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

Supreme Court briefOct 14, 2024

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No. 24-297

In the Supreme Court of the United States

__________

TAMER MAHMOUD, ET AL.,

Petitioners,

THOMAS W. TAYLOR, ET AL.,

Respondents.

____________________

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

_______________

BRIEF FOR PROFESSORS DOUGLAS LAYCOCK,

RICHARD W. GARNETT, HELEN M. ALVARÉ,

THOMAS C. BERG, AND MICHAEL W.

MCCONNELL AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

__________

CHRISTOPHER E. MILLS

Counsel of Record

Spero Law LLC

557 East Bay Street

#22251

Charleston, SC 29413

(843) 606-0640

cmills@spero.law

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

Table of Contents.......................................................... i

Table of Authorities .....................................................ii

Interest of Amici Curiae .............................................. 1

Summary of the Argument ......................................... 4

Reasons for Granting the Writ.................................... 7

I. The lower courts are confused—and mostly

wrong—about whether religious burdens from

mandatory school instruction implicate the

First Amendment. .............................................. 7

A. The Free Exercise Clause protects parents

from indirect coercion against their religious

practice. ......................................................... 8

B. Contrary to the decision below and similar

decisions, Yoder applies in this context. .... 13

C. A total religious bar is not required. .......... 17

D. The Plaintiffs have provided ample evidence

to support their free exercise claim............ 20

II. The lower courts are also confused about the

burden from discrimination against religious

exercise. ............................................................ 21

Conclusion.................................................................. 25

TABLE OF AUTHORITIES

Page(s)

CASES

Altman v. Bedford Cent. Sch. Dist.,

245 F.3d 49 (CA2 2001) ......................................... 22

Brown v. Borough of Mahaffey,

35 F.3d 846 (CA3 1994) ......................................... 23

Carson v. Makin, 596 U.S. 767 (2022) ........................ 8

Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520 (1993)................................. 22

Edwards v. Aguillard, 482 U.S. 578 (1987)................ 9

Employment Div. v. Smith,

494 U.S. 872 (1990) .......................................... 12, 17

Espinoza v. Montana Dep’t of Revenue,

591 U.S. 464 (2020) .................................................. 7

Fleischfresser v. Directors of Sch. Dist. 200,

15 F.3d 680 (CA7 1994) ......................................... 16

Fulton v. City of Philadelphia,

593 U.S. 522 (2021) .................................... 12, 23, 24

Hartmann v. Stone, 68 F.3d 973 (CA6 1995) ........... 22

Hosanna-Tabor Evangelical Lutheran Church and

School v. EEOC, 565 U.S. 171 (2012) ..................... 1

Kravitz v. Purcell, 87 F.4th 111 (CA6 2023) ............. 22

Lee v. Weisman, 505 U.S. 577 (1992) ........ 9, 11, 15, 19

Levitan v. Ashcroft, 281 F.3d 1313 (CADC 2002)..... 23

Little Sisters of the Poor Saints Peter & Paul Home v.

Pennsylvania, 591 U.S. 657 (2020)........................ 12

iii

Mbonyunkiza v. Beasley,

956 F.3d 1048 (CA8 2020) ..................................... 23

Morris Cnty. Bd. of Chosen Freeholders v. Freedom

From Religion Found., 139 S. Ct. 909 (2019) ....... 22

Morse v. Frederick, 551 U.S. 393 (2007) ................... 18

Mozert v. Hawkins Cnty. Bd. of Educ.,

827 F.2d 1058 (CA6 1987) ..................................... 16

Parker v. Hurley, 514 F.3d 87 (CA1 2008).......... 15, 16

Pierce v. Society of Sisters, 268 U.S. 510 (1925) ......... 7

Roman Catholic Bishop of Springfield v. City of

Springfield, 724 F.3d 78 (CA1 2013) ..................... 23

Sherbert v. Verner, 374 U.S. 398 (1963) ................... 18

Tandon v. Newsom, 593 U.S. 61 (2021) .................... 23

Tenafly Eruv Ass’n, Inc. v. Tenafly,

309 F.3d 144 (CA3 2002) ....................................... 22

Thomas v. Review Board, 450 U.S. 707 (1981)......... 19

Trinity Lutheran Church of Columbia, Inc. v. Comer,

582 U.S. 449 (2017) ...................................... 8, 17, 22

Troxel v. Granville, 530 U.S. 57 (2000)....................... 7

Williams v. Hansen, 5 F.4th 1129 (CA10 2021) ....... 23

World Outreach Conf. Ctr. v. City of Chicago,

591 F.3d 531 (CA7 2009) ....................................... 22

STATUTES

Md. Code Ann., Educ. § 7-301 ................................... 19

OTHER AUTHORITIES

Douglas Laycock, High-Value Speech and the Basic

Educational Mission of A Public School: Some

Preliminary Thoughts, 12 Lewis & Clark L. Rev.

111 (2008) ............................................................... 10

Douglas Laycock, The Religious Exemption Debate,

11 Rutgers J. L. & Religion 139 (2009) ................. 12

Douglas Laycock, Theology Scholarships, the Pledge

of Allegiance, and Religious Liberty: Avoiding the

Extremes but Missing the Liberty, 118 Harv. L.

