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

No. 24-297

In the Supreme Court of the United States

__________

TAMER MAHMOUD AND ENAS BARAKAT; JEFF AND SVITLANA

ROMAN; CHRIS AND MELISSA PERSAK, IN THEIR INDIVIDUAL

CAPACITIES AND EX REL. THEIR MINOR CHILDREN; AND KIDS FIRST,

AN UNINCORPORATED ASSOCIATION,

Petitioners,

v.

THOMAS W. TAYLOR, IN HIS OFFICIAL CAPACITY AS

SUPERINTENDENT OF THE MONTGOMERY COUNTY BOARD OF

EDUCATION; THE MONTGOMERY COUNTY BOARD OF EDUCATION;

AND SHEBRA EVANS, LYNNE HARRIS, GRACE RIVERA-OVEN, KARLA

SILVESTRE, REBECCA SMONDROWSKI, BRENDA WOLFF, AND JULIE

YANG, IN THEIR OFFICIAL CAPACITIES AS MEMBERS OF THE BOARD

OF EDUCATION,

Respondents.

__________

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

__________

REPLY BRIEF FOR PETITIONERS

__________

ERIC S. BAXTER

Counsel of Record

WILLIAM J. HAUN

MICHAEL J. O’BRIEN

COLTEN L. STANBERRY

THE BECKET FUND FOR

RELIGIOUS LIBERTY

1919 Pennsylvania Ave. NW,

Suite 400

Washington, D.C. 20006

(202) 955-0095

ebaxter@becketlaw.org

Counsel for Petitioners

TABLE OF CONTENTS

Page

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

INTRODUCTION ........................................................ 1

ARGUMENT ................................................................ 2

I.

There is a 5-1 circuit split over when

forced public school instruction burdens

religious exercise. ............................................ 2

II. The decision below conflicts with this

Court’s precedent. ............................................ 5

A. The decision below gutted Yoder. .............. 5

B. The decision below violates free

exercise cases from Sherbert to

Kennedy.. .................................................... 8

III. The question presented has profound

national ramifications. .................................. 10

CONCLUSION .......................................................... 12

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Brown v. Hot, Sexy and Safer Prods., Inc.,

68 F.3d 525 (1st Cir. 1995) .................................. 12

California Parents for the Equalization

of Educ. Materials v. Torlakson,

973 F.3d 1010 (9th Cir. 2020) ................................ 4

C.N. v. Ridgewood Bd. of Educ.,

430 F.3d 159 (3d Cir. 2005).................................. 10

Doran v. Salem Inn, Inc.,

422 U.S. 922 (1975) .............................................. 12

Espinoza v. Montana Dep’t

of Revenue,

591 U.S. 464 (2020) ............................................. 8-9

Florey v. Sioux Falls

Sch. Dist. 49-5,

619 F.2d 1311 (8th Cir. 1980) ................................ 2

Fulton v. City of Philadelphia,

593 U.S. 522 (2021) ............................................ 6, 9

Mahanoy Area Sch. Dist. v. B.L.,

594 U.S. 180 (2021) ................................................ 8

Masterpiece Cakeshop v. Colorado,

584 U.S. 617 (2018) .............................................. 11

Morse v. Frederick,

551 U.S. 393 (2007) ................................................ 7

iii

Nelson v. Nazareth Indep. Sch. Dist.,

No. 2:24-cv-177, 2024 WL 4116495

(N.D. Tex. Sept. 6, 2024) ........................................ 2

New York State Rifle & Pistol Ass’n,

Inc. v. Bruen,

597 U.S. 1 (2022) .................................................... 4

Parents Protecting Our Children v. Eau

Claire Area Sch. Dist.,

No. 23-1280, 2024 WL 5036271

(Dec. 9, 2024) ................................................. 10, 11

Parker v. Hurley,

514 F.3d 87 (1st Cir. 2008) .................................... 6

Ricard v. USD 475 Geary Cnty.,

No. 5:22-cv-4015, 2022 WL 1471372

(D. Kan. May 9, 2022) .......................................... 12

Roman Catholic Diocese of

Brooklyn v. Cuomo,

592 U.S. 14 (2020) ................................................ 11

Sherbert v. Verner,

374 U.S. 398 (1963) ................................................ 9

Students for Fair Admissions, Inc. v.

