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

Supreme Court briefOct 15, 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 OF THE CHURCH OF JESUS CHRIST

OF LATTER-DAY SAINTS; THE ETHICS

AND RELIGIOUS LIBERTY COMMISSION OF

THE SOUTHERN BAPTIST CONVENTION;

THE GENERAL CONFERENCE OF

SEVENTH-DAY ADVENTISTS; AND

COALITION FOR JEWISH VALUES AS

AMICI CURIAE SUPPORTING PETITIONERS

————

R. SHAWN GUNNARSON

Counsel of Record

CHRISTOPHER A. BATES

JAROM M. HARRISON

KIRTON | MCCONKIE

36 South State Street

Suite 1900

Salt Lake City, Utah 84111

(801) 328-3600

sgunnarson@kmclaw.com

Counsel for Amici Curiae

October 15, 2024

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

TABLE OF CONTENTS

Page

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

INTEREST OF AMICI CURIAE ........................

INTRODUCTION ................................................

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

ARGUMENT ........................................................

THE QUESTION PRESENTED HOLDS

NATIONAL IMPORTANCE .............................

A. Petitioners’ Objections Are Rooted in

Shared Beliefs About Marriage,

Sexuality, and Gender ..........................

1. Petitioners have a religious duty

to be their children’s primary

guardians in matters concerning

marriage, sexuality, and gender ....

2. Petitioners believe that sexual

desire and expression belong only

within a marriage between a man

and a woman ..................................

3. Petitioners believe that gender is

solely a function of birth sex...........

B. Petitioners’ Religious Beliefs Track

the Doctrines of Many Religious

Faiths ...................................................

1. Diverse religions believe that

parents have a religious duty to

guide their children regarding

marriage, sexuality, and gender ....

(i)

TABLE OF CONTENTS—Continued

Page

II.

2. Diverse religions share petitioners’

belief that sexual expression belongs

only between a married man and

woman ............................................

3. Diverse religions share petitioners’

belief that gender is a function of

birth sex ..........................................

MONTGOMERY COUNTY LACKS COMPELLING INTERESTS TO SATISFY STRICT

SCRUTINY ...................................................

A. MCPS’s Animus Toward Petitioners’

Religion Triggers Strict Scrutiny ........

B. Montgomery

County’s

Asserted

Interests Do Not Satisfy Strict

Scrutiny................................................

1. Only genuinely compelling interests

justify a substantial burden on

religious exercise .............................

2. Montgomery County’s asserted

interests

are

vague

and

standardless ...................................

3. No compelling interest justifies

denying

accommodations

for

religious parents .............................

4. Neither Parker nor Mozert aids

MCPS ..............................................

iii

TABLE OF CONTENTS—Continued

Page

III. THIS CASE OFFERS AN IDEAL VEHICLE TO

RESOLVE THE QUESTION PRESENTED .........

A. The Facts Are Cleanly Presented .......

B. This Case Offers an Important Opportunity to Vindicate Parental Rights ...

C. Petitioners’ Requested Remedies Are

Modest and Easily Administered........

CONCLUSION ....................................................

TABLE OF AUTHORITIES

CASES

Page(s)

Bates v. Pakseresht,

No. 23-4169 (9th Cir.) ...............................

Bd. of Educ., Island Trees Union Free Sch.

Dist. No. 26 v. Pico,

457 U.S. 853 (1982) ...................................

Boerne v. City of Flores,

521 U.S. 507 (1997) ...................................

Carey v. Population Servs., Int’l,

431 U.S. 678 (1977) ...................................

Chino Valley Unified Sch. Dist. v.

Newsom,

No. 2:24-cv-1941 (E.D. Cal.) .....................

Church of the Lukumi Babalu Aye, Inc. v.

City of Hialeah,

508 U.S. 520 (1993) ................................... 14, 18

Emp’t Div., Dep’t of Human Res. of Or. v.

Smith, 494 U.S. 872 (1990).......................

Fellowship of Christian Athletes v. San

Jose Unified Sch. Dist. Bd. of Educ.,

82 F.4th 664 (9th Cir. 2023) ..................... 16–17

Fulton v. City of Philadelphia,

593 U.S. 522 (2021) ......................... 2, 13, 16, 18

Good News Club v. Milford Cent. Sch.,

533 U.S. 98 (2001) .....................................

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) ................................... 15–16

L.W. v. Skrmetti,

83 F.4th 460 (6th Cir. 2023) .....................

TABLE OF AUTHORITIES—Continued

Page(s)

Masterpiece Cakeshop, Ltd. v. Colo. Civil

Rights Comm’n,

584 U.S. 617 (2018) ................................... 13, 14

Meyer v. Nebraska,

262 U.S. 390 (1923) ...................................

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

827 F.2d 1058 (6th Cir. 1987) .................. 20, 21

Parker v. Hurley,

514 F.3d 87 (1st Cir. 2008) ......................

Pierce v. Soc’y of Sisters of the Holy Names

of Jesus & Mary,

268 U.S. 510 (1925) ...................................

Students for Fair Admissions, Inc. v.

President & Fellows of Harvard Coll.,

600 U.S. 181 (2023) ................................... 16, 17

Thomas v. Review Bd. of Ind. Emp’t Sec.

Div., 450 U.S. 707 (1981) ..........................

W. Va. State Bd. of Educ. v. Barnette,

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

Wisconsin v. Yoder,

406 U.S. 205 (1972) ................................... 16, 22

CONSTITUTION

U.S. Const. amend. I ....................................

