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 A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

________________

BRIEF AMICI CURIAE OF CHRISTIAN LEGAL SOCIETY,

FIRST LIBERTY INSTITUTE, FOCUS ON THE FAMILY,

AND THE NATIONAL ASSOCIATION OF EVANGELICALS

IN SUPPORT OF PETITIONERS

________________

STEVEN T. MCFARLAND

LAURA NAMMO

CENTER FOR LAW &

RELIGIOUS FREEDOM

CHRISTIAN LEGAL

SOCIETY

8001 Braddock Rd.

Springfield, VA 22151

ERIC W. TREENE

Counsel of Record

ROMAN P. STORZER

STORZER & ASSOCIATES, PC

1025 Connecticut Ave., NW

Washington, D.C. 20036

(202) 857-9766

treene@storzerlaw.com

Counsel for Amici Curiae

QUESTION PRESENTED

Amici agree with the Petitioners’ statement of the

Question Presented:

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?

TABLE OF CONTENTS

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

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

INTERESTS OF AMICI CURIAE ............................. 1

SUMMARY OF ARGUMENT ..................................... 2

ARGUMENT ............................................................... 6

Framing This Case as One of Government

Control of its Property and Internal

Operations Rather Than Parental Rights

Conflicts With the Decisions of This

Court. ........................................................................... 6

II.

The Court of Appeals’ Conclusion That

Petitioners’ Asserted Injury Involves a

Non-Redressable Denial of Benefits

Conflicts With This Court’s Precedents. ............ 15

III. Respondents’ Notice and Opt-Out Policy

Is Not Generally Applicable and Thus

Strict Scrutiny Applies. ..................................... 18

CONCLUSION .......................................................... 20

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Bowen v. Roy,

476 U.S. 693 (1986) ........................................ 2, 3, 6

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) ........................................ 12, 17

Carson v. Makin,

596 U.S. 767 (2022) .................................... 4, 16, 17

Edwards v. Aguillard,

482 U.S. 578 (1987) ........................................ 13, 14

Emp’t Div. v. Smith,

494 U.S. 872 (1990) .......................................... 9, 10

Espinoza v. Montana Dep’t of Revenue,

591 U.S. 464 (2020) ................................ 4, 8, 10, 17

Fulton v. City of Philadelphia,

593 U.S. 522 (2021) .......................................... 5, 18

Hernandez v. Comm’r,

490 U.S. 680 (1989) .............................................. 11

Hobbie v. Unemployment Appeals Comm’n,

480 U.S. 136 (1987) .............................................. 16

Larson v. Valente,

456 U.S. 228 (1982) .............................................. 19

Cases--Continued

Lee v. Weisman,

505 U.S. 577 (1992) ........................................ 13, 14

Little Sisters of the Poor Saints Peter &

Paul Home v. Pennsylvania,

591 U.S. 657 (2020) ........................................ 11, 12

Lyng v. Northwest Indian Cemetery

Protective Ass’n,

485 U.S. 439 (1988) .............................. 2, 3, 6, 7, 16

McDaniel v. Paty,

435 U.S. 618 (1978) .............................................. 17

Meyer v. Nebraska,

262 U.S. 390 (1923) .......................................... 8, 10

Morse v. Frederick,

551 U.S. 393 (2007) .............................................. 16

Pierce v. Society of Sisters,

268 U.S. 510 (1925) ....................................... 4, 8-10

Roman Catholic Diocese of Brooklyn

v. Cuomo,

592 U.S. 14 (2020) ....................................... 5, 18-20

Sherbert v. Verner,

374 U.S. 398 (1963) ................................ 4, 5, 16, 17

Tandon v. Newsom,

593 U.S. 61 (2021) .......................................... 19, 20

Thomas v. Review Bd.,

450 U.S. 707 (1981) .............................................. 16

Trinity Lutheran Church of Columbia, Inc.

v. Comer,

582 U.S. 449 (2017) .......................................... 4, 17

Troxel v. Granville,

530 U.S. 57 (2000) ............................................ 8, 10

West Virginia Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) .............................................. 13

Wisconsin v. Yoder,

450 U.S. 707 (1981) ..................................... 7-10, 15

Statutes & Rules

MD. CODE REGS.