President & Fellows of Harvard Coll.,

600 U.S. 181 (2023) ................................................ 7

Tatel v. Mt. Lebanon Sch. Dist.,

No. 22-cv-837, 2024 WL 4362459

(W.D. Pa. Sept. 30, 2024) ....................................... 2

iv

Thomas v. Review Bd.,

450 U.S. 707 (1981) ................................................ 9

Turner v. Safley,

482 U.S. 78 (1987) .................................................. 8

Wisconsin v. Yoder,

406 U.S. 205 (1972) .................................... 3, 5, 6, 8

Other Authorities

Nicole Asbury, Montgomery schools stopped

using two LGBTQ-inclusive books amid

legal battle, Washington Post,

Oct. 23, 2024 ........................................................... 7

INTRODUCTION

The Board’s opposition confirms the split. Quoting

the Eighth Circuit, the Board says that “[e]veryone

agrees that a public school generally cannot force a

student to actively ‘participate in an activity’ that violates the student’s religion.” BIO.14 (emphasis added).

The adverb is the tell. Five circuits recognize a burden

only if a student is compelled to participate “actively”—to some heightened degree. In the Fourth Circuit’s decision below, that means no religious burden

until students are forced “to change their religious beliefs or conduct.” But in the Eighth Circuit, children

cannot be forced to participate against their religious

convictions at all. That divide alone warrants certiorari. Parents should not have to wait until too late to

protect their children against forced participation in

instruction that violates their faith.

The Board’s apologia of the decision below highlights the confusion that reigns on the wrong side of

the split, where Yoder is demoted to an Amish one-off.

And the Board has no answer for the Fourth Circuit’s

total departure from sixty years of Supreme Court

free-exercise precedent, from Sherbert to Kennedy.

The Board cannot dispute that this is a case of tremendous national importance. Few things matter

more than the right of parents to control the religious

upbringing of their children. If the Fourth Circuit’s rewrite of this Court’s precedent is accepted, it is parents

who cannot afford private schooling that lose out. They

will never be able to protect their children from instruction that violates their faith—even grossly ideological instruction on gender and sexuality aimed at

vulnerable elementary-school kids. The Court should

grant certiorari to protect them.

2

ARGUMENT

I. There is a 5-1 circuit split over when forced

public school instruction burdens religious

exercise.

To oppose review, the Board touts the lopsided nature of the split, discounting the Eighth Circuit’s ruling in Florey. BIO.15. But Florey cited Yoder and ruled

definitively: “forcing any person to participate in an

activity that offends his religious * * * beliefs will

generally contravene the Free Exercise Clause.” Florey, 619 F.2d at 1318-1319. A district court within the

Eighth Circuit would be hard pressed to shrug this off

as “dicta.” BIO.15. Nor have other courts. And in just

the last year, at least two district courts have similarly

recognized that “Free Exercise rights are implicated”

when parents are denied notice and opt-outs. Nelson

v. Nazareth Indep. Sch. Dist., No. 2:24-cv-177, 2024

WL 4116495, at *4 (N.D. Tex. Sept. 6, 2024); Tatel v.

Mt. Lebanon Sch. Dist., No. 22-cv-837, 2024 WL

4362459, at *18, 36 (W.D. Pa. Sept. 30, 2024). Another

case is pending. S.E. v. Grey, No. 24-cv-1611 (S.D.

Cal.).

The Board pretends this isn’t happening. It mischaracterizes Nelson and Tatel, 1 ignores Grey, and

pushes Florey outside the split—claiming Florey involves “mere exposure,” not compulsion to participate

“actively.” BIO.3, 14. But that distinction is the

Board’s gloss on Yoder, not Florey’s. Florey involved

students sitting through activities like a Christmas assembly with a “religious theme.” 619 F.2d at 1314.

