Amicus Curiae Brief — Tamer Mahmoud, et al., Petitioners v. Thomas W. Taylor, et al.

No. 24-297

In the

Supreme Court of the United States

MAHMOUD, ET AL.,

v.

Petitioners,

THOMAS W. TAYLOR, ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Fourth Circuit

BRIEF OF AMICI CURIAE ADVANCING AMERICAN

FREEDOM; AFA ACTION; ALASKA FAMILY COUNCIL;

AMAC ACTION; AMERICAN HINDU COALITION;

AMERICAN PRINCIPLES PROJECT; AMERICAN VALUES;

ANGLICANS FOR LIFE; ASSOCIATION OF MATURE

AMERICAN CITIZENS; SHAWNNA BOLICK, ARIZONA

STATE SENATOR, DISTRICT 2; CATHOLIC VOTE;

CATHOLICS COUNT; CENTER FOR POLITICAL RENEWAL;

October 4, 2024

J. Marc Wheat

Counsel of Record

Timothy Harper

(Admitted in DC)

Advancing American Freedom, Inc.

801 Pennsylvania Avenue, N.W.

Suite 930

Washington, D.C. 20004

(202) 780-4848

MWheat@advancingamericanfreedom.com

CHRISTIAN LAW ASSOCIATION; CHRISTIAN MEDICAL

& DENTAL ASSOCIATIONS; CHRISTIANS ENGAGED;

DELAWARE FAMILY POLICY COUNCIL; EAGLE

FORUM; FAMILY INSTITUTE OF CONNECTICUT

ACTION; FRONTLINE POLICY COUNCIL ; GLOBAL

LIBERTY ALLIANCE; JAY D. HOMNICK, SENIOR

FELLOW, PROJECT SENTINEL; IDAHO FAMILY POLICY

CENTER; IDAHO FREEDOM ACTION; IDAHO FREEDOM

FOUNDATION; INTERNATIONAL CONFERENCE OF

EVANGELICAL CHAPLAIN ENDORSERS;

JCCWATCH.ORG; TIM JONES, FORMER SPEAKER,

MISSOURI HOUSE OF REPRESENTATIVES, CHAIRMAN,

MISSOURI CENTER-RIGHT COALITION; LAND

CENTER FOR CULTURAL ENGAGEMENT; JOAN HOLT

LINDSEY, PRESIDENT, LINDSEY COMMUNICATIONS;

LOUISIANA FAMILY FORUM; MARYLAND FAMILY

INSTITUTE; MELISSA ORTIZ, PRINCIPAL & FOUNDER,

CAPABILITY CONSULTING; MEN AND WOMEN FOR A

REPRESENTATIVE DEMOCRACY IN AMERICA, INC.;

MINNESOTA FAMILY COUNCIL; MOMS FOR LIBERTY;

NATIONAL APOSTOLIC CHRISTIAN LEADERSHIP

CONFERENCE; NATIONAL ASSOCIATION OF PARENTS

(D/B/A "PARENTSUSA"); NATIONAL ORGANIZATION

FOR MARRIAGE; NEW JERSEY FAMILY FOUNDATION;

NEW MEXICO FAMILY ACTION MOVEMENT; NORTH

CAROLINA VALUES COALITION; ORTHODOX JEWISH

CHAMBER OF COMMERCE; PROJECT 21 BLACK

LEADERSHIP NETWORK; ROUGHRIDER INSTITUTE;

SETTING THINGS RIGHT; STAND FOR GEORGIA

VALUES ACTION; STUDENTS FOR LIFE OF AMERICA;

TEA PARTY PATRIOTS ACTION, INC.; THE FAMILY

FOUNDATION (VIRGINIA); THE JUSTICE

FOUNDATION; TRADITION, FAMILY, PROPERTY, INC. ;

WOMEN FOR DEMOCRACY IN AMERICA, INC.;