§§ 13A.04.18.01(D)(2)(e)(i) & (ii) ......................... 19

Other Authorities

Douglas Laycock & Thomas C. Berg, Protecting

Free Exercise under Smith and after Smith,

2020 CATO SUP. CT. REV. 33 (2020-2021) ................. 3

Ira C. Lupu, Where Rights Begin: The Problem

of Burdens on the Free Exercise of Religion,

102 HARV. L. REV. 933 (1989) ................................... 3

Michael W. McConnell, Religious Participation

in Public Programs—Religious Freedom at a

Crossroads, 59 U. CHI. L. REV. 115 (1992) ............... 3

INTERESTS OF AMICI CURIAE1

Christian Legal Society (“CLS”) is a nonprofit,

non-denominational

association

Christian

attorneys, law students, and law professors with

members in every state and chapters on over 125 law

school campuses. CLS believes that parents of any

faith have no higher right and responsibility than to

oversee the education and protection of their children;

therefore, it has filed amicus briefs in many of this

Court’s cases cited herein.

First Liberty Institute is a nonprofit, public

interest law firm dedicated to defending religious

liberty for all Americans. It has argued several

religious liberty cases before this Court, including

Groff v. DeJoy, 600 U.S. 447 (2023); Kennedy v.

Bremerton Sch. Dist., 597 U.S. 507 (2022); Carson v.

Makin, 596 U.S. 767 (2022); and American Legion v.

American Humanist Ass’n, 588 U.S. 29 (2019).

Focus on the Family is a global Christian

ministry dedicated to helping families thrive by

providing resources to parents as they raise their

children according to morals and values grounded in

biblical principles. Focus on the Family believes

parents have the right to exercise oversight over what

their children are taught in schools about issues of

gender and sexuality, including a right to opt out of

1 Pursuant to Rule 37.6, no counsel for any party in this case

wrote any part of this amici brief, and no person except amici

contributed to the costs of its preparation. Counsel for amici

notified counsel for all parties on September 30, 2024, of their

intention to file this brief.

teaching or curriculum that may violate their

sincerely held religious beliefs.

The National Association of Evangelicals is

the largest network of evangelical churches,

denominations, colleges, and independent ministries

in the United States. It serves forty member

denominations, as well as numerous evangelical

associations, missions, social-service charities,

refugee and humanitarian aid agencies, colleges,

seminaries, and independent churches.

SUMMARY OF ARGUMENT

The court of appeals framed its approach to the

issues in this case around two decisions of this Court,

Lyng v. Northwest Indian Cemetery Protective Ass’n,

485 U.S. 439 (1988), and Bowen v. Roy, 476 U.S. 693

(1986). See Pet. App. 25a-26a. This framing is both

startling and sweeping. It is startling in its choice of

two cases setting forth Free Exercise standards for a

narrow category of cases involving a type of

government action that does not apply here, and

sweeping in the far-reaching effects this will have in

foreclosing future claims involving even the most

severe burdens on religious exercise.

Lyng and Roy involved Free Exercise Clause

challenges to a very specific set of government actions,

namely government acting as proprietor of real

property or government conducting its internal

operations in a way that someone takes issue with on

religious grounds. This arose with real property in

Lyng, where Native Americans objected on religious

grounds to construction of a road on U.S. Forest

Service land.2 In Roy, it arose regarding internal

governmental

operations

addressing

the

government’s use of social security numbers to

identify benefit recipients.