See BIO.18 n.4 (Nelson about state law when it invokes

Yoder); BIO.17 (Tatel about “non-curricular agenda” when it says

“de facto policy”).

1

3

Similarly, the Amish in Yoder objected to public high

school only because the “values” taught there were “in

marked variance with Amish values,” “expos[ed]” the

children to “a ‘worldly influence,’” and “pressure[d]”

them to “conform” to their peers. Yoder, 406 U.S. at

211. They were not denied relief because their children

had not yet been compelled “to change their religious

beliefs.” App.34a. Compelled participation in “readalouds” that celebrate Pride parades and gender transitions is at least as coercive as participating in the

assemblies in Florey or the classes in Yoder—especially considering the children’s age and vulnerability.

BIO.2.

The Board’s assurances that teachers don’t “take[ ]

a side” and that no students are “asked to change how

they feel” are pablum. BIO.6. The storybooks themselves are ideological, stressing that “[n]ot everything”

about gender “needs to make sense,” that children

should be free to use their preferred bathroom, and

that “pronouns are like the weather” and may “change

depending on how [children] feel”—to cite just a few

examples. App.465a, App.578a-579a, App.548a-564;

App.552a. And even the Board’s alleged statements of

neutrality are one-sided. There’s nothing “neutral” in

saying kids should let go of “doing gender correctly,”

App.637a, or that there is “no single way to be a boy,

girl, or any other gender,” App.638a. See also App.54a55a, 62a. Under Florey, parental objections to such

4

content easily trigger strict scrutiny, while five other

circuits would let it pass.2

The Board would add Torlakson to its side of the

split. BIO.12. But there, the plaintiffs “failed to allege

any [free exercise] burden,” contending that this Court

had “eliminated the requirement.” 973 F.3d at 1019.

The district court disagreed, and the plaintiffs did “not

challenge” that conclusion on appeal. Ibid. The Ninth

Circuit agreed the plaintiffs had “not alleged interference with [the] exercise of their religion.” Ibid. And in

its brief recitation of free exercise principles, the court

made no mention of Yoder and did not grapple with

the question presented here. See BIO.12. Regardless,

with or without Torlakson, the split cannot be ignored.

And even without Florey, so many circuits all ruling

the wrong way would still warrant review. See, e.g.,

New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597

U.S. 1, 17-18 (2022) (rejecting courts of appeals’ “consensus” test for assessing Second Amendment burdens).

Unable to avoid the split, the Board finally suggests that resolving it can wait—at least for discovery

and summary judgment below. BIO.3. But the Board

has already moved to dismiss, arguing that the Fourth

Circuit’s heightened standard means Petitioners lack

not only sufficient facts, but also standing. Defs.’ Mot.

to Dismiss Br.4-11, D. Ct. Doc. 78-1 (July 18, 2024). If

that motion is granted, it is because Petitioners lack

the Fourth Circuit’s conception of a cognizable burden,

If the Board is not trying to change students’ views, why deny

parents notice? Why accuse students of “parroting dogma” or

compare parents to “white supremacists” and “xenophobes”?

App.106a, 107a.

2

5

bringing Petitioners right back with the same petition.

If it is denied, discovery won’t answer the question presented. “Everyone” already agrees that strict scrutiny

applies once students have been “compel[led] * * * to

change” their beliefs. BIO.14; App.34a. The question is

whether students can be “compel[led] * * * to participate” in the first place.

II. The decision below conflicts with this Court’s

precedent.

A. The decision below gutted Yoder.

The Fourth Circuit sidelined Yoder as “markedly

circumscribed,” saying it applied only if absence of the

opt-out “coerces” students to “to change” their “beliefs

or conduct” or “to believe or act contrary to their religious views.” App.37a, 34a, 31a. The Board contends

this was applying Yoder “faithfully.” BIO.19. That is

twice wrong.

First, Yoder required no heighted evidence of coercion. There, heightened scrutiny was triggered by the

mere possibility of “pressure to conform.” 406 U.S. at

217; Pet.24; Laycock Br.14. If a burden exists where

students are instructed by “teachers who are not of the

Amish faith—and may even be hostile to it,” Yoder,

406 U.S. at 211-212, then a burden exists when public

schools intentionally seek to “[d]isrupt” students’

thinking about gender, Pet.13.

