Amendment
burden because students were “not required” to “deny
a belief or engage * * * in a practice prohibited * * * by their religion.” Id. at 1070. It held that
“without compulsion to act, believe, affirm or deny,”
there could not be an unconstitutional burden. Id. at
1067. And in Fleischfresser v. Directors of School District 200, 15 F.3d 680 (7th Cir. 1994), the Seventh Circuit found “no coercion” where “use of [a reading] series” did not preclude parents from “meeting their religious obligation to instruct their children” and did
not compel them or their children “to do or refrain from
doing anything of a religious nature.” Id. at 690.
In a concurring opinion in Mozert, Judge Boggs
conceded that forcing students to “study the books”
was compelled “‘conduct’ contrary to their beliefs.”
Mozert, 827 F.2d at 1078 (Boggs, J., concurring). He
recognized that, “[i]n any sensible meaning” of the
term, the burden here was “greater than in Thomas [v.
Review Board, 450 U.S. 707 (1981)] or Sherbert,” because it meant “many years of education, being required to study books that * * * systematically undervalue, contradict and ignore [the parents’ and their
children’s] religion.” Id. at 1079. Yet despite the
“strong[ ] economic compulsion” in forcing parents to
choose between public schooling and their religious beliefs, Judge Boggs found no free-exercise violation,
concluding that, beyond the Establishment Clause,
there is “no limitation on [a school’s] power to require
any curriculum, no matter how offensive or one-sided.”
Id. at 1073.
22
The Fourth Circuit has now joined these circuits in
holding that, absent a “coercive effect” causing “children to change their religious beliefs or conduct,”
App.36a, App.34a, parents have no recourse when
their children are forced to participate in classroom instruction against their religious beliefs.
B. The Eighth Circuit holds that forced
participation in public school instruction
may alone burden religious exercise.
The Eighth Circuit rejects the majority view. In
Florey v. Sioux Falls School District 49-5, the Eighth
Circuit addressed Free Exercise Clause and Establishment Clause challenges to a school policy regarding
observance of religious holidays. 619 F.2d 1311, 1313
& n.2 (8th Cir. 1980). Under the Establishment
Clause, the court ruled that the policy did “not unconstitutionally entangle the * * * school district in religion or religious institutions.” Id. at 1318. But under
the Free Exercise Clause, the court agreed that “forcing any person to participate in an activity that offends his religious or nonreligious beliefs will generally contravene the Free Exercise Clause[.]” Id. at
1318-1319 (citing Yoder). The court found no violation
in that case, however, because the challenged policy
“expressly provided that students may be excused
from activities authorized by the rules if they so
choose.” Id. at 1319.11
In a due process case, the Third Circuit—referring to the
proto-free-exercise “Meyer-Pierce rubric”—similarly rejected the
11
23
While the Eight Circuit stands alone, it has the advantage of being right. Its approach aligns with the
national statutory consensus in favor of religious optouts for sexual education. Supra at 6-7. It also aligns
with how religious burdens have been analyzed in
every one of this Court’s analogous free-exercise cases.
Considering the other circuits’ misreading of that
precedent, beginning with Yoder, and the split’s duration and obstinance—not to mention the importance of
the underlying issues—the Court should intervene to
close the divide.
II. The decision below conflicts with this Court’s
free-exercise jurisprudence.
The Fourth Circuit’s “coercive effect” standard misreads Yoder. But it also ignores or misapplies every
free-exercise decision by this Court that has followed.
The result is a double standard under which religious
burdens are more difficult to prove against public
schools than against any other government agency.
Such selective deference would be problematic anywhere but is especially harmful where it involves the
state’s ability to interfere with traditional parental authority to direct children and educate them about gender and sexuality.
conclusion that if a “parent chose to send their children to public
school” a parental rights claim must “fail.” C.N. v. Ridgewood Bd.
of Educ., 430 F.3d 159, 185 n.26 (3d Cir. 2005); see also Tatel v.
Mt. Lebanon Sch. Dist., 637 F. Supp. 3d 295, 302, 335 (W.D. Pa.
2022) (applying Ridgewood to allow a free-exercise challenge to
transgender instruction where parents lacked “notice and opt out
rights”). And in a post-Yoder, pre-Smith case, the Sixth Circuit
originally landed on this side of the split as well. Spence v. Bailey,
465 F.2d 797 (6th Cir. 1972) (finding free-exercise burden from
forced classroom participation).
24
A. The decision below misreads Yoder.
The Fourth Circuit’s decision cannot be reconciled
with Yoder.