The court of appeals seized on the basic holdings of

these two cases, namely that the government, as a

general matter, does not impose a redressable injury

when third parties object to how the government

manages its real property or conducts its internal

operations. It then applied these principles to craft a

rule for a very different scenario: public school

students and their parents who allege that certain

curricular materials will cause them religious harm

and seek notice and an opt-out when those harmful

materials are taught. Analogizing public school

students seeking to avoid the direct imposition of

religiously harmful material upon them to third

Lyng has faced criticism that it did not fully address the

problems inherent in the facts of that case: whether the land

could be deemed wholly the government’s to do with as it wished

in light of the current and traditional use of the land in question

by Native Americans for religious purposes, as well as the special

relationship of Native Americans to the federal government. The

plaintiffs in Lyng thus arguably had a specific claim of injury

from the construction of the road, and many have called for it to

be revisited. See, e.g., Douglas Laycock & Thomas C. Berg,

Protecting Free Exercise under Smith and after Smith, 2020 CATO

SUP. CT. REV. 33, 58-59 (2020-2021); Michael W. McConnell,

Religious Participation in Public Programs—Religious Freedom

at a Crossroads, 59 U. CHI. L. REV. 115, 125-26, 170-71 (1992);

Ira C. Lupu, Where Rights Begin: The Problem of Burdens on the

Free Exercise of Religion, 102 HARV. L. REV. 933, 945-46, 973-76

(1989). An example that does not have this factual complexity

would be a citizen objecting to an Army office building being

constructed in the shape of a five-pointed star on the ground that

this can be an occult symbol and impacts her faith in some way.

parties’ objection to the government’s internal

operations and use of government land is an

astounding leap.

First, it evades a long line of holdings regarding

the religious rights of parents to direct the upbringing

of their children. While Pierce v. Society of Sisters, 268

U.S. 510 (1925), acknowledged the fundamental

principle that children “are not the mere creature of

the state,” the court of appeals’ ruling necessarily

implies, whether it recognized it or not, that with

respect to what happens in public school classrooms

during instructional time, children are exactly that.

Second, the decision’s characterization of public

schooling as the government doing as it wishes with

its own property and internal operations could apply

equally to most of the Court’s recent free exercise

decisions. Money is of course a form of property, and

government programs are a form of government

operations. If, as the court of appeals held, the

government is free to utilize its resources as it wishes

without regard to free exercise impacts, then Carson

v. Makin, 596 U.S. 767 (2022), and Espinoza v.

Montana Dep’t of Revenue, 591 U.S. 464 (2020), would

have come out the other way. In Carson, after all,

Maine insisted that it was trying to offer the

equivalent of a public education, 596 U.S. at 782-85,

and in Espinoza, 591 U.S. at 484-86, the state asserted

fealty to its constitution and the state’s chosen way of

handling government educational funds with regard

to religious institutions. But this Court rejected such

arguments, along with similar ones in Trinity

Lutheran Church of Columbia, Inc. v. Comer, 582 U.S.

449 (2017). Indeed, even seminal free exercise

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

could not stand under the court of appeals’ reasoning.

After all, what was Sherbert but a case of the

government operating a social welfare program and

limiting unemployment benefits in the way it deemed

best, namely limiting payment to those who would

accept any work available?

A third error of the court of appeals that calls for

this Court’s intervention is its rejection of Petitioners’

argument that strict scrutiny applies under the Free

Exercise Clause because Respondents reserve for

themselves the discretion to supply notice and an optout for sex education but no notice and opt-out for its

LGBTQ curriculum. This is a mechanism of

discretionary exemptions, and it represents a value

judgment that persons with religious and nonreligious objections to sex education deserve such

consideration, but Petitioners like these who object to

the LGBTQ curriculum do not. It thus triggers strict

scrutiny under both Fulton v. City of Philadelphia,

593 U.S. 522 (2021), and Roman Catholic Diocese of

Brooklyn v. Cuomo, 592 U.S. 14 (2020). Some families

of faith may believe that older children learning about

sexual activity, venereal diseases and their

prevention, and contraception in sex education is

more of an imposition on their religion than teaching

younger children that gender is purely a choice and

discussing same-sex relationships. For other families,

however, the opposite will be true. But the

government is not permitted to favor some religious

beliefs over others without satisfying strict scrutiny

review.