STATUTES

20 U.S.C. § 1232a .........................................

TABLE OF AUTHORITIES—Continued

REGULATIONS

Page(s)

Md. Code Regs. § 13A.04.18.01(D)(2)(e)(i) ... 19, 23

Md. Code Regs. § 13A.04.18.01(D)(2)(e)(iii) ...

COURT FILINGS

Defs.-Appellees’ Br., Mahmoud v. McKnight,

No. 23-1890 (4th Cir. Oct. 24, 2023) ........ 16–20

OTHER AUTHORITIES

Al-Adab Al-Mufrad .......................................

Catechism of the Catholic Church (USCCB

2d ed. 2019) ....................................... 6, 7, 10, 12

The Church of Jesus Christ of Latter-day

Saints, General Handbook: Serving in

The Church of Jesus Christ of Latter-day

Saints ........................................................ 9, 12

Derech Project, Sex and Relationships

Education in Jewish Schools (2006) ........

The First Presidency and Council of the

Twelve Apostles of The Church of Jesus

Christ of Latter-day Saints, The Family:

A Proclamation to the World (Sept. 23,

1995) .......................................................... 11, 12

Holy Bible .......................................... 6, 7, 9, 10, 12

Holy Synod of Bishops of the Orthodox

Church in America, Synodal Affirmations

on Marriage, Family, Sexuality, and the

Sanctity of Life (July 1992).......................

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Kecia Ali & Oliver Lehman, Islam: The Key

Concepts (2008) ......................................... 11–12

Man, Woman, and Priesthood (Peter Moore

ed., 1978) ................................................... 12–13

Navigating Differences: Clarifying Sexual

and Gender Ethics in Islam (May 23,

2023) .........................................................

Philip Rieff, The Triumph of the

Therapeutic (1966) ...................................

Pope John Paul II, Apostolic Exhortation:

Familiaries Consortio (Nov. 22, 1981) .....

Pope Paul VI, Dogmatic Constitution on

the Church: Lumen Gentium (Nov. 21,

1964) .........................................................

Qur’an ......................................................... 6, 7, 10

Rabbi Tzvi Hersh Weinreb, Orthodox Response

to Same-Sex Marriage (June 5, 2006) ......

Siti Suhaila Ihwani et al., Sex Education:

An Overview from Quranic Approach, 1 J.

Quran Sunnah Educ. & Special Needs,

no. 2 (Dec. 2017) ........................................

Southern Baptist Convention, Baptist Faith &

Message 2000 (June 14, 2000) .............. 9, 10, 12

Standing Conference of the Canonical

Orthodox Bishops in the Americas,

Statement on Moral Crisis in Our Nation

(May 16, 2012)........................................... 11, 12

INTERESTS OF AMICI CURIAE 1

Amici are religious organizations with a surpassing

interest in the vigorous application of the Constitution’s

guarantee of religious freedom. That freedom includes

the right of parents to decide how to educate their

children in the religiously significant matters of

marriage, sexuality, and gender. Montgomery County

Public Schools (MCPS) has violated that right by

denying petitioners notice or an opportunity to remove

their children from a novel program teaching young

students LGBT-related topics from a viewpoint hostile

to traditional religion. We urge the Court to grant

review to protect petitioners’ exercise of religion—and

to prevent other public school systems from following

Montgomery County’s deleterious example.

INTRODUCTION

Montgomery County Public Schools has adopted a

reading program that uses storybooks to introduce

LGBT-related concepts and concerns to children in

kindergarten through fifth grade (Pride Storybooks).

Petitioners objected to their children’s participation

because these Storybooks interfere with parents’ ability

to transmit their faith to their children by contradicting traditional religious teachings on marriage,

sexuality, and gender. MCPS has denied the basic

accommodations of notice and opt-outs to objecting

parents. That refusal imposes a burden on petitioners’

Pursuant to Supreme Court Rule 37.6, amici state that no

counsel for any party authored this brief in whole or in part and

that no entity or person, aside from amici, their members, and

their counsel, made any monetary contribution toward the preparation or submission of this brief. Pursuant to Rule 37.2, amici

further certify that counsel of record for all parties received notice

of the intent to file this brief at least 10 days before it was due.

religious exercise by putting them to an intolerable

choice: Accept the schools’ determination to undermine

parents’ religious teachings, or else educate their

children at their own expense. Cf. Fulton v. City of

Philadelphia, 593 U.S. 522, 532 (2021). Yet the Fourth

Circuit held that petitioners have suffered no burden

on their religious exercise. Pet.App.48a. That decision

is incorrect under the Free Exercise Clause and merits

this Court’s review.

In October 2022, MCPS launched a mandatory

reading program using the Storybooks in language

arts classes. Here is what a few of the Storybooks say:

♦ Pride Puppy tells “the story of two women

taking their children to a pride parade, where

their puppy gets lost.” Pet.App.175a. Children

are asked “to search for images of * * * the

‘intersex [flag],’ a ‘[drag] king,’ ‘leather,’ a ‘lip

ring,’ a [drag] queen,’ ‘underwear,’ and a

celebrated sex worker.” Ibid.; see id. at 270a.

The school board approved this book for threeand four-year-olds. See id. at 175a.

♦ Intersection Allies tells first graders that by

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

at 345a (emphasis added). Official notes explain

what it means to be “transgender” and “nonbinary.” Id. at 350a. And the notes invite

children to consider, “What pronouns fit you

best?” Ibid. (emphasis in original).

