Petitioners Brief — Tamer Mahmoud, et al., Petitioners v. Thomas W. Taylor, et al.
Supreme Court briefMar 3, 2025
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No. 24-297
In the Supreme Court of the United States
__________
TAMER MAHMOUD, ET AL.,
Petitioners,
v.
THOMAS W. TAYLOR, ET AL.,
__________
Respondents.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FOURTH CIRCUIT
__________
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@becketfund.org
Counsel for Petitioners
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?
ii
PARTIES TO THE PROCEEDINGS AND
CORPORATE DISCLOSURE STATEMENT
Petitioners Tamer Mahmoud and Enas Barakat,
Jeff and Svitlana Roman, and Chris and Melissa Persak are parents of elementary-age children in Montgomery County, Maryland. They are plaintiffs below.
Petitioners Chris and Melissa Persak are also acting ex rel. their minor children, who are plaintiffs below.
Petitioner Kids First is an unincorporated association and is a plaintiff below. It does not have a parent
corporation or issue stock.
Respondent Thomas W. Taylor is the Montgomery
County Superintendent of public schools. He is sued in
his official capacity. His predecessor, Monifa B.
McKnight, was a defendant below in her official capacity.
The Montgomery County Board of Education is a
defendant below.
Laura Stewart, Rita Montoya, Grace Rivera-Oven,
Karla Silvestre, Natalie Zimmerman, Brenda Wolff,
and Julie Yang are members of the Board of Education
and are defendants in their official capacities.
Per Rule 35.3 of the Rules of this Court, Laura Stewart, Rita
Montoya, and Natalie Zimmerman have been automatically substituted for Shebra Evans, Lynne Harris, and Rebecca
Smondrowski, respectively.
iii
TABLE OF CONTENTS
Page
QUESTION PRESENTED ........................................... i
PARTIES TO THE PROCEEDINGS AND
CORPORATE DISCLOSURE STATEMENT ............. ii
TABLE OF AUTHORITIES ........................................ v
INTRODUCTION ........................................................ 1
JURISDICTION .......................................................... 4
CONSTITUTIONAL PROVISIONS AND
REGULATIONS INVOLVED ..................................... 4
STATEMENT OF THE CASE .................................... 6
A. There is a national consensus respecting
parental control over instruction on
gender and sexuality......................................... 6
B. The Board introduces “LGBTQinclusive” instruction. ....................................... 9
C. The Board breaks with the consensus
and bans notice and opt-outs. ......................... 13
D. Petitioners cannot maintain their
religious exercise............................................. 16
E. Petitioners sue. ............................................... 19
SUMMARY OF ARGUMENT ................................... 21
iv
ARGUMENT .............................................................. 24
I. The Board has burdened Petitioners’ free
exercise. ................................................................ 24
A. The Board’s actions substantially
interfere with Petitioners’ rights under
Yoder to direct the religious upbringing
of their children. ............................................. 24
B. The Board’s actions are not generally
applicable or neutral under Lukumi. ............. 35
II. The Board’s actions fail strict scrutiny. ............... 47
CONCLUSION .......................................................... 53
v
TABLE OF AUTHORITIES
Page(s)
Cases
303 Creative LLC v. Elenis,
600 U.S. 570 (2023) .............................................. 51
Bostock v. Clayton County,
590 U.S. 644 (2020) .............................................. 50
Bowen v. Kendrick,
487 U.S. 589 (1988) .............................................. 31
Brown v. Board of Educ.,
347 U.S. 483 (1954) .............................................. 45
Brown v. Entertainment Merchs. Ass’n,
564 U.S. 786 (2011) ........................................ 49, 50
Brown v. Hot, Sexy and Safer Prods., Inc.,
68 F.3d 525 (1st Cir. 1995) .................................. 35
Carson v. Makin,
596 U.S. 767 (2022) .............................................. 46
Church of Lukumi Babalu Aye,
Inc. v. City of Hialeah,
508 U.S. 520 (1993) ....................... 22, 40, 41-42, 50
Department of Com. v. New York,
588 U.S. 752 (2019) .............................................. 31
Employment Div. v. Smith,
494 U.S. 872 (1990) .............................................. 38
vi
Espinoza v. Montana Dep’t of Revenue,
591 U.S. 464 (2020) .................................. 24, 27, 33
45, 46
Fellowship of Christian Athletes v. San Jose
Unified Sch. Dist. Bd. of Educ.,
82 F.4th 664 (9th Cir. 2023) ................................ 51
Fulton v. City of Philadelphia,
593 U.S. 522 (2021) ............................ 36, 38, 39, 40
43-44, 47, 48, 51
Gonzales v. O Centro Espírita
Beneficente União do Vegetal,
546 U.S. 418 (2006) .............................................. 52
Holt v. Hobbs,
574 U.S. 352 (2015) .................................. 48, 49, 52
Kennedy v. Bremerton Sch. Dist.,
597 U.S. 507 (2022) ............................ 24, 36, 43, 44
Mahanoy Area Sch. Dist. v. B.L.,
594 U.S. 180 (2021) .............................................. 49
Masterpiece Cakeshop, Ltd. v.