WISCONSIN FAMILY ACTION, INC.; YOUNG AMERICA’S

FOUNDATION; AND YOUNG CONSERVATIVES OF

TEXAS IN SUPPORT OF PETITIONERS

i

QUESTIONS PRESENTED

1. 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

TABLE OF CONTENTS

QUESTION PRESENTED ...........................................i

TABLE OF CONTENTS ............................................ ii

TABLE OF AUTHORITIES ...................................... iii

STATEMENT OF INTEREST OF AMICI

CURIAE.................................................................... 1

INTRODUCTION AND SUMMARY OF THE

ARGUMENT ............................................................ 3

ARGUMENT ................................................................ 5

I. The Rights of Parents to Direct the

Upbringing of their Children and to the Free

Exercise of Their Religion in the Raising of

Their Children are Fundamental ...................... 6

A. The actions of the Board and MCPS in

this case flout the fundamental right of

parents to direct the upbringing,

education, and care of their children ............ 6

B. The Board’s and MCPS’s removal of the

parental opt-out in this case violates the

Free Exercise Clause of the First

Amendment ................................................... 7

II. The School’s Claimed Interest in Promoting

Sexual Diversity to Elementary School-Aged

Children Does Not Come Close to

Outweighing the Parental Rights at Stake

in this Case ......................................................... 8

CONCLUSION .......................................................... 10

iii

TABLE OF AUTHORITIES

Cases

Meyers v. Nebraska,

262 U.S. 390, 399 (1923) ...................................... 6, 7

Moore v. East Cleveland,

431 U.S. 494 (1977) .................................................. 8

Obergefell v. Hodges,

576 U.S. 644 (2015) .................................................. 8

Pierce v. Society of Sisters,

268 U.S. 510 (1925) .......................................... 5, 6, 8

Prince v. Commonwealth of Massachusetts,

321 U.S. 158 (1944) .................................................. 7

Smith v. Organization of Foster Families,

431 U.S. 816 (1977) .................................................. 7

Wisconsin v. Yoder,

406 U.S. 205 (1972) ............................................5-10

Constitution and Statutes

U.S. Const. amend. I ................................................5-8

U.S. Const. amend. XIV .......................................... 6, 7

Regulations

Supreme Court Rule 37(2) .......................................... 1

iv

Other Authorities

Edwin J. Feulner, Jr.,

Conservatives Stalk the House:

The Story of the Republican Study Committee

(Green Hill Publishers, Inc. 1983)........................... 1

Russell Kirk,

The Conservative Constitution (1990) ..................... 7

Russell Kirk,

The Politics of Prudence (1993) ............................... 3

National Commission on Excellence in Education,

A Nation at Risk, (1983),

https://www.reaganfoundation.org/media/

130020/a-nation-at-risk-report.pdf.......................... 3

1

STATEMENT OF INTEREST OF AMICI CURIAE

Advancing American Freedom (AAF) is a

nonprofit organization that promotes and defends

policies that elevate traditional American values,

including equal treatment before the law.1 AAF “will

continue to serve as a beacon for conservative ideas, a

reminder to all branches of government of their

responsibilities to the nation,”2 and believes that a

person’s freedom of speech and the free exercise of a

person’s faith are among the most fundamental of

individual rights and must be secured, and that

parental rights have been established beyond debate

as an enduring American tradition. AAF files this

brief on behalf of its 1,794 members in Maryland and

its 12,013 members in the Fourth Circuit.

Amici AFA Action; Alaska Family Council;

AMAC Action; American Hindu Coalition; American

Principles Project; American Values; Anglicans for

Life; Association of Mature American Citizens;

Shawnna Bolick, Arizona State Senator, District 2;

Catholic Vote; Catholics Count; Center for Political

Renewal; Christian Law Association; Christian

Medical & Dental Associations; Christians Engaged;

Delaware Family Policy Council; Eagle Forum; Family

1 This brief was filed more than 10 days prior to the due date and

thus notice to the parties is not required under Supreme Court

Rule 37(2). No counsel for a party authored this brief in whole or

in part. No person other than Amicus Curiae and its counsel

made any monetary contribution intended to fund the

preparation or submission of this brief.

2 Edwin J. Feulner, Jr., Conservatives Stalk the House: The Story

of the Republican Study Committee, 212 (Green Hill Publishers,

Inc. 1983).