♦ Love, Violet, a book written for fourth graders,

portrays a romance between two young girls,

Violet and Mira. Id. at 429a. For Violet, “[o]nly

one made [her] heart skip.” Id. at 431a. She

asks herself, “What if Mira didn’t want her

valentine? What if * * * they never adventured?”

Id. at 437a. But Violet gives Mira a valentine

and Mira gives Violet a locket. Id. at 445a. The

story ends with the girls holding hands and

going on “an adventure.” Id. at 446a.

MCPS guidelines for teachers encourage “disrupt[ing]”

heteronormative assumptions about romantic attachment by saying that “people of any gender can like

whoever they like.” Id. at 629a. An endorsement of

gender nonconformity is the suggested response to

questions about a transgender person’s anatomy. “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.” Id. at 630a.

Petitioners and many other parents objected to the

Storybook program and requested prior notice of when

the Storybooks would be discussed in their children’s

classes along with an opportunity for their children to

be excused from those discussions. During the

program’s first year, MCPS schools provided these

accommodations. Id. at 97a–98a. But beginning in

August 2023, MCPS has refused to provide either

notice or opt-out. Ibid. This lawsuit followed.

SUMMARY OF ARGUMENT

Petitioners’ objections to Montgomery County’s

reading program are founded on their sincerely held

religious belief that parents have a sacred duty to

guide their children in matters concerning marriage,

sexuality, and gender. They are not alone. Traditional

Christians, Jews, and Muslims, along with those of

many other religions, agree. Like petitioners, these

faith communities also believe that gender is solely a

function of birth sex, that one’s identity as male or

female based on birth sex should be embraced, and

that sexual desire and expression belong only between

a man and a woman who are married.

The County has imposed a severe burden on petitioners’

religious exercise by refusing to notify them when the

new reading program will appear in their children’s

classrooms or allow objecting parents an opportunity

for their children to be excused from participating.

Without these modest accommodations, petitioners

and other parents cannot effectively transmit their

faith to their children in matters concerning marriage,

sexuality, and gender.

Because petitioners have suffered a substantial

burden on their religious exercise, and because the

County has responded to religious concerns with

official hostility, strict scrutiny applies. Yet the County’s

professed interests in denying religious accommodations are not compelling. Pursuing an educational

environment with minimum disruptions that serves

the County’s educational mission is standardless. An

interest in complying with nondiscrimination laws

fares no better. MCPS identifies no provision of State

or federal law requiring it to educate young children

about same-sex attraction, gender identity, or other

topics addressed in the Storybooks. Without a compelling

interest, the County’s policy fails strict scrutiny.

The petition offers an ideal vehicle to resolve the

question presented. A clean factual record invites full

review of the issues. This case presents an historic

opportunity to articulate parental rights under the

Free Exercise Clause. And petitioners’ sought-after

relief is modest and easily administered.

Unless the Court intervenes, Montgomery County

will trample petitioners’ constitutional rights and set

a deleterious precedent for other public schools. We

urge the Court to grant the petition.

ARGUMENT

I. THE QUESTION PRESENTED HOLDS NATIONAL

IMPORTANCE.

A. Petitioners’ Objections Are Rooted in

Shared Beliefs About Marriage, Sexuality,

and Gender.

Petitioners represent diverse religions. Yet despite

theological differences, petitioners’ religious beliefs

about marriage, sexuality, and gender, and about

parents’ religious duty to guide their children, closely

resemble each other. These mutually overlapping

beliefs are at the root of petitioners’ objections to

Montgomery County’s reading program.

1. Petitioners have a religious duty to be

their children’s primary guardians in

matters concerning marriage, sexuality,

and gender.

Tamer Mahmoud and Enas Barakat 2 are Muslims

who consider themselves under a “sacred obligation” to

teach their children how religion informs their understanding of marriage, sex, and gender. Pet.App.531a.

The Mahmouds say the Pride Storybooks “directly

undermine our efforts to raise our elementary-aged

children in accordance with our faith.” Id. at 532a.

Other petitioner parents hold similar convictions.

Jeff and Svitlana Roman are Christian: Jeff is

Catholic and Svitlana is Ukrainian Orthodox. They

affirm, with respect to their beliefs about marriage,

For ease of reference, we refer to the couple as “the Mahmouds.”

sexuality, and gender, that they “have a sacred

obligation to teach these principles to our son.” Id. at

538a. Chris and Melissa Persak are Catholic and echo

the same sense of “a God-given responsibility” to teach

their children how Catholic beliefs shape their understanding of sexuality and gender. Id. at 543a. Kids

First is a religiously diverse association of parents and

teachers who “advocate for the return of parental

notice and opt-out rights with respect to any instruction

related to family life and human sexuality in [MCPS].”

Id. at 163a. All “agree that parents have the primary

responsibility to decide how and when to introduce

instruction on family life and human sexuality to their

own children.” Id. at 168a.

2. Petitioners believe that sexual desire and

expression belong only within a marriage

between a man and a woman.

The Mahmouds believe that “sex and sexuality are

sacred gifts from God to be expressed through the

forming of a spiritual, marital bond between spouses—

one male and one female—for the shared promise of

security, tranquility, compassion, contentment, and joy.

Surah al-A’raf 7:189; Surah ar-Rum 30:21.” Id. at 530a.

Other petitioner parents share that understanding.