Rev. 155 (2004)....................................................... 10

George W. Dent, Jr., Of God and Caesar: The Free

Exercise Rights of Public School Students, 43 Case

W. Res. L. Rev. 707 (1993) ............................... 11, 14

Helen M. Alvaré, Families, Schools, and Religious

Freedom, 54 Loyola U. Chi. L. J. 579

(2023) .................................................... 13, 14, 15, 21

Thomas C. Berg, Free Exercise Renewal and

Conditions on Government Benefits, 98 Notre

Dame L. Rev. Reflection S20 (2023) ................ 18, 19

INTEREST OF AMICI CURIAE

Amici are constitutional law scholars whose

scholarship and teaching have a focus on the First

Amendment Religion Clauses. For decades, these

professors have closely studied constitutional law and

religious liberty, published books and scholarly

articles on the topic, and addressed it in litigation. The

amici bring to this case a deep theoretical and

practical understanding of the First Amendment. *

Douglas Laycock is the Robert E. Scott

Distinguished Professor of Law Emeritus at the

University of Virginia and the Alice McKean Young

Regents Chair in Law Emeritus at the University of

Texas. He is one of the nation’s leading authorities on

the law of religious liberty, having taught and written

about the subject for more than four decades at the

University of Texas, the University of Virginia, the

University of Chicago, and the University of Michigan.

He has testified many times before Congress and the

Texas legislature and has argued many religious

freedom cases in the courts, including the U.S.

Supreme Court. He was lead counsel for petitioner in

Hosanna-Tabor Evangelical Lutheran Church and

School v. EEOC, 565 U.S. 171 (2012). His many

writings on religious liberty have been republished in

* Pursuant to Rule 37.2, amici provided timely notice of their

intention to file this brief. In accord with Rule 37.6, no counsel

for a party authored this brief in whole or in part, and no counsel

or party made a monetary contribution intended to fund the

preparation or submission of this brief. No person other than

amici curiae, their members, or their counsel made a monetary

contribution to its preparation or submission.

a five-volume collection under the overall title

Religious Liberty.

Richard W. Garnett is the Paul J. Schierl/Fort

Howard Corporation Professor at Notre Dame Law

School. He teaches and writes about the freedoms of

speech, association, and religion, and constitutional

law more generally. He is a leading authority on the

role of religious believers and beliefs in politics and

society. He has published widely on these matters, and

is the author of dozens of law review articles and book

chapters. He is the founding director of Notre Dame

Law School’s Program on Church, State, and Society,

an interdisciplinary project that focuses on the role of

religious institutions, communities, and authorities in

the social order.

Helen M. Alvaré is the Robert A. Levy Endowed

Chair in Law and Liberty at Antonin Scalia Law

School, George Mason University, where she teaches

Family Law and Law and Religion. She has published

dozens of law review articles on matters concerning

marriage, parenting, and the Religion Clauses. Her

most recent books are Religious Freedom After the

Sexual Revolution and Christianity and Conscience.

She assists the Holy See on matters concerning family

life and religious liberty at the Organization of

American States, and as a member of Pope Francis’

Dicastery for Laity, Family and Life.

Thomas C. Berg is the James L. Oberstar Professor

of Law and Public Policy at the University of St.

Thomas School of Law. He combines advocacy with

scholarship as one of the nation's leading experts on

religious liberty and law and religion. He is the author

of six books, including a leading casebook, Religion

and the Constitution (with Michael McConnell and

Christopher Lund, Aspen Publishing); The State and

Religion in a Nutshell (West); and the recently

released Religious Liberty in a Polarized Age

(Eerdmans Publishing 2023).

Michael W. McConnell is the Richard and Frances

Mallery Professor and Director of the Constitutional

Law Center at Stanford Law School, and a Senior

Fellow at the Hoover Institution. From 2002 to 2009,

he served as a Circuit Judge on the United States

Court of Appeals for the Tenth Circuit. He has

published widely in the fields of constitutional law and

theory, especially church and state, equal protection,

and separation of powers. His book, The President

Who Would Not Be King: Executive Power Under the

Constitution, was published by Princeton University

Press in 2020, based on the Tanner Lectures in

Human Values, which he delivered at Princeton in

2019. His latest book, co-authored with Nathan

Chapman, Agreeing to Disagree: How the

Establishment Clause Protects Religious Diversity and

Freedom of Conscience, was published by Oxford

University Press in mid-2023.

SUMMARY OF THE ARGUMENT

Over the past few decades, this Court has refined

Free Exercise Clause doctrine. It has made clear that

parents have a broad right to direct the religious

upbringing of their children; that religious claimants

have the best understanding of the importance of their

own religious beliefs; that indirect coercion is a burden

on free exercise; and that the government cannot

evade constitutional limits by casting its benefit

programs as a voluntary “choice” by religious

claimants and thus excluding them.