Second, Petitioners’ objection is to children sitting

through instruction on gender and sexuality that confounds their faith. Pet.8-11. That is why they sought

and were granted opt-outs for the 2022-2023 school

year. Denying even notice of when books will be read

does force them to “change” that “conduct” and “act

contrary” to their religious conviction. As in Yoder,

6

this puts the “very architecture” of Petitioners’ sacred

obligations at stake. Laycock Br.14.

Nor, contrary to the Fourth Circuit, does Yoder demand the “exceptional burden” of showing that Petitioners’ “religious way of life” is “incompatible with

any schooling system.” App.38a; BIO.20 (“at all”). Because the Amish sought to remove their children from

school entirely, they made a showing “few other[s]”

could make: an “alternative” form of “informal vocational education.” Yoder, 406 U.S. at 235-236. But that

went “[b]eyond” burden to the “particularity” of strict

scrutiny. Ibid.; Laycock Br.13-17.

Here, Petitioners seek much more modest relief.

They seek only to opt their children out of instruction

on gender and sexuality—a traditional part of parental authority the Board itself honored until fall 2023.

Pet.5-7, 14. By demanding that Petitioners’ narrow request meet the same standards as the Amish’s broader

one, the decision below upended what “courts must”

do: “scrutinize the asserted harm of granting specific

exemptions to particular religious claimants.” Fulton,

593 U.S. at 541 (cleaned up) (emphases added); Pet.25.

This Yoder confusion is widespread. The Fourth

Circuit, and the Board, for example, concede—as they

must—that the Free Exercise Clause is triggered by

indirect coercion. App.24a; BIO.18. If this case does

not involve indirect coercion, what would? No circuit

has a clear answer. The closest any has come effectively ignored indirect coercion: Parker—the lead circuit on the wrong side of the split—looked for “direct

coercion.” 514 F.3d at 105. Similar confusion reigns in

the other circuits on that side. Pet.20-22, 23 n.11. The

result is a morass, with standards that range from

7

“[in]sufficiently coherent” to “inescapably imponderable.” Students for Fair Admissions, Inc. v. President

and Fellows of Harvard College, 600 U.S. 181, 214, 215

(2023).

This morass lets lower courts twist Yoder into an

enemy of standard free-exercise law. On this distorted

view, things that free exercise law normally prohibits—like a centrality inquiry—are required. Pet.25;

Laycock Br.11-13; App.38a (requiring Amish’s “unusual degree of separation”). Things that free exercise

analysis would normally credit—like the enduring national tradition of parental religious authority, especially on human sexuality instruction—are deemed

“irrelevant,” BIO.22; but see Pet.24-25; DeGroff Br.610; States Br.12-18; AFL Br.5-10.3

Instead of asking whether religious parents are

burdened—as in any other free exercise case—courts

instruct public school parents to “choose alternatives,”

App.46a, and incur “increased costs,” App.47a, even

though most “realistically, have no choice,” Morse, 551

U.S. at 424 (Alito, J., concurring). For this backwards

view, public school parents are like prisoners who

must find “alternatives” to their religious exercise. See

BIO.27-28. But even in prisoner cases courts care

about whether alternatives “fully accommodate” free

Evasively, the Board pretends the storybooks are “not” sexuality education. BIO.22; BIO.5-6 (“everyday tales”). But before filing its BIO—and without telling the Court—the Board pulled

Pride Puppy and My Rainbow over “concerns about the content”—something parents and principals picked up on two years

ago. Nicole Asbury, Montgomery schools stopped using two

LGBTQ-inclusive books amid legal battle, Washington Post, Oct.

23, 2024, https://perma.cc/EPR7-AXBB; App.614a-615a.

3

8

exercise, or whether the claimant’s activity was previously “allowed.” Turner v. Safley, 482 U.S. 78, 91, 98

(1987); Pet.25 (Ramirez). Yet with Yoder demoted,

schools can do what prisons cannot: flip-flop on free

exercise rights without judicial review. Ibid.