The Romans believe that “human sexuality is

precious with its power to create life” and “is properly

expressed only in marriage between a man and a

woman for creating life and strengthening the marital

union. [Catechism of the Catholic Church] § 2360–63;

Genesis 2:24; Mark 10:6–9.” Id. at 536a–537a. The

Persaks espouse similar Catholic beliefs. To them,

“following God’s commandments for marriage and

family is not only necessary for raising the next

generation of children, see Genesis 1:28, but also leads

to human flourishing. See John 8:51, 14:21, 15:10.” Id.

at 543a. And Kids First parents maintain that

“matters regarding family life and human sexuality”

should be “taught to children in age-appropriate ways.”

Id. at 169a.

3. Petitioners believe that gender is solely a

function of birth sex.

The Mahmouds also believe that “as taught by the

Qu’ran * * * mankind has been divinely created as

male and female, Surah al-Hujurat 49:13.” Id. at 165a.

And “as a general rule, Islam strictly prohibits medical

procedures that attempt to alter the sex of a healthy

person” unless it is “medical care” for “biological

ambiguities.” Id. at 531a.

Closely parallel religious doctrines unite the other

petitioner parents.

The Romans believe that “a person’s biological sex is

not arbitrary, but rather a gift bestowed by God that

entails differences in men’s and women’s bodies and

how they relate to each other and to the world. See

Genesis 5:2; Catechism of the Catholic Church,

§ 2393.” Id. at 536a. The Persaks believe that “all

humans are created as male or female, and that a

person’s biological sex is a gift bestowed by God that is

both unchanging and integral to that person’s being.

See Genesis 5:2.” Id. at 543a. And Kids First parents

“believe in prioritizing the needs of children and

“allowing elementary-age children to be kids first,

without prematurely exposing them to issues regarding

human sexuality, gender identity, and gender

transitioning.” Id. at 86a.

B. Petitioners’ Religious Beliefs Track the

Doctrines of Many Religious Faiths.

1. Diverse religions believe that parents

have a religious duty to guide their

children regarding marriage, sexuality,

and gender.

Petitioners’ statements of faith reflect not only their

own religious commitments, but religious beliefs

cherished by many others as well.

Islam recognizes a duty of parents to guide their

children. The Prophet Muhammad taught: “All of you

are shepherds and each of you is responsible for his

flock. A man is the shepherd of the people of his house

and he is responsible. A woman is the shepherd of the

house of her husband and she is responsible.” Al-Adab

Al-Mufrad, Book 10, Hadith 212. Muslims understand

this teaching to encompass an obligation to teach

children regarding gender and sexuality. See Siti

Suhaila Ihwani et al., Sex Education: An Overview

from Quranic Approach, 1 J. Quran Sunnah Educ. &

Special Needs, no. 2, at 1 (Dec. 2017).

Roman Catholics understand the family as “the

domestic church. In it parents should, by their word

and example, be the first preachers of the faith to their

children.” Pope Paul VI, Dogmatic Constitution on the

Church: Lumen Gentium, para. 11 (Nov. 21, 1964).

Pope John Paul II taught that “[s]ex education, which

is a basic right and duty of parents, must always be

carried out under their attentive guidance, whether at

home or in educational centers chosen and controlled

by them.” Pope John Paul II, Apostolic Exhortation:

Familiaries Consortio (Nov. 22, 1981).

Orthodox Christians affirm that parents are

charged with sacred duties toward their children, to

“bring them up in the discipline and instruction of the

Lord (Ephesians 6:4).” Holy Synod of Bishops of the

Orthodox Church in America, Synodal Affirmations on

Marriage, Family, Sexuality, and the Sanctity of Life,

para. 48 (July 1992).

Southern Baptists believe that “[p]arents are to

teach their children spiritual and moral values and to

lead them, through consistent lifestyle example and

loving discipline, to make choices based on biblical

truth.” Southern Baptist Convention, Baptist Faith &

Message 2000, art. XVIII (June 14, 2000).

Among its official teachings and policies, The

Church of Jesus Christ of Latter-day Saints declares

that “[p]arents have primary responsibility for the sex

education of their children. Parents should have

honest, clear, and ongoing conversations with their

children about healthy, righteous sexuality.” The

Church of Jesus Christ of Latter-day Saints, General

Handbook: Serving in The Church of Jesus Christ of

Latter-day Saints § 38.6.17 (Handbook).

Jewish scripture describes Jehovah’s words to Moses

after receiving the Ten Commandments: “Take heed to

thyself, and keep thy soul diligently, lest thou forget

the things which thine eyes saw, and lest they depart

from thy heart all the days of thy life; but make them

known unto thy children and thy children’s children.”

Devarim (Deuteronomy) 4:8–9. Jews today understand

these ancient commands as an important duty for

parents to guide children on matters of gender and

sexuality. See Derech Project, Sex and Relationships

Education in Jewish Schools 11 (2006).

2. Diverse religions share petitioners’ belief

that sexual expression belongs only between

a married man and woman.

A consensus among Islamic scholars holds that

sexuality belongs only within marriage. “By a decree

from God, sexual relations are permitted within the

bounds of marriage, and marriage can only occur between

a man and a woman. For Muslims, God explicitly

condemns sexual relations with the same sex (see,

e.g., Quran, al-Nisā’: 16, al-A‘rāf: 80–83, and al-Naml:

55–58). Moreover, premarital and extramarital sexual

acts are prohibited in Islam.” Navigating Differences:

Clarifying Sexual and Gender Ethics in Islam (May 23,

2023).

Roman Catholics believe that “Holy Scripture affirms

that man and woman were created for one another. It

is not good that the man should be alone.” Catechism

of the Catholic Church § 1605 (USCCB 2d ed. 2019)

(Catechism). Marriage is exclusively between one man

and one woman: “The intimate community of life and

love which constitutes the married state has been

established by the Creator and endowed by him with

its own proper laws.” Id. § 1603.