But confusion still reigns in the lower courts on the

question of how—and when—to assess burdens on

religious exercise. The Fourth Circuit’s decision below

epitomizes that confusion. The Montgomery County

Board of Education adopted mandatory “LGBTQInclusive Books as part of the English Language Arts

Curriculum” starting in preschool. App. 10a. For

instance, as the Fourth Circuit explained, “the

alphabet primer Pride Puppy!” instructs a “three-and

four-year-old audience” “to look for items such as

‘[drag]king,’ ‘leather,’ ‘lip ring,’ ‘[drag]queen,’ and

‘underwear.’” Ibid. (brackets in original).

Though the school district initially provided notice

and opt-out rights to objecting parents, the Board

decided “in a complete about-face that a notice and

opt-out option would no longer be permitted.”

App. 15a. The reason, even as stated in a post hoc

declaration by an administrator? Letting parents

excuse their children from mandatory sexuality and

gender curriculum would “undermin[e] [the school

system’s] educational mission.” App. 16a.

No wonder, then, that even the district court below

understood that the point of the Board’s mandatory

(and covert) readings is to “influence” children.

App. 133a. And the Fourth Circuit acknowledged that

“elementary-age students”—and certainly preschool

children—“are more likely to be impressionable than

teenagers and adults.” App. 41a. So the burden on the

Plaintiffs’ free exercise right—specifically, their

parental right to direct their children’s religious

upbringing—is obvious. Especially given the topics of

these forced readings, which touch sensitive and

deeply personal issues regarding sexuality and gender

that have not traditionally been part of public school

curriculum, the school district’s “influence” comes at

the expense of the moral and religious instruction of

many believers across many faiths. Whether to protect

these parents’ free exercise rights should not have

been a close call.

The Fourth Circuit, however, aligned itself with

outdated decisions from several other circuits and

erected an improperly high burden requirement for

parental religious challenges to school instruction,

asking whether the Plaintiffs proved a compelled

“change” in beliefs, a compelled “affirm[ation]” of other

beliefs, or a compelled “perform[ance] [of] acts

undeniably at odds with” their beliefs. App. 34a, 39a.

Finding no evidence of these types of burdens, the

court left religious parents “to incur the additional

(and in some cases prohibitive) cost of pursuing an

alternative to public schooling”—while reiterating its

view that although this “position” might be

“undesired,” it is “not unconstitutionally coercive.”

App. 46a–48a. The Fourth Circuit dismissed this

Court’s contrary holding in Wisconsin v. Yoder, 406

U.S. 205 (1972), as “markedly circumscribed” and

“limited” to “facts suggesting an exceptional burden.”

App. 37a–38a (cleaned up).

The decision below, like other decisions to reach

similar conclusions, shows why this Court’s

intervention is needed. The lower courts are

hopelessly confused—and largely wrong—about the

nature of religious coercion in the school instructional

context. When the government seeks to instruct

students about value-laden sexuality and gender

issues in a way that contradicts their parents’

religious instruction, without telling the parents or

providing an opt-out, the parents’ First Amendment

rights have been burdened.

More broadly, the courts of appeals are confused

about the role of burdens in the free exercise analysis,

especially when the challenged policy discriminates

against religion—i.e., is not neutral or generally

applicable. The Plaintiffs showed that the Board’s

policy here was neither neutral nor generally

applicable, yet the Fourth Circuit sidestepped that

problem by reasoning that they had not proved a

sufficiently extreme burden. But when the

government discriminates against religious exercise,

many courts of appeals—and this Court—have

explained that this discrimination necessarily

burdens religion.

The widespread confusion in the courts of appeals

about the nature of religious burdens stemming from

mandatory public school instruction has left largely

unprotected the core parental right to direct their

children’s religious upbringing. The Court should

grant certiorari.

REASONS FOR GRANTING THE WRIT

I. The lower courts are confused—and mostly

wrong—about whether religious burdens

from mandatory school instruction implicate

the First Amendment.

Parents have a broad free exercise right to prevent

their children from being indoctrinated into beliefs

that contradict their religious faith. This Court,

“[d]rawing on ‘enduring American tradition,’” 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)

(quoting Yoder, 406 U.S. at 213–214). It has firmly

held that “[t]he child is not the mere creature of the

state.” Pierce v. Society of Sisters, 268 U.S. 510, 535

(1925). Rather, “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.”

Troxel v. Granville, 530 U.S. 57, 65–66 (2000).

Yet the Fourth Circuit adopted the Defendants’

argument that the Board’s mandatory indoctrination

“does not impose any constitutionally significant

burden” because it “does not coerce Plaintiffs to refrain

from raising their children in their preferred religious

faith or penalize them for their religious conduct.”

D. Ct. Dkt. 42, at 9–10; see App. 34a. Other courts of

appeals faced with challenges to school instructional

materials have adopted similar reasoning. This

reasoning misunderstands the Free Exercise Clause,

including its scope as recognized in Yoder.

A. The Free Exercise Clause protects parents

from indirect coercion against their

religious practice.