The court of appeals’ decision is in sharp conflict

with this Court’s precedents. There is also a conflict

among the circuit courts on these issues. This Court

should therefore grant review.

ARGUMENT

I. Framing This Case as One of Government

Control of its Property and Internal

Operations Rather Than Parental Rights

Conflicts With the Decisions of This Court.

The court of appeals framed this case as one

involving not government infringement upon parents’

fundamental right to guide the religious upbringing of

their children, but rather as one of parents trying to

alter a school curriculum to fit their religious views.

This fundamental misconception led the court to

erroneously apply this Court’s precedents dealing

with challenges to the government’s own operations.

Citing Roy, the court of appeals stated that the Free

Exercise Clause is “written in terms of what the

government cannot do to the individual, not in terms

of what the individual can extract from the

government.” Pet. App. 25a (quoting Roy, 476 U.S. at

700). Petitioners here, however, seek nothing from the

government other than the ability to exempt their

children from a curriculum that violates their

religious beliefs.

The court of appeals also twice quoted language

from Roy stating that the Free Exercise Clause does

not “require the Government itself to behave in ways

that the individual believes will further his or her

spiritual development or that of his or her family.”

Pet. App. 25a, 39a (quoting Roy, 476 U.S. at 699). It

viewed the present case as one, like Roy, focused on

how the government “conduct[s] its own internal

affairs.” Pet. App. 40a (quoting Roy, 476 U.S. at 699).

The court of appeals likewise cites Lyng for the

proposition that free exercise rights do not extend to

“the legitimate conduct by government of its own

affairs.” Pet. App. 25a (quoting Lyng, 485 U.S. at 451).

But the parents in this case are not asking the

government to remove materials from its curriculum

or add new materials that the parents think would be

better. They are asking only that certain materials,

which they believe interfere with their children’s

religious upbringing, not be imposed on their children

and that they be given notice and an opportunity to

opt out of exposure to what they believe are religiously

harmful materials. Just as the Amish families in

Wisconsin v. Yoder, 406 U.S. 205 (1972), did not ask

for the public schools to change how they conducted

their educational programs to conform to the Amish

educational way, but rather asked to be able to opt out

after eighth grade, so, too, do these parents not seek

to change anything about what the Respondents’

schools are teaching, but rather ask that their

children be able to opt out of those things that

interfere with their exercise of their faith.

The court of appeals minimized the relevance of

Yoder to this case, saying that Yoder “has been

markedly circumscribed within free exercise

precedent in the decades since it was decided.” Pet.

App. 37a. See also id. at 39a. (“[I]n Yoder, the Supreme

Court applied a narrower principle to a singular set of

facts.”). While some—but not all—lower courts have

declined to apply Yoder to cases like this one (see Pet.

at 19-23), in this Court’s jurisprudence Yoder has

never been “markedly circumscribed.” Rather, it

remains a strong and frequently cited statement of

the fundamental right of parents to direct the

religious upbringing of their children. As this Court

held recently in Espinoza: “Drawing on ‘enduring

American tradition,’ we have long recognized the

rights of parents to direct ‘the religious upbringing’ of

their children.” 591 U.S. at 486 (quoting Yoder, 406

U.S. at 213-14, 232). Similarly, this Court, in Troxel v.

Granville, 530 U.S. 57, 65 (2000), citing Yoder and

other cases, stated that “the interest of parents in the

care, custody, and control of their children [] is

perhaps the oldest of the fundamental liberty

interests recognized by this Court.” The Court

explained that the Due Process Clause protects “the

right of parents to ‘establish a home and bring up

children’ and ‘to control the education of their own.’”

Id. at 65 (quoting Meyer v. Nebraska, 262 U.S. 390,

399, 401 (1923)).