Southern Baptists believe that “[m]arriage is the

uniting of one man and one woman in covenant

commitment for a lifetime * * *. It is the framework for

intimate companionship, the channel of sexual expression according to biblical standards, and the means for

procreation of the human race.” Baptist Faith &

Message 2000, art. XVIII.

Orthodox Christians believe that “[t]he union between

a man and a woman in the Sacrament of Marriage

reflects the union between Christ and His Church

(Ephesians 5:21–33). Marriage is necessarily monoga-

mous and heterosexual. Within this union, sexual

relations between a husband and wife are to be

cherished and protected as a sacred expression of their

love that has been blessed by God.” Standing

Conference of the Canonical Orthodox Bishops in the

Americas, Statement on Moral Crisis in Our Nation,

para. 4 (May 16, 2012) (Moral Crisis).

The Church of Jesus Christ of Latter-day Saints

“solemnly proclaim[s] that marriage between a man

and a woman is ordained of God and that the family is

central to the Creator’s plan for the eternal destiny of

His children.” The First Presidency and Council of the

Twelve Apostles of The Church of Jesus Christ of

Latter-day Saints, The Family: A Proclamation to the

World, para. 1 (Sept. 23, 1995) (Family Proclamation).

Further, the Church “declare[s] that God has

commanded that the sacred powers of procreation are

to be employed only between man and woman,

lawfully wedded as husband and wife.” Id. para. 4.

Within the orthodox tradition, “Judaism recognizes

the central role of the two-parent, mother-father led

family as the vital institution in shaping the entire

human race. Within the Jewish people, the two-parent

marriage is a model not only for human relations but

for relations with the Divine.” Rabbi Tzvi Hersh

Weinreb, Orthodox Response to Same-Sex Marriage,

paras. 3–4 (June 5, 2006).

3. Diverse religions share petitioners’ belief

that gender is a function of birth sex.

Scholars of Islam agree that “[t]he notion that

humanity is divided into male and female and that sex

or gender is a defining characteristic of human experience is firmly embedded into the Muslim worldview.”

Kecia Ali & Oliver Lehman, Islam: The Key Concepts

42 (2008).

Roman Catholics believe that “‘[b]eing man’ or ‘being

woman’ is a reality which is good and willed by God:

man and woman possess an inalienable dignity which

comes to them immediately from God their Creator.”

Catechism § 369.

Southern Baptists believe that “[m]an is the special

creation of God, made in His own image. He created

them male and female as the crowning work of His

creation. The gift of gender is thus part of the goodness

of God’s creation.” Baptist Faith & Message 2000, art.

III.

Orthodox Christian tradition holds that “God made

them male and female * * * (Mark 10:6–8).” Moral

Crisis, para. 3. People with gender identity conflicts

“are to be cared for with the same mercy and love that

is bestowed by our Lord Jesus Christ upon all of

humanity.” Id. para. 5.

The Church of Jesus Christ of Latter-day Saints

teaches that “[a]ll human beings—male and female—

are created in the image of God * * *. Gender is an

essential characteristic of individual premortal, mortal,

and eternal identity and purpose.” Family Proclamation,

para. 2. “Gender” is authoritatively defined as

“biological sex at birth.” Handbook § 38.6.23.

Orthodox Judaism understands personal identity as

eternally male or female. The Torah records, “And G-d

Created man in His image, in the Image of G-d He

Created him, male and female He created them.”

Genesis 1:27; see also Jonathan Sacks, The Role of

Women in Judaism, in Man, Woman, and Priesthood

29 (Peter Moore ed., 1978) (“Man as such—and woman

as such—was made in the image of God * * *. It was

the recognition of this that was to be the basis of the

covenant between God and all humanity.”).

Petitioners’ objections to MCPS’s new reading

program thus reflect religious beliefs that are broadly

consistent with each other and mutually reinforced by

religious beliefs common among all Abrahamic faiths.

Those beliefs are not the preserve of an eccentric or

hard-to-accommodate minority. They are the honest

convictions of men and women trying to rear their

children within their faith. See Emp’t Div., Dep’t of

Human Res. of Or. v. Smith, 494 U.S. 872, 884 (1990)

(recognizing that the Free Exercise Clause guards

against “an attempt to regulate * * * the raising of

one’s children in those [religious] beliefs”).

II. MONTGOMERY COUNTY LACKS COMPELLING

INTERESTS TO SATISFY STRICT SCRUTINY.

A. MCPS’s Animus Toward Petitioners’

Religion Triggers Strict Scrutiny.

Although the question presented concerns the

burden on petitioners’ religious exercise, Pet. i, that

question is particularly urgent because of the strength

of their free exercise claim.

“[L]aws incidentally burdening religion are ordinarily

not subject to strict scrutiny under the Free Exercise

Clause so long as they are neutral and generally

applicable.” Fulton, 593 U.S. at 533 (citing Smith, 494

U.S. at 878–882). This Court’s precedents teach that

“[g]overnment fails to act neutrally when it proceeds

in a manner intolerant of religious beliefs or restricts

practices because of their religious nature.” Ibid. Strict

scrutiny of a challenged law or regulation is required

when the government indulges in “official expressions

of hostility to religion.” Masterpiece Cakeshop, Ltd. v.

Colo. Civil Rights Comm’n, 584 U.S. 617, 639 (2018).

That rule calls for strict scrutiny here.