First, the Fourth Circuit’s decision fails to account

for this Court’s Free Exercise Clause jurisprudence

about indirect coercion on religious practice. As this

Court has often explained, “the Free Exercise Clause

of the First Amendment protects against indirect

coercion or penalties on the free exercise of religion,

not just outright prohibitions.” Carson v. Makin, 596

U.S. 767, 778 (2022) (cleaned up); see Trinity Lutheran

Church of Columbia, Inc. v. Comer, 582 U.S. 449, 463

(2017).

According to the Fourth Circuit, the district court

did not err in denying the Plaintiffs a preliminary

injunction because “the Board’s decision not to permit

opt-outs” does not “compel[] the Parents or the

children to change their religious beliefs or conduct,

either at school or elsewhere.” App. 34a. The court also

found it convincing that the parents had failed to show

“anything at this point” to prove that the Board’s

decision “affects what they teach their own children”

or forces them “to affirm views contrary to their own.”

Ibid. This misses the mark.

The Fourth Circuit’s focus on whether the Board’s

decision “affects what [the parents] teach their own

children” (ibid.) elides the nature of their claims,

which are that the government’s forced indoctrination

on ideological sexuality topics burdens their religious

exercise by contradicting their religious upbringing of

their children. This burden easily amounts to (at least)

indirect coercion. The government is using the

inherently coercive environment of the public school

for instruction at odds with the Plaintiffs’ religious

beliefs. Not only does the curriculum instruct students

about sexuality and gender issues in a way that

contradicts the parents’ religious beliefs, but it

instructs teachers to tell dissenting children in front

of their peers that their beliefs are “hurtful” and

“negative.” App. 94a. Both are coercive. See Lee v.

Weisman, 505 U.S. 577, 592 (1992) (“[T]here are

heightened concerns with protecting freedom of

conscience from subtle coercive pressure in the

elementary and secondary public schools.”); Edwards

v. Aguillard, 482 U.S. 578, 584 (1987) (“The State

exerts great authority and coercive power through

mandatory attendance requirements, and because of

the students’ emulation of teachers as role models and

the children’s susceptibility to peer pressure.”).

The parents’ diverse religious belief systems all

require both that they teach their kids certain values

about “human sexuality, gender, and family life” and

that they “shield their children” from sexually explicit

material and from “teachings that contradict and

undermine their religious views on those topics.” App.

63a (Quattlebaum, J., dissenting). The Fourth Circuit

was dismissive of their claims based on these beliefs,

stating that “simply hearing about other views does

not necessarily exert pressure to believe or act

differently than one’s religious faith requires.”

App. 35a.

But the Plaintiffs’ claims are not about “simply

hearing about other views.” Ibid. Instead, the injury

to the parents results from the Board’s decision to

forbid them from opting their young children out of

specific, school-sanctioned sexuality and gender

instruction that directly conflicts with their religious

beliefs. “Indoctrination on that sort of question is not

part of the school’s basic educational mission.”

Douglas Laycock, High-Value Speech and the Basic

Educational Mission of A Public School: Some

Preliminary Thoughts, 12 Lewis & Clark L. Rev. 111,

119 (2008).

The Fourth Circuit suggested that, to have a valid

free exercise claim, these parents would be required to

show that schoolteachers are forcing their children to

affirm views contrary to their religion. App. 34a–35a.

What the Fourth Circuit misunderstands is that the

very act of instructing children on these highly

personal topics at such a young age—and telling them

that their prior beliefs are “hurtful”—necessarily

pressures students and violates the parents’ religious

rights. These parents are not seeking to prevent the

school from using these books. See App. 17a; App. 56a

(Quattlebaum, J., dissenting). And no one asserts that

the school must adopt curriculum that is consistent

with the parents’ religious convictions. See App. 25a–

26a. The parents’ injury is “simple[] to remedy”: they

want the chance to opt their own children out of

instruction that directly conflicts with their religious

beliefs. Douglas Laycock, Theology Scholarships, the

Pledge of Allegiance, and Religious Liberty: Avoiding

the Extremes but Missing the Liberty, 118 Harv. L.

Rev. 155, 172 (2004). Again, even the district court

agreed that the schools are “us[ing]” the books to

“influence” children, App. 133a, and the schools said

that not using the books would “undermin[e]” their

“mission.” App. 16a. So requiring evidence that

teachers have actively pressured children “to affirm

views contrary to their own” (App. 34a)

misapprehends the basis of the parents’ free exercise

claim.

What’s more, it is not so obvious that the children

here face no forced affirmation. “[W]hen students are

subjected to doctrine that is offensive to their religion,”

“not only may it improperly influence their beliefs, but

their very presence and respectful silence may be

taken as assent to that doctrine.” George W. Dent, Jr.,

Of God and Caesar: The Free Exercise Rights of Public

School Students, 43 Case W. Res. L. Rev. 707, 718

(1993). “The endorsement of an idea by the teacher—

a government official and an authority figure—may

torment a student to whom the idea is religiously

offensive. If her peers fail to protest, she assumes that

they agree with the teacher, which makes the student

feel like even more of a misfit or pariah.” Ibid. This

Court made the same point in Lee v. Weisman,

prohibiting a short graduation prayer in high school

and emphasizing that, “given our social conventions,”

“remaining silent can signify adherence to a view.” 505

U.S. at 593. That elementary school students face even

greater pressure to remain silent makes the point

more forceful here.