This Court has “long recognized the rights of parents to direct ‘the religious upbringing’ of their children.” Espinoza v. Montana Dep’t of Revenue, 591 U.S.
464, 486 (2020); id. at 525 (Breyer, J., dissenting); see
also Employment Div. v. Smith, 494 U.S. 872, 881-882
(1990) (“hybrid situation”). Wisconsin v. Yoder upheld
this “enduring American tradition” against a “relatively recent development” in “compulsory education,”
where the state was at the “very apex” of its power.
406 U.S. 205, 232, 226, 213 (1972). The Court reasoned
that “exposing Amish children to worldly influences”
that “substantially interfer[ed] with [their] religious
development * * * at the crucial adolescent stage”
was a cognizable free-exercise burden. Id. at 218. That
standard ought to apply even more forcefully with preadolescent children in elementary school.
Instead, the decision below demotes Yoder into an
Amish one-off. It denigrates Yoder as a “limited holding,” applying “a narrower principle to a singular set
of facts,” claiming it is “essentially sui generis.”
App.38a-39a. But nothing in Yoder requires those limits, and by imposing them, the Fourth Circuit creates
myriad problems.
First, the decision below violates the traditional
“reluctanc[e] to directly force instruction of children ‘in
opposition to the will of the parent.’” Yoder, 406 U.S.
at 226 n.14 (quoting Letter from Thomas Jefferson to
Joseph Cabell, Sept. 9, 1817, in 17 Writings of Thomas
Jefferson 417, 423-424 (Mem. ed. 1904)). For sex education in particular, there is a longstanding national
25
consensus that instruction should not proceed absent
parental permission. Supra at 6-7. “Nor is there a basis for deference” to the Board’s break from the consensus—especially given that it “historically and routinely allowed” notice and opt-outs. Ramirez v. Collier,
595 U.S. 411, 429 (2022).
Second, limiting Yoder to its “singular set of facts”
invites religious discrimination by suggesting that
every other free-exercise claim in the public school
context must be judged against the “unusual degree of
separation from modern life that the Amish religious
faith compels.” App.38a. See, e.g., Mozert, 827 F.2d at
1067 (“dramatic[ ] * * * difference between Yoder
and the present case”); Leebaert, 332 F.3d at 144 (no
“irreconcilable Yoder-like clash”). Such comparisons
raise “serious concerns about state entanglement with
religion and denominational favoritism.” Carson v.
Makin, 596 U.S. 767, 787 (2022).
Finally, by reducing Yoder to the vanishing point,
the decision below inevitably creates conflict with “a
fundamental principle of preliminary injunctions: An
injunction is of no help if one must wait to suffer injury
before the court grants it.” Texas v. United States, 809
F.3d 134, 173 n.137 (5th Cir. 2015). Here, the Fourth
Circuit found that, absent a “coercive effect,”—i.e., unless their children are forced “to change their religious
beliefs or conduct”—parents have no First Amendment remedy. App.36a, App.34a. But if Yoder means
parents must simply accept the government’s efforts
to “[d]isrupt” their children’s religious development as
the price of public education, App.629a, App.633a,
then a later injunction won’t help, Nken v. Holder, 556
U.S. 418, 428 (2009) (purpose of preliminary injunction is to “prevent[ ] some action” before its legality can
26
be “conclusively determined”). It is hard to imagine an
injury more irreparable than a child’s lost innocence.
And with Yoder and the Free Exercise Clause sidelined, so are parents trying to exercise their traditional rights to guide their children.
B. The decision below conflicts with freeexercise precedents from Sherbert to
Kennedy.
The Yoder error is not the only one. The decision
below also conflicts with multiple other of the Court’s
core free-exercise rulings.
1. Start with Sherbert, where the plaintiff Seventh-day Adventist was “discharged” because “she
would not work on Saturday.” Sherbert v. Verner, 374
U.S. 398, 399 (1963). The state denied her unemployment benefits, and then argued the denial imposed no
burden—because it did not “in any way prevent” her
from “observ[ing] her religious beliefs.” Id. at 401. This
Court rejected that argument, holding that although
the pressure was “indirect,” denying benefits “force[d]”
the plaintiff to “choose between following the precepts
of her religion and forfeiting benefits” or “abandoning
one of the precepts of her religion * * * to accept
work.” Id. at 404. This put “the same kind of burden
upon the free exercise of religion as would a fine.” Ibid.