Petitioners faced remarkable hostility toward their

religious beliefs. One MCPS board member publicly

disparaged objecting parents for engaging in a

“dehumanizing form of erasure.” Pet.App.187a. On

another occasion, the same board member accused

parents with religious objections of promoting “hate”

and compared them with “white supremacists” and

“xenophobes.” Id. at 107a. Vituperative rhetoric such

as this exhibited “a clear and impermissible hostility

toward the sincere religious beliefs” held by petitioners

and other objecting parents. Masterpiece Cakeshop,

584 U.S. at 634. Montgomery County thus defied “[t]he

principle that government may not enact laws that

suppress religious belief or practice.” Church of the

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

520, 523 (1993). Such open hostility toward religion

triggers the closest judicial scrutiny. In our experience,

parents often encounter such religious hostility from

school boards as they consider controversial policies.

Even without official expressions of religious bigotry,

the Storybooks and their presentation seek to impose

an ideological orthodoxy that contradicts the religious

beliefs of tens of millions of Americans. The entire

approach evinces animus toward religion. The text of

the Storybooks plus MCPS’s guidance intentionally

pressure children not merely to learn about LGBTrelated concepts and concerns, but to accept the official

viewpoint on marriage, gender, and sexuality. That

effort crosses the critical line separating education

from indoctrination. See W. Va. State Bd. of Educ. v.

Barnette, 319 U.S. 624, 642 (1943) (“If there is any fixed

star in our constitutional constellation, it is that no

official, high or petty, can prescribe what shall be

orthodox in politics, nationalism, religion, or other

matters of opinion or force citizens to confess by word

or act their faith therein.”). Why else teach four-yearolds to look for drag queens, Pride Puppy, Pet.App.270a;

ask first graders, “What pronouns fit you best?”,

Intersection Allies, id. at 350a (emphasis in original);

or invite young girls to explore a same-sex romance,

Love, Violet, id. at 446a? MCPS then instructs teachers

to deflect and rebut contrary religious beliefs when

students express them.

Montgomery County’s own elementary school principals expressed concern that the board’s treatment of

LGBT-related topics is “dismissive of religious beliefs”

and invites “shaming comment[s]” toward students

who disagree. Id. at 619a–620a. Yet MCPS guidance

instructs teachers to describe traditional religious

views about gender identity as “hurtful” and to

“disrupt” the thinking of children who express such

views. Id. at 629a, 634a.

Compounding all this is Montgomery County’s

determination to deny religious objectors any accommodation. Id. at 15a. The County’s no-opt-out policy

appears to apply only to the Storybook program and

contravenes the board’s then-applicable Religious

Diversity Guidelines, which instructed schools to provide

opt-outs “[w]hen possible” from “specific classroom

discussions or activities that” parents or students

“believe would impose a substantial burden on their

religious beliefs.” Id. at 81a. That reversal confirms

MCPS’s hostility toward traditional religion.

Because the burden on petitioners’ religious practice

is genuine and MCPS has triggered strict scrutiny by

acting out of hostility toward religion, MCPS must

identify compelling interests justifying its Storybook

program. Kennedy v. Bremerton Sch. Dist., 597 U.S.

507, 531 (2022). But the interests MCPS asserts are

anything but compelling.

B. Montgomery County’s Asserted Interests

Do Not Satisfy Strict Scrutiny.

1. Only genuinely compelling interests justify a

substantial burden on religious exercise.

“[O]nly those interests of the highest order and

those not otherwise served can overbalance legitimate

claims to the free exercise of religion.” Wisconsin v.

Yoder, 406 U.S. 205, 215 (1972). Such an interest may

not be framed “at a high level of generality.” Fulton,

593 U.S. at 541. The pertinent question “is not whether

[the government] has a compelling interest in enforcing [a

law or policy] generally, but whether it has such an

interest in denying an exception to [free exercise

claimants].” Id.

The First Amendment does not relax the requirements

of strict scrutiny for educational officials. Montgomery

County claims “leeway” to shape public school curriculum,

Defs.-Appellees’ Br. 51, Mahmoud v. McKnight, No.

23-1890 (4th Cir. Oct. 24, 2023) (Resp.), but it’s not

automatically “owed deference” for its curricular

policies, Students for Fair Admissions, Inc. v. President

& Fellows of Harvard Coll., 600 U.S. 181, 217 (2023).

Any discretion must “comport[] with the transcendent

imperatives of the First Amendment.” Bd. of Educ.,

Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457

U.S. 853, 864 (1982). Nor can MCPS glibly recite its

ultimate goal of LGBT equality to justify depriving

petitioners of their First Amendment rights. As the

Ninth Circuit held, “[a]nti-discrimination laws and

policies serve undeniably admirable goals, but when

those goals collide with the protections of the Constitution,

they must yield—no matter how well-intentioned.”

Fellowship of Christian Athletes v. San Jose Unified

Sch. Dist. Bd. of Educ., 82 F.4th 664, 695 (9th Cir. 2023)

(en banc) (citations omitted).

2. Montgomery County’s asserted interests

are vague and standardless.

MCPS asserts two threadbare interests for not

providing notice and opt-out rights to parents. One is

“ensuring an educational environment that is safe and

conducive to learning.” Resp. 17. By this, the County

means an environment that “minimizes disruptions

to the work and discipline of the school, fosters

achievement by all students, and protects the school’s

educational mission.” Ibid. MCPS’s other purported

interest is “meeting [the County’s] obligations under

antidiscrimination law.” Ibid. Neither interest satisfies

“the most demanding test known to constitutional

law.” Boerne v. City of Flores, 521 U.S. 507, 534 (1997).