As noted, the schools have argued that their

mandatory indoctrination “does not impose any

constitutionally significant burden” because it “does

not coerce Plaintiffs to refrain from raising their

children in their preferred religious faith or penalize

them for their religious conduct.” D. Ct. Dkt. 42, at 9–

10 (emphasis added). The decision below similarly

held that the Plaintiffs “have not shown a cognizable

burden” because “hearing about other views” is not

enough. App. 34a–35a (emphasis added).

This view, however, contradicts this Court’s

explanation that judges should not “determine the

‘centrality’ of religious beliefs” as a threshold

requirement for a free exercise claim. Employment

Div. v. Smith, 494 U.S. 872, 887 (1990). The

Defendants’

reference

“‘[c]onstitutionally

significant burden’”—and the Fourth Circuit’s

references to “cognizable burden”—“would seem to be

‘centrality’ under another name.” Id. at 887 n.4. Any

“inquiry into ‘severe impact’ is no different from

inquiry into centrality.” Ibid. “Such a threshold

requirement would wholly deny protection . . . when

religious significance is somewhat underestimated.”

Douglas Laycock, The Religious Exemption Debate, 11

Rutgers J. L. & Religion 139, 151 (2009). Courts

should hesitate before telling religious claimants that

“the connection between what [they] must do and the

end that they find to be morally wrong is simply too

attenuated.” Little Sisters of the Poor Saints Peter &

Paul Home v. Pennsylvania, 591 U.S. 657, 681 (2020)

(cleaned up).

The Defendants do not appear to dispute the

sincerity of the Plaintiffs’ beliefs, and the Plaintiffs

“believe[] that [use of these books] is tantamount to

endorsement.” Fulton v. City of Philadelphia, 593 U.S.

522, 532 (2021). “[R]eligious beliefs need not be

acceptable, logical, consistent, or comprehensible to

others in order to merit First Amendment protection.”

Ibid. (cleaned up). And especially for elementary

school children, official endorsement is indoctrination.

As the district court agreed, the Defendants are

“us[ing]” these sexuality and gender books to

“influence” children. App. 133a. After all, the

Defendants could scarcely pretend to pass strict

scrutiny—as they did below—if they thought that

their mandatory reading does not affect students.

Thus, the burden analysis should have been

straightforward: forcing parents to submit their

elementary-age children to mandated sexuality and

gender readings contrary to their religious beliefs

burdens their religious exercise.

B. Contrary to the decision below and similar

decisions, Yoder applies in this context.

Yoder confirms the burden on parental religious

rights here, and the Fourth Circuit was wrong to limit

Yoder to its facts. The court described Yoder as a

“limited holding” constrained to “the unique record

established concerning the Amish faith’s rejection of

formal secondary education as a whole.” App. 38a. But

the Fourth Circuit “overlook[ed] the substantial

weight the Yoder Court granted parental interests in

their children’s religious upbringing generally.” Helen

M. Alvaré, Families, Schools, and Religious Freedom,

54 Loyola U. Chi. L. J. 579, 627 (2023).

As this Court explained in Yoder, “the values of

parental direction of the religious upbringing and

education of their children in their early and formative

years have a high place in our society.” Yoder, 406 U.S.

at 213–14. Because the law in Yoder was a compulsory

attendance law, the Amish had to show a burden from

that law—and rebut the state’s compelling interest

argument about it. That “‘probably few other religious

groups or sects could’ develop” a record to show a

burden and sufficient justification to avoid compulsory

education laws (App. 37a (quoting Yoder, 406 U.S. at

236)) says little about other types of government

intrusion.

Instead, what matters under Yoder is whether the

government action “contravenes the basic religious

tenets and practice of the . . . faith, both as to the

parent and the child.” Yoder, 406 U.S. at 218. As Yoder

recognized, “exposing [school] children to worldly

influences in terms of attitudes, goals, and values

contrary to [their religious] beliefs” can impose this

type of burden. Ibid. So can “interfering with the

religious development of the” child. Ibid. Each “carries

with it precisely the kind of objective danger to the free

exercise of religion that the First Amendment was

designed to prevent.” Ibid.

“[L]ike Yoder, the school content at issue here

undermines the very architecture” of the faith of

objecting families. Alvaré, supra, at 629. These

“coercively framed viewpoints touch students’ beliefs

and conduct regarding” significant aspects of many

faiths’ teachings on sexuality and gender. Ibid.

Further, “there is a strong argument that

contradicting the familial architecture of [a religious]

faith does constitute a threat to its transmission, in a

manner similar to Wisconsin’s compulsory education

regime in Yoder.” Id. at 630 (emphasis added). After

all, “a rejection of [religious] familial teachings is one

important reason that people reject the faith, and an

important predictor of a breakdown in the

transmission of faith.” Ibid. Yoder noted in its

conclusion that “school attendance with teachers who

are not of the Amish faith—and may even be hostile to

it—interposes a serious barrier to the integration of

the Amish child into the Amish religious community.”