The Sherbert standard was upheld and applied in
Thomas, which similarly found a free-exercise burden
based on “substantial pressure” to “modify * * * behavior” from denying the plaintiff unemployment benefits after he quit his job for religious reasons. Thomas,
450 U.S. at 717-718. The same standard was reaffirmed in Fulton, which found a free-exercise burden
where Philadelphia put Catholic Social Services “to
27
the choice of curtailing its mission [in foster care] or
approving relationships inconsistent with its beliefs.”
Fulton v. City of Philadelphia, 593 U.S. 522, 532
(2021); see also App.60a-61a (Quattlebaum, J., dissenting) (recounting this Court’s 60-year history of
protecting religious expression from impermissible
“conditions upon a benefit or privilege”).
Here, the Board “put the parents in a very similar
position,” App.61a (Quattlebaum, J., dissenting), but
the Fourth Circuit failed to recognize it. Petitioners
“face that choice” to “either live out their faith or forego
the public benefit.” App.66a. It doesn’t matter that
they can still “observe” other aspects of their faith,
Sherbert, 374 U.S. at 401, such as “teach[ing] their religious beliefs at home,” App.63a. Having been denied
notice and opt-outs “they must either forego a public
education or violate their deeply held religious beliefs.” App.61a.
By using Yoder to sidestep Sherbert, the Fourth
Circuit gave public schools a pass on its “unlawful conditions” standard, see 374 U.S. at 404-406, which
would have triggered a finding of religious burden in
any other public program.
2. The decision below also conflicts with Bowen v.
Roy, 476 U.S. 693 (1986). There, the plaintiff believed
that any use of a social security number for his daughter would “rob” her spirit and “prevent her from attaining greater spiritual power.” Id. at 696. In the first
(and more familiar) holding of Bowen, the Court concluded that the Free Exercise Clause did not prevent
the government from itself assigning and using a number for the daughter. Id. at 699 (Free Exercise Clause
does not require government to “conduct its own internal affairs” to “comport with the religious beliefs of
28
particular citizens”). But whether the daughter could
herself be compelled to use the number “pose[d] very
different constitutional problems.” Id. at 720 (Stevens,
J., concurring in part and in judgment). And “five
Members of the Court agree[d]”—to the extent the issue
was
not
moot—that
“Sherbert
and
Thomas * * * control[led]” that analysis.” Id. at 731
(O’Connor, J., concurring in part and dissenting in
part); see also id. at 733 (White, J., dissenting) (similar).
The Fourth Circuit misapplied Bowen to hold that
“public school curriculum choices” are the Board’s
“own internal affairs” and thus “outside the scope of
the Free Exercise Clause.” App.40a. But Petitioners
have not challenged the selection or use of any curricula. They ask only to excuse their own children from
the classroom when certain books are read and discussed in class. See Fulton, 593 U.S. at 542 (“CSS
seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner
consistent with its religious beliefs; it does not seek to
impose those beliefs on anyone else.”). Bowen confirms
that, but for the distortion of Yoder, the normal burden
standard would have applied. See also Fulton, 593
U.S. at 536 (“[The Court] ha[s] never suggested that
the government may discriminate against religion
when acting in its managerial role.”).
3. The Fourth Circuit’s ruling also runs afoul of
Espinoza v. Montana Department of Revenue, 591 U.S.
464 (2020), which involved “a program to provide tuition assistance to parents who send their children to
private schools.” Id. at 467-468. The Montana Supreme Court struck down the program under the State
Constitution’s “no-aid” provision, “which prohibits any
29
aid to a school controlled by a ‘church, sect, or denomination.’” Id. at 468. This Court reversed, holding that
the program’s eligibility requirements—which required a school to “divorce itself from any religious
control or affiliation,” id. at 478—would “‘inevitably
deter[ ] or discourage[ ] the exercise of First Amendment rights,’” ibid. (quoting Trinity Lutheran Church
of Columbia, Inc. v. Comer, 582 U.S. 449, 463 (2020)
and Sherbert, 374 U.S. at 405). The Free Exercise
Clause prohibited such “indirect coercion.” Ibid.
That same pressure to “divorce” themselves from
their religious obligations is imposed on Petitioners by
the Board’s ban on notice and opt-outs. Forced to
choose between the public schools and their religious
duty not to expose their children to ideological instruction on gender and sexuality, Petitioners are “inevitably * * * discourage[d]” from exercising their First
Amendment rights. Espinoza, 591 U.S. 464 at 478. But
under the Fourth Circuit’s decision, “the rights of parents to direct ‘the religious upbringing’ of their children,” including “by sending [them] to religious
schools,” id. at 486, does not extend to those who use
the public schools.