MCPS’s asserted interests fall short for the same

reasons that this Court identified in Students for Fair

Admissions. There, Harvard pressed interests such as

“training future leaders” and “preparing graduates”

for life in an “increasingly pluralistic society.” 600 U.S.

at 214. But these supposed interests were not compelling

because they “cannot be subjected to meaningful judicial

review.” Ibid. The same is true of MCPS’s professed

interests. Like the interests that Harvard pressed, see

id. at 214–15, MCPS’s interest in avoiding classroom

“disruptions,” Resp. 17, is essentially “standardless”:

“[I]t is unclear how courts are supposed to measure”

that goal or “when [it has] been reached,” Students for

Fair Admissions, 600 U.S. at 214. 3 So too, an interest

The County’s approach to classroom disruption is also

underinclusive since the record nowhere suggests that students

are not free to leave class for other reasons, such as restroom

in “foster[ing] achievement” falters because MCPS

does not explain what kind of “achievement” its

exceptionless reading program serves. Resp. 17. Nor

does Montgomery County explain why excusing select

children from a few classroom discussions impedes

such achievement. And an interest in “protect[ing] the

school’s educational mission” fares no better since it

too resists objective evaluation. Ibid.

An interest in “meeting [the County’s] obligations

under antidiscrimination law,” ibid, is no more coherent.

MCPS cites no law commanding public schools to

teach young children about LGBT topics. See id. at 51–

52. Title IX does not. To the contrary, Congress

specifically barred federal “direction, supervision, or

control over the curriculum * * * or over the selection

of * * * textbooks, or other printed or published

materials by any * * * school system * * *.” 20 U.S.C.

§ 1232a. MCPS’s reference to Title IX therefore cannot

justify the County’s aim of re-norming young children

to reject their parents’ religion. See Pet.App.345a

(inviting first-grade students to “rewrite the norms”).

3. No compelling interest justifies denying

accommodations for religious parents.

MCPS offers no satisfactory explanation why its

new policies “can brook no departures.” Fulton, 593

U.S. at 542. The County operated its reading program

for most of the 2022–23 school year while giving

parents notice and opt-outs. CA4 App. 678. Yet MCPS

claims that such opt-outs “caused significant disruptions,

breaks and medical appointments. See Church of the Lukumi

Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 543 (1993)

(criticizing an asserted governmental interest as not compelling

when it “fail[s] to prohibit nonreligious conduct that endangers

[governmental] interests in a similar or greater degree”).

as teachers and principals grappled with widespread

student absenteeism, tracking opt-out requests, and

shuttling students in and out of classrooms.” Resp. 51.

MCPS adds that opt-outs presented “the risk of

exposing students to social stigma and isolation.” Ibid.

None of these reasons is sound.

Complaints about absenteeism, tracking requests,

and “shuttling students,” ibid., suggest that the reason

for denying notice and opt-outs is to avoid administrative burdens. But such burdens are wholly immaterial.

“[T]he prospect of additional administrative inconvenience has not been thought to justify invasion of

fundamental constitutional rights.” Carey v. Population

Servs., Int’l, 431 U.S. 678, 691 (1977).

Nor is it enough that MCPS worries accommodating

petitioners’ religion creates the “risk of exposing

students to social stigma and isolation.” Resp. 51. The

Free Exercise Clause has no principle like a “modified

heckler’s veto” that licenses the suppression of religious

exercise lest others feel stigmatized. Good News Club

v. Milford Cent. Sch., 533 U.S. 98, 119 (2001).

MCPS’s refusal to accommodate petitioners gets no

support from any differences between an opt-out from

the Storybooks and an opt-out from a classroom unit

on human sexuality. Resp. 43. Maryland law requires

student opt-outs for both. See Code Md. Regs.

§ 13A.04.18.01(D)(2)(e)(i) (“The local school system

shall establish policies, guidelines, and/or procedures

for student opt-out regarding instruction related to

family life and human sexuality objectives.”). 4 Nor do

petitioners ask to “allow students to leave class

An irrelevant provision excuses a school from providing a

student opt-out for classroom instruction on menstruation. See

Code Md. Regs. § 13A.04.18.01(D)(2)(e)(iii).

whenever instructional materials acknowledge the

existence of LGBTQ families.” Resp. 43. That baldly

misstates petitioners’ narrow request for their children

to be excused from discussions involving a few

contested Storybooks.

4. Neither Parker nor Mozert aids MCPS.

Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008), does not

bolster the County’s case. It held that public schools

did not violate parents’ free exercise rights by declining to

excuse their children from reading books aimed at

“promot[ing] toleration of same-sex marriage.” Id. at

106. Parker rests on the same mistaken ground as the

decision below. The First Amendment protects “the

free exercise of religion,” not merely freedom from

government coercion. U.S. Const. amend. I; see Thomas

v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 718

(1981). Unlike Parker, this case does involve “a formalized curriculum requiring students to read many

books affirming gay marriage,” along with gender

nonconformity. 514 F.3d at 106. Also unlike Parker,

petitioners’ claim does not rest on “the mere fact that

a child is exposed on occasion in public school to a

concept offensive to a parent’s religious belief.” Id. at

105. MCPS’s Storybooks, coupled with County guidelines, intentionally guide students to approve contested

viewpoints about sexuality and gender and blunt

objections based on a child’s and parent’s religious

beliefs. Parker is defective and distinguishable.