406 U.S. at 211–12. “The same dynamic is present

here.” Alvaré, supra, at 630; see also Dent, supra, at

738 (“To survive, religious groups depend on raising

their members’ children within the faith.”).

Rather than read Yoder narrowly as defining

parental religious rights related to schooling no

matter the underlying government policy, the Fourth

Circuit should have recognized it as an example of a

religious burden—and one that is closely analogous to

the burdens on the parents here. Unfortunately, the

Fourth Circuit is not alone in reading Yoder too

narrowly. One oft-referenced case, cited by the

decision below, is Parker v. Hurley, 514 F.3d 87 (CA1

2008). There, parents “assert[ed] that they must be

given prior notice by the [public] school and the

opportunity to exempt their young children from

exposure to books they find religiously repugnant.” Id.

at 90. Holding that the Free Exercise Clause and

Yoder were not implicated, Parker emphasized that

“there is no claim of direct coercion.” Id. at 105. As

discussed, “direct coercion,” whatever exactly that

means, is never required. And given that this Court in

Lee v. Weisman “detected coercion in a thirty-second

prayer that a public school helped organize for

graduation ceremonies,” Alvaré, supra, at 623, it is

hard to see how coercion does not exist in requiring

elementary students “to sit through a classroom

reading of” books that “affirmatively endorse[]

homosexuality and gay marriage.” Parker, 514 F.3d at

106.

The First Circuit agreed that “[i]t is a fair inference

that the reading” “was precisely intended to influence

the listening children toward tolerance of gay

marriage”: “That was the point of why that book was

chosen and used.” Ibid. Yet the court said that “the

mere fact that a child is exposed on occasion in public

school to a concept offensive to a parent’s religious

belief does not inhibit the parent from instructing the

child differently.” Id. at 105.

The First Circuit did not explain what this point

has to do with any question relevant to the free

exercise analysis, and such a connection is not

apparent. Countermanding a parent’s religious

instruction with “religiously repugnant” instruction

(id. at 90)—especially without providing the parent

notice of this instruction (see id. at 106)—burdens the

parent’s religious upbringing of their children. Of

course the parent can still try to “instruct[] the child

differently,” id. at 105, but the state may not make

that burden more difficult by actively countering the

parents’ teaching.

Several other circuit decisions are similarly wrong.

The Sixth Circuit’s opinion in Mozert v. Hawkins

County Board of Education, for example, also limited

Yoder to its “singular set of facts,” saying that it did

not “announce a general rule.” 827 F.2d 1058, 1067

(CA6 1987). And the Seventh Circuit in Fleischfresser

v. Directors of School District 200 dismissed the

“burden to the parents” as “at most, minimal” because

the parents “are not preclud[ed]” “from meeting their

religious obligation to instruct their children.” 15 F.3d

680, 690 (CA7 1994). As discussed, that red herring

does not alter the burden on parents whose religious

instruction is being covertly undermined by

government officials.

All these cases underestimate Yoder. When this

Court in Smith announced the “neutral and generally

applicable” standard, it excepted free exercise claims

asserting parental rights. The Court referred to this

as a “hybrid situation,” where “the Free Exercise

Clause [acts] in conjunction with other constitutional

protections, such as . . . the right of parents . . . to

direct the education of their children.” Smith, 494 U.S.

at 881–82 (cleaned up).

Here, the burden on the Plaintiffs’ free exercise

stems from the government’s efforts to contradict their

religious upbringing via mandatory indoctrination on

highly personal and contested sexuality and gender

issues. This burden implicates parents’ fundamental

right to opt their children out of mandatory education

contrary to their religious beliefs. The Free Exercise

Clause and this Court’s precedents demand strict

scrutiny.

C. A total religious bar is not required.

The Fourth Circuit also downplayed the nature of

the burden facing these parents on the ground that the

Board’s policy does not “overtly bar[]” students from

“enrollment” based on “their religious views.” App.

45a–46a. This too misunderstands the stakes for

religious parents.

As this Court has said, citizens have “a right to

participate in a government benefit program without

having to disavow [their] religious [exercise],” for

“[t]he imposition of such a condition upon even a

gratuitous benefit inevitably deters or discourages the

exercise of First Amendment rights.” Trinity

Lutheran, 582 U.S. at 463 (cleaned up).

To avoid this line of cases, the Fourth Circuit

emphasized that the schools are “open to all students

who meet the requirements of enrollment, none of

which relate to the religious affiliation or beliefs of

students or their parents.” App. 46a. It also dismissed

the Plaintiffs’ arguments that, to avoid the

consequences of the no opt-out policy, “they would be

forced to incur the additional (and in some cases

prohibitive) cost of pursuing an alternative to public

schooling.” Ibid. The court recognized that “[m]ost

parents, realistically, have no choice but to send their

children to a public school.” App. 47a (quoting Morse

v. Frederick, 551 U.S. 393, 424 (2007) (Alito, J.,

concurring)). Yet the court looked for an “overt[] bar[],”

App. 45a, and finding none, ruled against the parents.