4. Finally, the decision below also conflicts with
Kennedy v. Bremerton School District, 597 U.S. 507
(2022). There, the Court held that “a plaintiff may
carry the burden of proving a free-exercise violation in
various ways, including by showing that a government
entity has burdened his sincere religious practice pursuant to a policy that is not ‘neutral’ or ‘generally applicable.’” Id. at 525. Respondents come nowhere close
to meeting this standard.
30
The Board allowed opt-outs unconditionally—until
it didn’t. App.184a, App.657a. It said students, including high schoolers, could opt out of sex ed, but that elementary school kids cannot opt out of the storybooks.
App.185a, App.657a. That kind of stop-start, wildly
uneven policy is a far cry from “generally applicable.”
Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520, 543-546 (1993). As justification, the
Board cited its Religious Diversity Guidelines, which
allow schools to “refuse to accommodate” if “requests
become too frequent or too burdensome.” App.221a.
But that “discretion” itself destroys general applicability. Fulton, 593 U.S. at 535. Nor could the Board’s policy be called neutral when accompanied by accusations
of “hate,” “white supremac[y],” and “xenophob[ia].”
App.103a, App.107a, App.187a, App.514a; Masterpiece
Cakeshop v. Colorado C.R. Comm’n, 584 U.S. 617, 634636 (2018).
Yet here, because it found no burden under Yoder,
the Fourth Circuit did not even consider these free-exercise “minimum[s].” Lukumi, 508 U.S. at 532. Kennedy makes clear that there are “various ways” in
which “a plaintiff may carry the burden of proving a
free exercise violation.” 597 U.S. at 525. But because—
for the Fourth Circuit—Yoder isn’t one of them, neither were lack of neutrality and general applicability.
That is wrong.
III. The petition presents a pressing question of
nationwide importance.
The decision below upends “the spirit of practical
accommodation that has made the United States a Nation of unparalleled pluralism and religious tolerance.” Salazar v. Buono, 559 U.S. 700, 723 (2010)
31
(Alito, J., concurring in part and concurring in judgment). Some parents exercise their right to “direct ‘the
religious upbringing’ of their children” by “sending
their children to religious schools.” Espinoza, 591 U.S.
at 486 (quoting Yoder, 406 U.S. at 213-214, 232). But
“[m]ost parents, realistically, have no choice but to
send their children to a public school.” Morse v. Frederick, 551 U.S. 393, 424 (2007) (Alito, J., concurring).12
Once there, parents normally have “little ability to influence what occurs in the school.” Morse, 551 U.S. at
424 (Alito, J., concurring).
It is critically important for these parents—and for
the Religion Clauses’ “spirit of practical accommodation”—that the Free Exercise Clause continue to apply
in the public school context in a way that both ensures
parental rights and is consistent with free-exercise jurisprudence elsewhere. By restricting application of
the Free Exercise Clause, the court below and others
like it have carved out a public-school-shaped hole to
the rule that governs how free-exercise burdens are assessed in every other factual context.13
But public schools, like any other state or federal
agency, are government authorities subject to constitutional constraints. See, e.g., Sheetz v. County of El
More than 80% of the nation’s students attend traditional
public schools. Katherine Schaeffer, U.S. public, private and
charter schools in 5 charts, Pew Research Center, June 6, 2024,
https://perma.cc/64P4-HJ52.
12
This disparity extends to cases decided under the Due Process
Clause, the practical effect of which is that the right of parents
there “does not extend beyond the threshold of the school door.”
California Parents for the Equalization of Educ. Materials v. Torlakson, 973 F.3d 1010, 1020 (9th Cir. 2020).
13
32
Dorado, 601 U.S. 267, 279 (2024) (under Sherbert, unconstitutional conditions doctrine prohibits “[f]ailing
to give like treatment” to religious exercise). Holding
otherwise leaves religious parents—especially those
with no access to private education or capacity to
homeschool—without constitutional protection.
The Fourth Circuit’s deference to public school policymaking is particularly dubious when it comes to instruction on family life and human sexuality. Whether
parents should have the primary role on that instruction has nothing to do with a school board’s “technical
subject matter expertise.” Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2267 (2024). Rather it follows
from the “‘enduring American tradition’” of parental
religious control over a child’s upbringing. Espinoza,
591 U.S. at 486 (quoting Yoder, 406 U.S. at 232). Indeed, on no other subject is there such longstanding,
nationwide consensus requiring parental consent before schools provide instruction. Supra at 6-7 But the
Board seeks to subvert that consensus, claiming that
education issues “of all stripes trigger deference.”