Colorado C.R. Comm’n,
584 U.S. 617 (2018) .................................. 37, 40, 41
42, 43
McDaniel v. Paty,
435 U.S. 618 (1978) .............................................. 48
Meyer v. Nebraska,
262 U.S. 390 (1923) ........................................ 23, 24
vii
Meyer v. State,
187 N.W. 100 (Neb. 1922) .................................... 24
Minersville Sch. Dist. v. Gobitis,
310 U.S. 586 (1940) ......................................... 45-46
Obergefell v. Hodges,
576 U.S. 644 (2015) ........................................ 32, 51
Our Lady of Guadalupe Sch. v.
Morrisey-Berru,
591 U.S. 732 (2020) .............................................. 27
Pierce v. Society of Sisters of the Holy
Names of Jesus & Mary,
268 U.S. 510 (1925) .............................................. 25
Ramirez v. Collier,
595 U.S. 411 (2022) .................................. 47, 51, 52
Roman Catholic Diocese of Brooklyn v.
Cuomo,
592 U.S. 14 (2020) ................................................ 36
Roper v. Simmons,
543 U.S. 551 (2005) .............................................. 31
Sherbert v. Verner,
374 U.S. 398 (1963) ........................................ 44, 52
Students for Fair Admissions, Inc. v.
President & Fellows of Harvard Coll.,
600 U.S. 181 (2023) ......................................... 49-50
viii
Tandon v. Newsom,
593 U.S. 61 (2021) ............................... 36, 37-38, 42
Thomas v. Review Bd. of Ind.
Emp. Sec. Div.,
450 U.S. 707 (1981) ........................................ 45, 51
Trinity Lutheran Church of
Columbia, Inc. v. Comer,
582 U.S. 449 (2017) ......................................... 44-45
United States v. Stanchich,
550 F.2d 1294 (2d Cir. 1977)................................ 31
West Va. State Bd. of Educ.
v. Barnette,
319 U.S. 624 (1943) ............................ 25, 26, 29, 31
33-34, 46, 50, 51
Wisconsin v. Yoder,
406 U.S. 205 (1972) ............................. 21, 26-28, 29
31, 32, 33, 35
44, 47, 48, 53
Zorach v. Clauson,
343 U.S. 306 (1952) ................................................ 6
Constitutions, Statutes, and Regulations
28 U.S.C. 1254 ............................................................. 4
Ariz. Rev. Stat. § 15-102 .............................................. 7
Cal. Educ. Code § 51240 .............................................. 7
Cal. Educ. Code § 51934 .............................................. 8
ix
Conn. Gen. Stat. § 10-19 ............................................. 7
Ind. Code § 20-30-5-9 ................................................... 7
Md. Code Educ. § 7-301 ........................................ 15-16
Md. Code Regs. § 13A.01.06.01 ............................. 9, 37
Md. Code Regs. § 13A.01.06.03 ............................. 9, 37
Md. Code Regs. § 13A.04.18.01 ......................... 4, 7, 41
Md. Const. .................................................................. 45
Mich. Comp. Laws § 380.1170 .................................... 7
Mich. Comp. Laws § 380.1506 .................................... 7
Mich. Comp. Laws § 380.1507a................................... 7
Neb. Rev. Stat. § 79-531 .............................................. 7
Ohio Rev. Code § 3313.473 .......................................... 7
Okla. Admin. Code § 210:10-2-3 ................................. 7
Okla. Stat. tit. 25, § 2003 ............................................ 7
Okla. Stat. tit. 70, § 11-105.1 ...................................... 7
Or. Rev. Stat. § 336.455............................................... 8
Wash. Rev. Code § 28A.300.475 .................................. 8
x
Other Authorities
2020 Minnesota K-12 Academic Standards
in English Language Arts (ELA),
Minn. Dep’t of Educ. (Feb. 2024) ......................... 34
Ismail Allison, Over 1,000 Maryland
Parents, Community Members Urge
MCPS to Restore Curriculum Opt-Out
Option and Parental Notice, Dialogue