2

Institute of Connecticut Action; Frontline Policy

Council ; Global Liberty Alliance; Jay D. Homnick,

Senior Fellow, Project Sentinel; Idaho Family Policy

Center; Idaho Freedom Action; Idaho Freedom

Foundation; International Conference of Evangelical

Chaplain Endorsers; JCCWatch.org; Tim Jones,

Former Speaker, Missouri House of Representatives,

Chairman, Missouri Center-Right Coalition; Land

Center for Cultural Engagement; Joan Holt Lindsey,

President, Lindsey Communications; Louisiana

Family Forum; Maryland Family Institute; Melissa

Ortiz, Principal & Founder, Capability Consulting;

Men and Women for a Representative Democracy in

America, Inc.; Minnesota Family Council; Moms for

Liberty; National Apostolic Christian Leadership

Conference; National Association of Parents (d/b/a

"ParentsUSA"); National Organization for Marriage;

New Jersey Family Foundation; New Mexico Family

Action Movement; North Carolina Values Coalition;

Orthodox Jewish Chamber of Commerce; Project 21

Black Leadership Network; Roughrider Institute;

Setting Things Right; Stand for Georgia Values

Action; Students for Life of America; Tea Party

Patriots Action, Inc.; The Family Foundation

(Virginia); The Justice Foundation; Tradition, Family,

Property, Inc. ; Women for Democracy in America,

Inc.; Wisconsin Family Action, Inc.; Young America's

Foundation; and Young Conservatives of Texas

believe that parents have a fundamental right to raise

their children according to their own values and the

primary responsibility for educating their children

and that schools should adopt policies and procedures

to respect those principles.

3

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

When parents send their children to school,

they expect them to learn to read and write, to do math

and science, to learn about history and art. They do

not expect school administrators and teachers with an

agenda to undermine their children’s basic

understanding of reality. In this case, parents of

diverse religious backgrounds sued to protect their

elementary school-aged children from indoctrination

into a hyper-sexualized worldview.

In 1983, the National Commission of Excellence

in Education released a report called A Nation at Risk:

The Imperative of Educational Reform.3 As Russell

Kirk observed a decade later, “a great deal of talk

about education, and scribbling about it, have

occurred. As for any evidences of general

improvement, however – why, one does not discover

them easily.” Russell Kirk, The Politics of Prudence

240 (1993). Indeed, even as early as 1983, it seemed

that “Our society and its educational institutions” had

“lost sight of the basic purposes of schooling.” A Nation

At Risk 5 (1983).

In October 2022, the Montgomery County

School Board (the “Board”) announced the approval of

more than 22 LGBTQ texts as instructional materials

Pet. App. at 78a. MCPS is required by law to provide

“comprehensive health education” which includes sex

education. Id. at 80a. State law also requires school

systems to provide parents and guardians with the

3 National Commission on Excellence in Education, A Nation at

Risk, (1983), https://www.reaganfoundation.org/media/130020/anation-at-risk-report.pdf.

4

opportunity “to view instructional materials to be used

in the teaching of family life and human sexuality

objectives,” and to opt their children out of that

instruction. Id. at 81a. However, the Board contends

that the books in question are part of the English

curriculum and thus are not subject to this opt-out

provision. Id. at 80a.

Although the Board says there is no planned

curriculum on gender identity, after reading these

books, teachers will facilitate “think aloud” moments

where students can think of ways to implement the

stories they are reading into their personal lives. Id.

at 92a. Teachers were given canned responses to use

when fielding students’ questions. For example, if a

student is confused about the concept of

transgenderism after a reading, the teacher is

prompted to tell students the following series of lies:

“When we’re born, people make a guess about our

gender . . . When someone’s [sic] transgender, they

guessed wrong . . . Our body parts do not decide our

gender . . . When someone tells us what our gender is,

we believe them.” Id. at 95a. Further, the Board notes

that no one is required to agree with the ideas taught

and parents may keep their children home from school

while these texts are used in the classroom—but that

choice will result in an unexcused absence. Id. at 92a.