Loper, 144 S. Ct. at 2267; compare App.643a (Board’s
counsel stating that “[o]nce professional educators
make a decision to include this in the curriculum,” federal courts should not be involved). This Court rightfully rejected that approach 80 years ago when it abandoned Minersville School District v. Gobitis, 310 U.S.
586, 599 (1940), and instead found that the Bill of
Rights was judicially enforceable, particularly against
the orthodoxies of the day, West Virginia State Bd. of
Educ. v. Barnette, 319 U.S. 624 (1943).
This is critical for children in pre-kindergarten
through fifth grade—and especially children with spe-
33
cial needs—who are highly impressionable and instinctively trusting of authority figures like teachers.
“The better presumption” is that parents do their “ordinary job”—forming their children on such sensitive
issues. Loper, 144 S. Ct. at 2267; see also Parham v.
J.R., 442 U.S. 584, 602 (1979) (“The law’s concept of
the family rests on a presumption that parents possess
what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions.”).
Schools will always be concerned about defining
their own mission, see Resp. C.A. Br. 37, “promoting
cohesion,” Mozert, 827 F.2d at 1072 (Kennedy, J., concurring), or “[r]unning a public school system of today’s magnitude” efficiently, id. at 1079 (Boggs, J.,
concurring). But allowing those concerns to foreclose
parental free-exercise claims puts the cart before the
horse. Courts should first assess whether there is a religious burden and then weigh the government’s asserted compelling interests. Reversing that order renders the Free Exercise Clause toothless.14
It also reinforces the “dangerous fiction * * * that
parents simply delegate their authority—including
their authority to determine what their children may
say and hear—to public school authorities.” Morse, 551
The Board’s argument about educational mission—that the
books at issue are “essential to good citizenship,” see Resp. C.A.
Br. 37—harks back to disreputable history. This claim originates
from a misguided belief that public schools are where governments make true “citizens” from the “[l]arge” and “weak” “masses
of foreign population [that] are among us.” Donahoe v. Richards,
38 Me. 379, 413 (1854). This 19th century anti-Catholic bigotry is
“hardly * * * a tradition that should inform our understanding
of the Free Exercise Clause.” Espinoza, 591 U.S. at 482.
14
34
U.S. at 424 (Alito, J., concurring). Every free-exercise
case teaches a contrary lesson: the tendency of some
public schools to broadly “define[ ] their educational
missions as including the inculcation of whatever political and social views are held” by school officials, id.
at 423, ought to be cause for increased, not diminished,
scrutiny. See Fulton, 593 U.S. at 541 (“the First
Amendment demands a more precise analysis”).
Furthermore, the enduring disarray over “which
burdens on religion [a]re thought significant enough to
require special justification” likewise requires this
Court’s attention. Sherif Girgis, Defining “Substantial
Burdens” on Religion and Other Liberties, 108 Va. L.
Rev. 1759, 1769 (2022); see also Michael A. Helfand,
Substantial Burdens as Civil Penalties, 108 Iowa L.
Rev. 2189, 2193 (2023) (noting “doctrinal puzzles * * * over how courts ought to determine what
sorts of burdens ought to trigger First Amendment
protections”). In this case and others, fumbling the
burden question has dramatic consequences for statutory and constitutional guarantees. App.31a (requiring evidence of “coercive effect” or “change [in] religious beliefs or conduct”); see, e.g., Apache Stronghold
v. United States, 101 F.4th 1036, 1051-1052 (9th Cir.
2024) (en banc) (finding that total physical destruction
of sacred site would cause no cognizable burden), petition for cert. pending, No. 24-___ (filed Sept. 11, 2024).
“The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children.” Yoder, 406 U.S.
at 232. The First Amendment—which “lies at the
heart of our pluralistic society,” Bostock v. Clayton
County, 590 U.S. 644, 681 (2020)—can hardly play its
35
critical role if it offers no protection against forced participation in ideological instruction by government
schools. Neither parental rights nor the First Amendment should be so lightly dismissed.
CONCLUSION
The Court should grant the petition.
Respectfully submitted.
ERIC S. BAXTER
Counsel of Record
WILLIAM J. HAUN
MICHAEL J. O’BRIEN
COLTEN L. STANBERRY
THE BECKET FUND FOR
RELIGIOUS LIBERTY
1919 Pennsylvania Ave. NW,
Suite 400
Washington, D.C. 20006
(202) 955-0095
ebaxter@becketlaw.org
Counsel for Petitioners
SEPTEMBER 2024
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