This Court’s grounding of this right in both the

Free Exercise Clause and the Due Process Clause has

its roots in Meyer, addressing a ban on foreign

language instruction, and in Pierce, which invalidated

an Oregon law requiring all parents to send their

children to public school. Pierce (like Meyer) was

decided before the incorporation of the Free Exercise

Clause and was thus decided only under the Due

Process Clause, but it nonetheless is a holding with

strong religious elements, underscoring that parents

have the right to inculcate values such as religion,

which are outside the province of the state: “The child

is not the mere creature of the state; those who

nurture him and direct his destiny have the right,

coupled with the high duty, to recognize and prepare

him for additional obligations.” Pierce, 268 U.S. at

535.

The Court in Yoder drew extensively on Pierce,

holding that “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.” 406 U.S. at 213-14. Indeed, the Court

concluded that

only those interests of the highest order

and those not otherwise served can

overbalance legitimate claims to the free

exercise of religion. We can accept it as

settled, therefore, that, however strong the

State’s interest in universal compulsory

education, it is by no means absolute to the

exclusion or subordination of all other

interests.

Id. at 215.

This Court, in Emp’t Div. v. Smith, 494 U.S. 872

(1990), while describing Yoder as an exception to the

general rule regarding neutral and generally

applicable laws, nonetheless described in very broad

terms the untouched exception to the Smith rule when

the state interferes with parents’ religious upbringing

of their children, citing both Pierce and Yoder:

The only decisions in which we have held

that

the

First

Amendment

bars

application of a neutral, generally

applicable law to religiously motivated

action have involved not the Free Exercise

Clause alone, but the Free Exercise Clause

in conjunction with other constitutional

protections, such as . . . the right of

parents, acknowledged in Pierce v. Society

of Sisters, 268 U.S. 510, 45 S. Ct. 571, 69

L. Ed. 1070 (1925), to direct the education

of their children, see Wisconsin v. Yoder,

406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d

15 (1972) (invalidating compulsory schoolattendance laws as applied to Amish

parents who refused on religious grounds

to send their children to school).

494 U.S. at 881. This Court, far from “markedly

circumscrib[ing]” the holding of Yoder as the court of

appeals believed, in fact has continually situated

Yoder within the line of free exercise and due process

fundamental rights cases running from Meyer and

Pierce through Troxel and Espinoza.

The court of appeals also sought to minimize the

harm to Petitioners, saying that exposing their

children to these materials is not the equivalent to the

harm in Yoder, where without an opt-out the Amish

families were forced to send their children to school

against their wills. This is wrong on two grounds.

First, the court of appeals enmeshed itself in religious

value judgments, finding the imposition on the

religion of the Amish to be qualitatively different from

the imposition on these Petitioners. The Petitioners in

this case have set forth in detail how they and their

children are injured by the government’s actions.

Petitioners Mahmoud and Barakat, who are Muslim,

presented evidence that their faith forbids them from

“[i]ntentionally exposing our young, impressionable,

elementary-age son to activities and curriculum on

sex, sexuality, and gender that undermine Islamic

teachings,” Pet. App. 532a, and removed their son

from public school after the district court rejected

their claim. Pet. at 9. Likewise, the Persaks, who are

Roman Catholic, believe that exposing their

“elementary-aged daughters to viewpoints on sex,

sexuality, and gender that contradict Catholic

teaching on these subjects is inappropriate and

conflicts with our religious duty to raise our children

in accordance with Catholic teaching.” Pet. App. 544a.

Petitioners Jeff and Svitlana Roman, who are Roman

Catholic and Ukrainian Orthodox, respectively,

believe in the teaching of the Roman Catholic Church

on sexuality and sexual identity and believe they have

a “sacred obligation to teach these principles to our

son and to encourage him at appropriate times to

embrace these principles and our religious way of life.”

Id. at 538a. They also removed their son from public

school as a result of the district court denying a

preliminary injunction. Pet. at 10. Likewise, one of the

members of Petitioner Kids First removed their

disabled child from the public school because of the

Pride storybooks, incurring costs of $25,000 per year.

Pet. App. 648a-649a.