After initially saying that parents would be able

to opt their children out of reading these books, the

policy was revised to remove both parental notice and

parental ability to opt children out of engaging with

any instructional materials other than “Family Life

and Human Sexuality Unit of Instruction.” Id. at 97a.

Throughout this process, parents raised concerns at

several public meetings with the School Board. Id. at

5

100a. When it was clear that parents would not be

allowed to protect their children, the parents in this

case sued.

The Board’s and schools’ denial of parents’

efforts to protect their children from fashionable

sexual brainwashing of children is inconsistent with

the fundamental, constitutionally recognized right of

parents to direct the upbringing of their children and

the right of parents to freely exercise their religious

beliefs.

Argument

The question in this case is whether school

administrators’ preference to impose curricular

materials intended to promote sexual diversity can

outweigh the fundamental rights of parents to direct

the upbringing of their children and their Free

Exercise right to inculcate in their children their

religious values. Wisconsin v. Yoder, 406 U.S. 205, 214

(1972) (quoting Pierce v. Society of Sisters, 268 U.S.

510, 535 (1925)) (“[A] State's interest in universal

education, however highly we rank it, is not totally

free from a balancing process when it impinges on

fundamental rights and interests, such as those

specifically protected by the Free Exercise Clause of

the First Amendment, and the traditional interest of

parents with respect to the religious upbringing of

their children so long as they, in the words of Pierce,

"prepare [them] for additional obligations.")

(alteration in original). This balancing depends on

whether “there is a state interest of sufficient

magnitude to override the interest claiming protection

under the Free Exercise Clause.” Id. at 214. In

balancing the concerns and interests in this case,

there are three considerations: the parental rights at

6

stake, the interest of the state in promoting sexual

diversity to kids between five and twelve years old,

and the significance of the request and its impact on

the state’s ability to affect its claimed interest.

Thus, while not dispositive, Yoder sheds

significant light on the fundamental inquiry in this

case. In light of these considerations, this Court

should grant certiorari and rule for Petitioners.

I. The Rights of Parents to Direct the

Upbringing of their Children and to the Free

Exercise of Their Religion in the Raising of

Their Children are Fundamental.

A. The actions of the Board and MCPS in this

case flout the fundamental right of parents to direct the

upbringing, education, and care of their children.

In a long line of cases, this Court has found a

parental rights doctrine rooted in the First and

Fourteenth Amendments of the U.S. Constitution.

See, e.g., Meyers v. Nebraska, 262 U.S. 390, 399 (1923)

(“While this court has not attempted to define with

exactness the [due process] liberty . . . Without doubt,

it denotes . . . the right of the individual to . . . marry,

establish a home and bring up children.”); Pierce, 268

U.S. at 534-35 (finding that the act challenged in that

case, “unreasonably interferes with the liberty of

parents and guardians to direct the upbringing and

education of children under their control.”).

Similarly, for nearly a century, this Court has

repeatedly affirmed the rights and responsibilities

inherent in parenthood. See Pierce, 268 U.S. at 535

(“The fundamental theory of liberty upon which all

governments in this Union repose excludes any

general power of the State to standardize its children

by forcing them to accept instruction . . . The child is

7

not the mere creature of the State.”); Meyer, 262 U.S.

at 400 (“It is the natural duty of the parent to give his

children education suitable to their station in life.”);

Prince v. Commonwealth of Massachusetts, 321 U.S.

158, 166 (1944) (“It is cardinal with us that the

custody, care and nurture of the child reside first in

the parents, whose primary function and freedom

include preparation for obligations the state can

neither supply nor hinder.”) Yoder, 406 US at 232

(declaring that parental rights have been “established

beyond debate as an enduring American tradition.”);

Smith v. Organization of Foster Families, 431 U.S.

816, 845 (1977) (“The liberty interest in family privacy

has its source, and its contours are ordinarily to be

sought, not in state law, but in intrinsic human rights,

as they have been understood in ‘this Nation's history

and tradition.’”). These parental rights, more

fundamental than government power, have been longrecognized and demand on the part of public educators

a high regard for the will of parents.

B. The Board’s and MCPS’s removal of the

parental opt-out in this case violates the Free Exercise

Clause of the First Amendment.