If parents’ “primary role * * * in the upbringing of

their children is now established beyond debate,”

Yoder, 406 U.S. at 232, then “[p]arents do not implicitly relinquish all that authority when they send their

children to a public school,” Mahanoy Area Sch. Dist.

v. B.L. ex rel. Levy, 594 U.S. 180, 202 (2021) (Alito, J.,

concurring) (citing Yoder and Pierce). Here, the Board

is not acting on a subject where “the children’s actual

parents cannot protect, guide, and discipline them.”

Id. at 189 (majority opinion) (“circumstances” of “in

loco parentis”). Rather, the Board is deliberately denying parents the knowledge needed to protect, guide,

and discipline their children on a subject traditionally

at the core of parental authority. That is an obvious

burden, and it is only deniable by gutting Yoder.

B. The decision below violates free exercise

cases from Sherbert to Kennedy.

The Board also misrepresents the past sixty years

of free exercise precedent. Pet.26-30. On the Board’s

telling, every free exercise case “require[d]” a religious

claimant to do something religiously violative. BIO.2325. Not so. What mattered was the “pressure” to modify religious beliefs. Pet.26-27, 29-30.

Indeed, the religious claimant in each case had a

theoretical alternative—but that never mattered to

the Court’s free-exercise analysis. It did not matter in

Kennedy that the coach “could have prayed at home.”

App.64a. It did not matter in Espinoza that religious

9

families could send their children to religious schools

without “benefits.” 591 U.S. at 486. It did not matter

in Thomas that the unemployment benefits claimant

quit his job. 450 U.S. at 718. Nor did it matter in Sherbert that the unemployment benefits claimant was

“willing[ ] to accept employment” elsewhere. 374 U.S.

at 399 n.2. What mattered was that the respective benefit conditions “inevitably deter[red] or discourage[d]

the exercise of First Amendment rights.” Pet.29;

App.63a-66a. Such deterrence or discouragement is

the “indirect coercion,” or “pressure,” that constitutes

a free exercise burden. Pet.26-27, 29.

This point is crystal clear in Fulton—which the

Board ducks entirely. There, Philadelphia insisted

that CSS must certify same-sex couples as foster parents, because all it was being asked to do was “satisfy

the statutory criteria.” 593 U.S. at 532. But, by virtue

of CSS’s religious teachings, certification was “tantamount to endorsement,” and that sufficed. Ibid. That

was true even though Philadelphia argued CSS could

still have served orphans “in its private capacity.”

Philadelphia Merits Br.27, Fulton v. City of Philadelphia, 593 U.S. 522 (2021). So too here. App.61a-62a.

The Board’s failure to consider Fulton explains why

it misunderstands “internal affairs.” The Board claims

that requiring notice and opt-out rights is “[t]elling

public school teachers what to teach and not to teach.”

BIO.26. This was Philadelphia’s argument: letting

CSS opt out from one activity was “dictat[ing] how contractors carry out foster-care services.” Philadelphia

Merits Br.27. This Court rightly rejected that argument. Pet.28. Here, Petitioners seek only restoration

of the notice and opt-outs the Board previously provided. Pet.14; Pet.28.

10

The Board also waves off Kennedy and the Fourth

Circuit’s refusal to consider “neutral[ity]” and “general

applicab[ility].” BIO.27. But these are not “fact-bound

disagreement[s],” ibid.; they are Free Exercise “minimum[s],” Pet.29-30 (quoting Lukumi); Laycock Br.2125.

III. The question presented

national ramifications.

has

profound

The Board’s policy of parental exclusion is “a question of great and growing national importance.” Parents Protecting Our Children v. Eau Claire Area Sch.

Dist., No. 23-1280, 2024 WL 5036271, at *1 (Dec. 9,

2024) (Alito, J., dissenting from denial of certiorari);

Pet.30-35.