There is no indication whatsoever in the record

that these Petitioners are insincere in their religious

beliefs. Further, this Court has been clear over many

decades that courts are not to judge the centrality or

validity of plaintiffs’ beliefs. Rather, sincere

assertions of religious beliefs, and the nature of the

burdens upon them that a plaintiff articulates, must

be accepted. “It is not within the judicial ken to

question the centrality of particular beliefs or

practices to a faith, or the validity of particular

litigants’ interpretations of those creeds.” Hernandez

v. Comm’r, 490 U.S. 680, 699 (1989); see also Little

Sisters of the Poor Saints Peter & Paul Home v.

Pennsylvania, 591 U.S. 657, 681 (2020) (when

religious beliefs are sincerely held, the government

cannot “tell the plaintiffs that their beliefs are

flawed”); Burwell v. Hobby Lobby Stores, Inc., 573

U.S. 682, 685-86 (2014) (question was whether

government “imposes a substantial burden on the

ability of the objecting party to conduct business in

accordance with their religious beliefs. . . . [O]ur

narrow function in this context is to determine

whether the plaintiffs’ line drawing reflects an honest

conviction.”) (cleaned up). As the dissent in the court

of appeals in this case described it:

These parents’ faith dictates that they—

not others—teach their children about sex,

human sexuality, gender and family life.

Their faiths dictate that they shield their

children from teachings that contradict

and undermine their religious views on

those topics. And no matter how you slice

it, the board’s decision to deny religious

opt-outs prevents the parents from

exercising these aspects of their faith if

they want their children to obtain a public

education.

Pet. App. 63a. The majority’s parsing and weighing of

the parents’ sincere religious beliefs, and concluding

that this is less of an imposition on religion than

making an Amish child go to school after the eighth

grade, is at odds with this Court’s repeated

instruction that courts not make such religious

determinations.

Second, the actions of Respondents are objectively

coercive under this Court’s precedents. This Court has

stressed that grade-school teachers have a powerful

influence on children that raises concerns when that

influence conflicts with faith and conscience. As the

Court stated in 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.” Likewise, the Court

observed in Lee v. Weisman, 505 U.S. 577, 592 (1992),

that “there are heightened concerns with protecting

freedom of conscience from subtle coercive pressure in

the elementary and secondary public schools.” See

also West Virginia Bd. of Educ. v. Barnette, 319 U.S.

624, 632, 637 (1943) (recognizing the coercive

pressure of elementary school classrooms, where

“attendance is not optional,” and thus school officials

must exercise “scrupulous protection of Constitutional

freedoms of the individual, if we are not to strangle

the free mind at its source”).

Here, the written materials in the LGBTQ

curriculum, and the accompanying instructional

materials for teachers, are specifically designed to

change the thinking of students. The book

“Intersection Allies,” designed for “Kindergarten

through Grade 5,” Pet. App. 236a, tells children about

being non-binary and transgender, id. at 350a, and

declares: “standing together, we’ll rewrite the norms.”

Id. at 345a. The book “Born Ready,” also for K-5, Pet.

App. 240a, features a biological girl who identifies as

a boy. When her brother says that this doesn’t make

sense, his mother corrects him and says “[n]ot

everything needs to make sense. This is about love.”

Id. at 465a. The teachers’ guide instructs that

teachers can respond to questions as follows: “Our

body parts do not decide our gender. Our gender

comes from our inside—we might feel different than

what people tell us we are. We know ourselves best.”

App. 630a-631a. As the dissent below in this case also

points out, another instruction document advises

teachers to “[d]isrupt the either/or thinking by saying

something like: actually, people of any gender can like

whoever they like. . . . Do you think it is fair for people

to decide for us who we can and can’t like?” Id. at 62a.

Another training sheet asks: “Is heternonormitivity

reinforced or disrupted?” and “Is cisnormativity

reinforced or disrupted?” Id. at 622a. Religious

parents can accurately read these materials as

comprising a deliberate program to counter the

religious teachings their children receive at home

about sexuality and gender.