The Free Exercise Clause of the First

Amendment, applicable to the States under the

Fourteenth Amendment, provides that “Congress

shall make no law . . . prohibiting the free exercise” of

religion. U.S. Const. amend. I. The courts have a duty

to safeguard religious freedom because “[a]ny political

constitution develops out of a moral order; and every

moral order has been derived from religious beliefs.”

Russell Kirk, The Conservative Constitution 174

(1990). And it is the family, the most basic societal

institution, where religious beliefs are most often

8

passed on to the next generation. Indeed, “Our

decisions establish that the Constitution protects the

sanctity of the family precisely because the institution

of the family is deeply rooted in this Nation's history

and tradition. It is through the family that we

inculcate and pass down many of our most cherished

values, moral and cultural.” Moore v. East Cleveland,

431 U.S. 494, 503 (1977). The parental right to raise

children includes the right to teach them to live

according to a particular religion’s teachings. See

Yoder, 406 U.S. at 233 (“[T]he Court's holding in Pierce

stands as a charter of the rights of parents to direct

the religious upbringing of their children.”). As this

Court observed in Obergefell v. Hodges, 576 U.S. 644,

679 (2015), “[t]he First Amendment ensures that

religious organizations and persons are given proper

protection as they seek to teach the principles that are

so fulfilling and so central to their lives and faiths.”

Given the significant harm the Board’s policy causes

to their constitutional interests and to their children,

the parents here deserve to have their claims heard.

For that reason, the Court should grant certiorari and

rule for Petitioners.

II. The School’s Claimed Interest in Promoting

Sexual Diversity to Elementary School-Aged

Children Does Not Come Close to Outweighing

the Parental Rights at Stake in this Case.

The Board’s and MCPS’s goal in this case is to

inculcate an appreciation of gender and sexual

diversity among students between the ages of five and

twelve. See Pet. App. at 129a. Even assuming that goal

9

is legitimate, the question is whether that interest

outweighs the rights of parents. It does not.

As described above, both the general right of

directing the upbringing of one’s children and the Free

Exercise rights of parents are fundamental, with the

former enjoying at least a century of Court

recognition. On the other hand, the interest of public

schools in the inculcation of values related to sexuality

and gender identity is recent, and the forms of that

indoctrination at issue in this case are entirely novel.

The Board’s interest here is significantly less

compelling than that of the state in Yoder. There,

Wisconsin’s interest was in universal high school

education, an interest the significance of which few

would deny. See Yoder, 406 U.S. at 214. Here, the

novel interest of the Board is of at most debatable

benefit to students and to society. Students, especially

elementary-aged students, are impressionable and

may well be harmed by the unprecedented pedagogical

approach represented by the philosophy behind the

books adopted by the Board. In such uncertain areas,

it is particularly important that parents be able to opt

their children out of being the guineapigs for

fashionable but unproven ideas.

Further, in Yoder, the request of the Amish

parents was to remove their children entirely from the

education system before high school. Yoder, 406 U.S.

at 207-08. That intervention against the state’s

interest was significant, and yet it was granted. Id. at

236. Here, the request is miniscule in comparison. The

parents in this case only request the ability to opt their

children out of a narrow range of materials explicitly

designed to push a worldview contrary to the religious

beliefs of many Montgomery County parents.

10

In Yoder, the Court recognized that a high

school education was “contrary to Amish beliefs.” Id.

at 211. The parents here make a related assertion

regarding the addition of LGBTQ books to the

elementary curriculum, but with a much more modest

request for relief than that granted by the Court in

Yoder. When school officials decide to propagandize

from the lectern, parents have a right to object and to

exempt their children from that instruction. Such a

modest request to protect such fundamental rights

should be granted.

Conclusion

For the forgoing reasons, the Court should

grant certiorari and rule for Petitioners.

J. Marc Wheat

Counsel of Record

Advancing American Freedom, Inc.

801 Pennsylvania Avenue, N.W. Suite 930

Washington, D.C. 20004

(202) 780-4848

mwheat@advancingamericanfreedom.com

Counsel for Amici Curiae