1. The question presented goes to “the heart of” parents’ religious “decision-making authority on matters

of the greatest importance.” Ridgewood, 430 F.3d at

184. For many religious parents, forced participation

in elementary-school instruction on gender and sexuality is contrary to their religious convictions. Pet.811; Protect the First Br.6-12.

The question presented also has profound national

implications. In Montgomery County alone, the

Board’s policy cuts out the parents of roughly 160,000

students in the most religiously diverse county in the

United States. Pet.8; App.602a. And the wrong side of

the split affects millions of religious families across the

country. See Protect the First Br.22-24. Forty-seven

states and the District of Columbia provide for parental opt-out or opt-in protections related to human sexuality and other sensitive instruction. Pet.6-7. If those

safeguards can be sidestepped by moving the content

into a different class period, other public schools across

11

the nation will follow suit. Indeed, some already

have—including in Pennsylvania (Tatel) and California (Grey).

2. Without denying the national consensus on notice and opt-outs for instruction on human sexuality,

Pet.6-7, BIO.22, the Board dismisses it as “irrelevant.”

BIO.22; see also BIO.27 (“‘upends’ nothing”). The storybooks, it says, are “language-arts instruction, not

sex education.” BIO.28. But both classes feature lessons about gender identity and sexual orientation. Pet.

C.A. Br.38-39 [Doc.56]. And, as the Board concedes,

parents do get notice and opt-outs for the latter.

BIO.22. “Only by adjusting the dials just

right * * * can you engineer” this conclusion. Masterpiece, 584 U.S. at 652 (Gorsuch, J., concurring); see

also BIO.5 (“gender identity” as “sentence structure”).

Self-serving “categorizations” won’t do. Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U.S. 14, 17

(2020).

In trivializing the stakes, the Board ignores its refusal even to provide notice when the storybooks will

be taught. App.185a, 657a. But there’s an independent

burden when schools “keep parents in the dark.” Parents Protecting, 2024 WL 5036271, at *1 (Alito, J., dissenting). On such fundamental matters, there is no legitimate basis to conceal information from parents.

Lack of notice also renders illusory the Board’s “alternative.” BIO.30. Parents cannot make a reasonable

choice about whether to send their children to private

school or to home school them if they are kept in the

dark about what their children are being taught in

public school.

3. Finally, failing to grant review leaves a publicschool-shaped hole in standard free exercise analysis.

12

Lost in that gap is the religious authority of parents,

the judicial role, and the innocence of children.

Absent review, school boards will be free to withhold notice and opt-outs and then introduce everything short of proscribed obscenity to schoolchildren of

any age, cf. Brown, 68 F.3d at 529, subject only to post

hoc evidentiary review for “coercion to change or act

contrary to one’s religious beliefs,” BIO.20. This leaves

parents with less free-exercise protection than anyone

in any other public program—even schoolteachers

harboring their own religious objections. See Ricard v.

USD 475 Geary Cnty., No. 5:22-cv-4015, 2022 WL

1471372, at *4-5 (D. Kan. May 9, 2022).

Absent review, the federal courts are also forever

closed to parents seeking a preliminary injunction.

Pet.25-26; BIO.20-21. If injunctive relief requires parents to first show their children are “likely” to or “necessarily” will “change” religious beliefs, BIO.21—and

schools deny parents notice of when that may happen—then parents won’t know to seek injunctive relief

until too late. But injunctive relief must be available

before it “might well be useless.” Doran v. Salem Inn,

Inc., 422 U.S. 922, 932 (1975). Parents should not lose

their authority—and children their innocence—simply

because their religious objections find no favor with

the bien-pensant.

CONCLUSION

The Court should grant review.

13

Respectfully submitted.

ERIC S. BAXTER

Counsel of Record

WILLIAM J. HAUN

MICHAEL J. O’BRIEN

COLTEN L. STANBERRY

THE BECKET FUND FOR

RELIGIOUS LIBERTY

1919 Pennsylvania Ave. NW,

Suite 400

Washington, D.C. 20006

(202) 955-0095

ebaxter@becketlaw.org

Counsel for Petitioners

DECEMBER 2024