These, and other examples recounted in the

Petition, see Pet. at 11-14, reveal a steady stream of

books and instructional materials for teachers

designed to profoundly impact the beliefs of the

students. The result, as counsel for the Respondents

frankly admitted, is that students “may come away

from [the] instruction with a new perspective not easily

contravened by their parents.” Id. at 14 (emphasis

added). These materials have the coercive power this

Court expressed concern about in Aguillard and Lee.

But, more importantly for the constitutional analysis

of this case, these parents have presented

unchallenged evidence that they believe these

materials interfere with their religious upbringing of

their children and cause their children religious harm.

That is the dispositive question that this Court has

emphasized is the test, and it is easily met here.

II. The Court of Appeals’ Conclusion That

Petitioners’ Asserted Injury Involves a NonRedressable Denial of Benefits Conflicts

With This Court’s Precedents.

In addition to trying to distinguish Yoder based on

the nature and degree of religious harm involved, Pet.

App. 36a-40a, the court of appeals also dismissed

Petitioners’ argument that the Respondents

improperly pressured Petitioners to violate their

religious beliefs as a condition of receiving the benefit

of a public education. Id. at 44a-48a. The court of

appeals concluded that “government coercion does not

exist merely because an individual may incur

increased costs as a consequence of deciding to

exercise their religious faith in a particular way.” Id.

at 47a.

A review of this Court’s free exercise

jurisprudence, however, reveals the very opposite. It

is true, as the court of appeals noted, that in Yoder the

parents were “affirmatively compelled . . . under

threat of criminal sanction, to perform acts

undeniably at odds with fundamental tenets of their

religious beliefs.” Id. at 39a (quoting Yoder, 406 U.S.

at 218). Thus, in Yoder, the challenged government

action was directly forcing, on pain of criminal

sanction, the conduct that was religiously injurious.

But such incidents of government forcing conduct are

far less common in free exercise cases than

government conditioning a benefit on abandoning

one’s religious beliefs or practices. In Sherbert, the

government did not force the plaintiff to work on

Saturdays, her Sabbath. Rather, the government

required this as a condition of receiving

unemployment benefits. The same is true for all of

this Court’s free exercise unemployment cases. The

free exercise of religion in these cases is “infringed by

the denial of or placing of conditions upon a benefit or

privilege,” Sherbert, 374 U.S. at 404, “substantial

pressure” to modify religious practices, Thomas v.

Review Bd., 450 U.S. 707, 718 (1981), and by being

“forced to choose between fidelity to religious belief”

and “the forfeiture of [public] benefits.” Hobbie v.

Unemployment Appeals Comm’n, 480 U.S. 136, 144

(1987).

Likewise, this pressure to modify religious beliefs

and practice is a prominent feature of this Court’s

most recent free exercise cases. Public education is an

extremely valuable benefit and, for those who cannot

afford private school or whose personal circumstances

do not permit homeschooling, it is more than just a

benefit, but an unavoidable requirement. “Most

parents, realistically, have no choice but to send their

children to a public school and little ability to

influence what occurs in the school.” Morse v.

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

concurring). But even for parents who have options,

“[t]he Free Exercise Clause of the First Amendment

protects against ‘indirect coercion or penalties on the

free exercise of religion, not just outright

prohibitions.’” Carson, 596 U.S. at 778 (quoting Lyng,

485 U.S. at 450). The Court in Carson invalidated the

State of Maine’s exclusion of religious (but not other

private) schools from its tuition program for students

without a public school in their district, over the

state’s objection that it was merely trying to finance

the equivalent of public-school instruction. Id. at 78285. Similarly, the Court in Espinoza struck down the

exclusion of religious schools from a scholarship

program. The Court held that “[p]lacing such a

condition on benefits or privileges ‘inevitably deters or

discourages the exercise of First Amendment rights.’”

591 U.S. at 478 (quoting Trinity Lutheran, 582 U.S. at

463); cf. Hobby Lobby, 573 U.S. at 720-22 (substantial

burden under Religious Freedom Restoration Act

created by financial penalties for not providing

contraceptive coverage).