with Families, Council on AmericanIslamic Relations, Apr. 17, 2023 .......................... 14
Helen M. Alvaré, Families, Schools,
and Religious Freedom,
54 Loy. U. Chi. L.J. 579 (2023) ............................ 32
Approval of Family Life Advisory Committee
Opt-Out Recommendations for Grades
PreK through 5 Family Life Unit, Carroll
County Public Schools (Jan. 11, 2023) ................ 52
Nicole Asbury, Montgomery schools stopped
using two LGBTQ-inclusive books amid
legal battle, Washington Post, Oct. 23,
2024....................................................................... 11
Nicole Asbury & Katie Shepherd, Hundreds
of Maryland parents protest lessons they
say offend their faith, Washington Post,
June 27, 2023 ................................................. 15, 42
Catechism of the Catholic Church ............................ 17
xi
Brooke D’Amore Bradley, Sex Education
after Dobbs: A Case for Comprehensive
Sex Education, 39 Berkeley J. Gender,
L. & Just. 121 (2024) .............................................. 8
Em Espey, Parents, students, doctors react
to MCPS lawsuit targeting LGBTQ+
storybooks, MoCo360, June 2, 2023 ..................... 42
Jessica Fillak, The History of Sexuality
Education in the United States, Sexual
Health Alliance, June 8, 2021 ................................ 8
Shane Galvin, NY school board meeting
descends into chaos over ‘LGBTQIA+’
book as large group of fuming parents
takes over, N.Y. Post, Feb. 12, 2025 ..................... 34
Genesis ....................................................................... 17
Gospel of John............................................................ 17
Guidelines for Comprehensive Sexuality
Education, SIECUS (3d ed. 2004) ...................... 8-9
Aleja Hertzler-McCain, Montgomery County,
Maryland, was most religiously diverse
US county in 2023, Religion News
Service, Aug. 30, 2024 ............................................ 6
Nicole D. Katapodis, LGBTQ-Inclusive Sex
Education: Lessons the United States
Can Learn from the United Kingdom,
51 Ga. J. Int’l & Compar. L. 817 (2023) ................ 8
xii
Douglas Laycock, The Religious
Freedom Restoration Act,
1993 B.Y.U. L. Rev. 221 (1993) ............................ 25
The Pontifical Council for the Family, The
Truth and Meaning of Human Sexuality:
Guidelines for Education within the
Family, Dec. 8, 1995............................................. 18
Stephanie Ramirez, MCPS revises policy on
LGBTQ-friendly books, Fox 5 DC,
Mar. 24, 2023 ........................................................ 41
Kristen S. Rufo, Public Policy vs. Parent
Policy: States Battle over Whether
Public Schools Can Provide Condoms
to Minors Without Parental Consent,
13 N.Y.L. Sch. J. Hum. Rts. 589 (1997)................. 8
Naomi Rivkind Shatz, Unconstitutional
Entanglements: The Religious Right,
the Federal Government, and
Abstinence Education in the Schools,
19 Yale J.L. & Feminism 495 (2008) ..................... 8
Justin Sherman & Taylor Mooney, “Porn
literacy” class picks up where standard
sex ed leaves off, CBS News, Nov. 17, 2019 ......... 36
State Profiles, SIECUS ................................................ 8
Surah Al-An’am ......................................................... 16
Surah Al-Furqan ....................................................... 16
1 Thessalonians ......................................................... 17
INTRODUCTION
Over fifty years ago, Wisconsin v. Yoder recognized
as “beyond debate” the First Amendment right of parents “to guide the religious future and education of
their children.” The question here is whether that
right is infringed when a public school compels elementary schoolchildren as young as three to participate in instruction on gender and sexuality in violation of their parents’ religious beliefs—without notifying their parents or allowing them to opt out.