Contrary to the Fourth Circuit’s analysis, this

Court’s precedent does not require that religious

observers be barred from a public benefit to show a

burden. Sherbert v. Verner is instructive. Sherbert

held that the government could not deny employment

benefits to employees whose religious convictions

required that they not work on the Sabbath. 374 U.S.

398, 399–404 (1963). Forcing people to choose between

following their convictions and receiving benefits, this

Court said, “puts the same kind of burden upon the

free exercise of religion as would a fine imposed

against appellant for her Saturday worship.” Id. at

404; see Thomas C. Berg, Free Exercise Renewal and

Conditions on Government Benefits, 98 Notre Dame L.

Rev. Reflection S20, S27 (2023).

“When, therefore, does a denial of benefits, even

pursuant to a generally applicable condition,

constitute a ‘substantial burden’ on religious

exercise—an imposition on religious choice that

triggers, or should trigger, strict scrutiny?” Id. at S28.

This Court has already provided the answer. In

Thomas v. Review Board, this Court held that a

substantial burden exists “[w]here the state . . . denies

[an important benefit] because of conduct mandated

by religious belief, thereby putting substantial

pressure on an adherent to modify his behavior and to

violate his beliefs.” 450 U.S. 707, 717–18 (1981).

“While the compulsion may be indirect, the

infringement upon free exercise is nonetheless

substantial.” Id. at 717; see Berg, supra, at S29 (“Loss

of an ‘important’ benefit can be enough to pressure

recipients to modify their behavior and violate their

beliefs. That is enough to be ‘substantial.’”).

This right against indirect coercion in government

programs is particularly compelling in the context of

public schools, given that states generally require

attendance at either a public school or some costly

alternative. See Md. Code Ann., Educ. § 7-301. Indeed,

this Court has repeatedly rejected tying First

Amendment rights to the “choice” to go to public

school. For instance, in Lee v. Weisman, it rejected the

argument

that

school-sponsored

prayers

graduation ceremonies were permissible because of

“the option of not attending the graduation.” 505 U.S.

at 595. The Court said that “[i]t is a tenet of the First

Amendment that the State cannot require one of its

citizens to forfeit his or her rights and benefits as the

price of resisting conformance.” Id. at 596. “[S]ubtle

and indirect” “pressure” “can be as real as any overt

compulsion.” Id. at 593. Here, the coercive “choice”

facing these parents—send their children to public

schools or raise them according to their religious

convictions—is not one that that the First Amendment

can tolerate.

D. The Plaintiffs have provided ample

evidence to support their free exercise

claim.

Just as the Fourth Circuit mischaracterized the

Plaintiffs’ free exercise claim, it also articulated an

unduly high evidentiary standard. From the start, the

decision below repeatedly emphasized the purportedly

“very limited record developed.” App. 31a. But the

record is easily sufficient—especially considering the

nature of the Plaintiffs’ claims.

The details about the no opt-out policy itself are

clear. As Judge Quattlebaum pointed out, the parents

have produced the books “that no one disputes will be

used to instruct their K-5 children.” App. 62a

(dissenting op.). They also produced declarations that

explain why reading these books to their children

violates their religious beliefs—and, by extension, why

the no opt-out policy does as well. Ibid. They have even

produced “the board’s own internal documents that

show how it suggests teachers respond to students and

parents who question the contents of the books.” Ibid.

These documents instruct teachers to “[d]isrupt the

either/or thinking by saying something like: actually,

people of any gender can like whoever they like.” Ibid.

They also direct teachers to tell K-5 students that

“[o]ur body parts do not decide our gender. Our gender

comes from our inside.” Ibid. Again, even the district

court understood that the point of the Board’s policy is

to “influence” children. App. 133a. No more evidence

is necessary.

The Fourth Circuit’s improperly high evidentiary

standard disregards this Court’s precedent on the

“relevance of impressionable audiences—like the

audiences here—to parental free exercise claims.”

Alvaré, supra, at 629. Yoder stressed that “interfering

with the religious development of the Amish child and

his integration into the way of life of the Amish faith

community at the crucial adolescent stage of

development[] contravenes the basic religious tenets

and practice of the Amish faith, both as to the parent

and the child.” 406 U.S. at 218 (emphasis added). The

Fourth Circuit acknowledged that elementary-aged

students are more impressionable than teenagers and

adults but incorrectly held that more evidence was

needed. App. 40a–41a.

Of course, the question would remain whether the

Board’s policy can satisfy strict scrutiny, an issue that

the Fourth Circuit did not reach. But the evidence

presented by the parents is more than enough to

support their claim that strict scrutiny applies

because their free exercise rights have been infringed.

The widespread failure of the courts of appeals to

appreciate the burden on parental religious rights

that can result from mandatory school instruction on

highly fraught topics requires this Court’s attention.

II. The lower courts are also confused about the

burden from discrimination against religious

exercise.

The Fourth Circuit also failed to recognize that a

government policy that discriminates against religion

violates the First Amendment. As this Court “has

repeatedly held, governmental discrimination against

religion—in particular, discrimination against

religious persons, religious organizations, and

religious speech—violates the Free Exercise Clause.”