As this Court held more than 60 years ago, “[i]t is

too late in the day to doubt that the liberties of religion

and expression may be infringed by the denial of or

placing of conditions upon a benefit or privilege.”

Sherbert, 374 U.S. at 404; see also McDaniel v. Paty,

435 U.S. 618, 633 (1978) (Brennan, J., concurring in

judgment) (The “proposition—that the law does not

interfere with free exercise because it does not directly

prohibit religious activity, but merely conditions

eligibility for office on its abandonment—is . . .

squarely rejected by precedent.”).

Here, as the dissent below observed: “The board’s

refusal to grant the parents’ requests for religious optouts to instruction . . . forces the parents to make a

choice—either adhere to their faith or receive a free

public education for their children. They cannot do

both.” Pet. App. 62a. Under this Court’s precedents,

that is a burden under the Free Exercise Clause that

triggers strict scrutiny.

III. Respondants’ Notice and Opt-Out Policy Is

Not Generally Applicable and Thus Strict

Scrutiny Applies.

The court of appeals rejected Petitioners’ claim

that strict scrutiny review was required because

Respondents were infringing Petitioners’ religious

exercise through imposition of a rule that is not

generally applicable. Pet. App. 19a, 29a-30a. But

under the Court’s precedents, the Respondents’

refusal to grant notice and opt-outs to these parents

was a non-generally applicable action for two separate

reasons.

First, the Respondents reserved for themselves

discretion on when to provide parents with curricular

opt-outs and when not to. They originally permitted

opt-outs for the LGBTQ curriculum but then reversed

course. Id. at 185a, 657a. As the dissent explained, the

schools “have discretion to grant religious opt-out

requests. A school decides on an individual basis if the

requested religious accommodation is ‘reasonable’ and

‘feasible.’” Id. at 68a. The government’s decision to

reserve such discretion to itself triggers strict scrutiny

review when such discretion is withheld from a

religious objector. Fulton, 593 U.S. at 533-38.

Second,

Respondents’

actions

constitute

governmental value judgments favoring opt-outs for

certain categories of reasons and refusing to provide

opt-outs for these parents’ religious reasons. The

Respondents provided, and continue to provide, notice

and opt-outs for parents objecting to sex education,

but refuse to provide opt-outs for these parents’

sincere religious objections to the LGBTQ curriculum.

This conflicts with this Court’s decisions in Diocese of

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

in which the government’s favored treatment for

various categories of places where people assembled

triggered strict scrutiny under the Free Exercise

Clause when similar treatment was denied for

religious assemblies. Certain things that some people

object to exposing their children to—the content of

sex-ed curriculum—are favored with opt-outs, while

Petitioners’ religious objections to the LGBTQ

curriculum are disfavored. This triggers strict

scrutiny under Diocese of Brooklyn and Tandon.

Additionally, it is no answer that many of the

favored objectors to the sex-ed curriculum likely have

religious objections. It is surely more of a free exercise

violation, not less, if certain religions or religious

beliefs receive favorable treatment over others. See,

e.g., Larson v. Valente, 456 U.S. 228 (1982) (singling

out for disfavored treatment religious groups that

solicited

door-to-door

was

unconstitutional

denominational preference).

It is likewise no answer that the State of Maryland

requires Respondents to establish procedures for sexed

opt-outs.

See

MD.

CODE

REGS.

§§13A.04.18.01(D)(2)(e)(i) & (ii). The Respondents are

governmental actors, all of whose power and authority

ultimately comes from the State of Maryland. The

bottom line is that those who object to learning about

sexual activity, contraception, venereal disease, and

similar subjects are favored and are given opt-outs by

the Respondents, but those objecting to the LGBTQ

curriculum based on their sincere religious beliefs are

disfavored and denied opt-outs by Respondents. This

triggers strict scrutiny under Diocese of Brooklyn and

Tandon.

CONCLUSION

For the foregoing reasons, and the reasons set

forth by the Petitioners, the Petition should be

granted.

Respectfully submitted.