Mozert v. Hawkins County Board of Education, 827

F.2d 1058 (6th Cir. 1987), is also inapt. It rejected free

exercise claims challenging textbooks used for language

arts in public school. Mozert rested, like the decision

below, on the alleged absence of government coercion.

See id. at 1069. What’s more, the parents in Mozert

pressed an unworkably broad range of objections to

“seventeen categories” of instruction covering “evolution

and ‘secular humanism’” to “‘futuristic supernaturalism,’

pacifism, magic and false views of death.” Id. at 1062.

Here, petitioners’ objections narrowly involve a few

Storybooks covering LGBT-specific themes directed to

young children.

Montgomery County has not identified interests

that the law deems compelling. Without such interests,

the County’s refusal to accommodate objecting parents

fails strict scrutiny.

III. THIS CASE OFFERS AN IDEAL VEHICLE TO

RESOLVE THE QUESTION PRESENTED.

A. The Facts Are Cleanly Presented.

No material factual disputes obstruct review of the

question presented in the petition. The school board’s

policy is clear. See Pet.App.11a (teachers are “expected

to incorporate the Storybooks into the curriculum in

the same way that other books are used” (cleaned up)).

Equally clear are petitioners’ religious objections. See

id. at 18a (“Because [petitioners] believe that the

ideological views of family life and sexuality portrayed

in the Storybooks conflict with their views on these

and related topics, they object to their children being

exposed to them.” (cleaned up)).

The Fourth Circuit’s complaint about “the scant

record” is misplaced. Id. at 9a. “[N]o one disputes” the

Storybooks “will be used to instruct * * * K-5 children.”

Id. at 62a (Quattlebaum, J. dissenting). MCPS’s actions,

petitioners’ objections, and their claims are plainly

documented. See id. at 10a–14a (majority op.). Further

development is unnecessary to reach the question

presented concerning the burden on petitioners’

exercise of religion.

B. This Case Offers an Important Opportunity to Vindicate Parental Rights.

Litigation involving claims of parental rights—

especially the rights of religious parents—is mushrooming in the lower courts. See, e.g., Bates v.

Pakseresht, No. 23-4169 (9th Cir.) (oral argument held

July 9, 2024) (challenge to Oregon agency’s denial of

adoption application based on applicant’s religious

beliefs); Chino Valley Unified Sch. Dist. v. Newsom, No.

2:24-cv-1941 (E.D. Cal.) (challenge to California law

barring schools from notifying parents of child’s

gender transition at school without child’s consent).

Cases in this vein have already reached this Court—

including a case pending oral argument. L.W. v.

Skrmetti, 83 F.4th 460 (6th Cir. 2023), cert. granted,

144 S. Ct. 2679 (2024) (challenge to Tennessee law

barring gender-transition drugs and surgeries for minors).

This case presses critical questions in the familiar

setting of education, where parental rights ought to

be at their zenith. See Yoder, 406 U.S. at 213–14

(affirming 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”) (citations omitted); Meyer v. Nebraska,

262 U.S. 390, 400 (1923) (holding that a Nebraska

statute prohibiting the teaching of modern languages

in public school violated the due process right of

parents to determine their children’s education);

Pierce v. Soc’y of Sisters of the Holy Names of Jesus &

Mary, 268 U.S. 510, 532 (1925) (holding that an Oregon

statute requiring attendance at public school violated

due process because it interfered with “the right of

parents to choose schools” for their children, including

private religious schools). These principles amply

cover the narrow right asserted here—the right of

parents to exercise their religion by guiding their

children in matters concerning marriage, sexuality,

and gender.

C. Petitioners’ Requested Remedies Are

Modest and Easily Administered.

Petitioners do not seek to terminate the reading

program. Nor do they demand a substitute program.

They ask only for the same accommodations long

granted to parents who wish to excuse their children

from sex education in public school—notice and the

right to have their children excused from the objectionable curriculum. See Pet.App.74a (Quattlebaum, J.

dissenting) (emphasizing “the limited nature of the

relief the parents seek”). 5

Granting petitioners’ relief is consistent with Maryland

law. State regulations require schools to provide optouts for any “instruction related to family life and

human sexuality objectives” other than “menstruation.”

Code Md. Reg. § 13A.04.18.01(D)(2)(e)(i). It’s hard to

see how MCPS can refuse that remedy to petitioners

when the reading program operated for a year with the

accommodations MCPS stubbornly denies.

* * *

Petitioners seek to exercise their religion by guiding

their children in matters concerning marriage, sexuality,

and gender. MCPS has instituted a reading program

that teaches young children about LGBT characters

It has long been understood that “[s]ex education” can be used

as a “weapon in an ideological war against the family,” with the

aim of “divest[ing] the parents of their moral authority.” Philip

Rieff, The Triumph of the Therapeutic 160 (1966). That pernicious

result can be avoided by giving objecting parents the kind of

reasonable accommodations that petitioners seek.

and concerns from a viewpoint that is antithetical to

petitioners’ sincere religious beliefs. Petitioners do not

seek to upend the County’s program. They ask only for

notice and an opportunity for their children to be

excused. Under the First Amendment, their claim is

sound and the issue they raise holds national importance.

The petition should be granted.

CONCLUSION

The Court should grant this exceptionally important

petition.

Respectfully submitted,

R. SHAWN GUNNARSON

Counsel of Record

CHRISTOPHER A. BATES

JAROM M. HARRISON

KIRTON | MCCONKIE

36 South State Street

Suite 1900

Salt Lake City, Utah 84111

(801) 328-3600

sgunnarson@kmclaw.com

Counsel for Amici Curiae

October 15, 2024

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.