Morris Cnty. Bd. of Chosen Freeholders v. Freedom

From Religion Found., 139 S. Ct. 909, 909 (2019)

(Kavanaugh, J., respecting the denial of certiorari).

For instance, in Trinity Lutheran, the Court held that

“express discrimination against religious exercise”

violates the First Amendment regardless of whether

the government’s policy “meaningfully burden[s]” that

exercise. 582 U.S. at 462–63; see also Church of the

Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.

520, 533 (1993) (“a law targeting religious beliefs as

such is never permissible”).

Accordingly, several courts of appeals have agreed

that under the framework of Smith and Lukumi,

“there is no substantial burden requirement when

government discriminates against religious conduct.”

Tenafly Eruv Ass’n, Inc. v. Tenafly, 309 F.3d 144, 170

(CA3 2002); see also Kravitz v. Purcell, 87 F.4th 111,

124–126, 126 n.11 (CA6 2023) (“We disagree with

those circuits that continue to apply the substantial

burden test”); Hartmann v. Stone, 68 F.3d 973, 979 n.4

(CA6 1995) (explaining that the plaintiffs in such

cases “need not demonstrate a substantial burden on

the practice of their religion”); World Outreach Conf.

Ctr. v. City of Chicago, 591 F.3d 531, 534 (CA7 2009)

(similar); Altman v. Bedford Cent. Sch. Dist., 245 F.3d

49, 79 (CA2 2001) (similar).

But the Fourth Circuit, siding with other circuits,

reached the opposite conclusion, stating that it

“continue[d] to look” for “a burden” even in cases

involving discrimination against religion. App. 30a

n.12; see also Roman Catholic Bishop of Springfield v.

City of Springfield, 724 F.3d 78, 98, 100 (CA1 2013)

(Although “the Ordinance is not ‘generally

applicable,’” the plaintiff’s claims fail because it has

not proven “that it suffers a substantial burden on its

religious exercise”); Mbonyunkiza v. Beasley, 956 F.3d

1048, 1053–54 (CA8 2020) (“like other courts, we have

made the [free-exercise] standard more restrictive” by

requiring a “substantial burden”); Williams v. Hansen,

5 F.4th 1129, 1133 (CA10 2021) (similar); Levitan v.

Ashcroft, 281 F.3d 1313, 1320 (CADC 2002) (similar).

This latter group of circuits, including the Fourth

Circuit, are wrong. Discriminating against religion

burdens its exercise. “Because government actions

intentionally discriminating against religious exercise

a fortiori serve no legitimate purpose, no balancing

test” between other religious burdens and “legitimate,

secular purposes” “is necessary” or appropriate.

Brown v. Borough of Mahaffey, 35 F.3d 846, 850 (CA3

1994). And adding a separate “substantial burden”

test “to non-neutral government actions would make

petty harassment of religious institutions and exercise

immune from the protection of the First Amendment.”

Id. at 849–50.

Here, the Plaintiffs have shown that the

Defendants’ actions are not neutral or generally

applicable in multiple respects—especially as these

standards were recently clarified by this Court in

Tandon v. Newsom, 593 U.S. 61, 62–63 (2021), and

Fulton, 593 U.S. at 533–38. The Board revoked

parents’ ability to opt their children out of these

readings precisely because many religious parents

had been exercising the opt-out option under the

Board’s previous guidelines. See App. 68a–71a

(Quattlebaum, J., dissenting). This decision was

contrary to Maryland state regulations that require

that parents be notified and given the opportunity to

opt out of instruction on family life and sexuality, as

well as the Board’s own “Guidelines for Respecting

Religious Diversity.” App. 55a–56a (Quattlebaum, J.,

dissenting). What’s more, the decision to rescind

parents’ ability to opt-out did not apply generally—it

only applied to the Storybooks that many parents had

religious objections to. App. 56a (Quattlebaum, J.,

dissenting).

Fulton holds that state action is “not generally

applicable if it invites the government to consider the

particular reasons for a person’s conduct by providing

a mechanism for individualized exemptions.” 593 U.S.

at 533 (cleaned up). The Board insisted that it has

eliminated discretion by deciding that no opt-outs will

be permitted regarding the contested Storybooks. See

App. 70a (Quattlebaum, J., dissenting). But as Judge

Quattlebaum correctly explained, “that flip-flop was

itself a purely discretionary decision.” Ibid. Indeed, a

policy that permits “a school board to decide one day

that religious opt-outs are okay and the next day that

they are not—because accommodating the request is

not

reasonable

feasible—is

inherently

discretionary.”

App.

69a

(Quattlebaum,

J.,

dissenting).

Given that the Board’s policy discriminates against

these parents’ religious beliefs, no “substantial

burden” is required to show that their First

Amendment rights have been violated. The ongoing

confusion in the courts of appeals about the burdens of

discrimination against religious exercise provides yet

another reason for this Court to take this case.

CONCLUSION

For these reasons, the Court should grant the

petition.

Respectfully submitted,