To ask that question is to answer it. Public schools
have long recognized the primacy of parents in instructing their children on sensitive matters of gender
and sexuality. If public schools have offered such instruction at all—a recent trend—they have almost
uniformly notified parents and allowed them to opt
their children out. Respondents here—the Montgomery County Board of Education and its officials (the
Board)—were no exception. They long allowed notice
and opt-outs for any “instruction related to family life
and human sexuality,” along with any “classroom discussions or activities that [parents or students] believe
would impose a substantial burden on their religious
beliefs.”
But in 2022, the Board introduced a series of controversial “LGBTQ-inclusive” storybooks to be read
and discussed with students in pre-K through fifth
grade. When hundreds of parents raised religious objections, the Board for the first time eliminated notice
and opt-outs—directing administrators and teachers
that parents could no longer be notified when the
books were taught or be allowed to opt their children
out. The Board’s own documents reveal that its goal in
compelling children to participate in this instruction is
2
to “disrupt” their “either/or thinking” on gender and
sexuality. And the Board concedes that children may
“come away from [such] instruction with a new perspective not easily contravened by their parents.”
Yoder forbids this result. Under the Free Exercise
Clause, parents have the right to opt their children out
of public school instruction that would “substantially
interfere with their religious development.” That test
is easily met here. No one disputes that gender and
sexuality are topics of enormous religious importance,
that children are uniquely impressionable and vulnerable on such matters, and that decisions related to
these topics can have life-changing and lifelong impacts. Nor can they dispute that, for elementary school
children in particular, “comprehensive” sex education
is a newcomer to public education and has overwhelmingly been structured to facilitate parental choice. As
in Yoder, this history and tradition compel the conclusion that forced instruction on such religiously sensitive matters would “substantially interfere” with children’s religious formation and their parents’ own religious exercise of guiding that development.
The Board’s policy separately triggers strict scrutiny because it lacks neutrality and general applicability under Lukumi. The program is shot through with
discretionary and ad hoc exemptions that allow students to opt out of various types of instruction, including sex education during health class, while forcing
pre-kindergarteners to participate in discussions
about sexuality and gender identity during English
class. That inexplicable double standard fails general
applicability. Indeed, the Board’s initial policy allowed
Petitioners to opt out of LGBTQ-inclusive instruction
because it imposed a “substantial burden”—effectively
3
acknowledging that the burden test is met. Amending
that policy in response to parents’ religious objections
further evinced a lack of general applicability—and
non-neutrality too. When parents protested the policy
change, the Board responded with a slew of hateful
comments comparing the (religiously and racially diverse) Petitioners to “white supremacists” and “xenophobes.” That is the opposite of government neutrality
towards religion.
The Board responds that Smith forecloses relief under Yoder and that any lack of general applicability
and neutrality under Lukumi is not enough—with
“enough” being an ever-evolving standard in the lower
courts. Under the Board’s view, Petitioners’ right to direct their children’s religious upbringing ends at the
schoolhouse doors, with no limit on what their children
may be taught within. But if that is what Smith allows, then Smith is in direct conflict with free-exercise
guarantees and should be overruled.
Finally, although the Fourth Circuit majority did
not address whether strict scrutiny is met, the dissent
did. This Court should as well. The same history and
tradition that upholds parents’ control over their children’s sex education forecloses a compelling interest in
forced instruction on such religiously fraught matters.
Any contrary answer would break the bond between
parent and child on matters that strike at the heart of
parental authority. That is incompatible with the Free
Exercise Clause’s guarantee that parents’ right to control the religious upbringing of their children is “beyond debate.”
4
JURISDICTION
This Court has jurisdiction under 28 U.S.C.
1254(1).
CONSTITUTIONAL PROVISIONS
AND REGULATIONS INVOLVED
The First Amendment to the United States Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof * * * .” U.S. Const.
Amend. I.
Maryland Code of Regulations 13A.04.18.01(D)(2)
provides:
(e) Student Opt-Out.
(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.
Maryland Code of Regulations 13A.01.06 provides:
The purpose of this chapter is to establish as a matter of policy and priority that:
***
.01(B) Each local school system’s procedures and
practices provide for educational equity and ensure
that there are no obstacles to accessing educational opportunities for any student; and
***
.03(B)(2) “Educational equity” means that every
student has access to the opportunities, resources, and
educational rigor they need throughout their educa-
5
tional career to maximize academic success and social/emotional well-being and to view each student’s
individual characteristics as valuable.
.03(B)(5) “Individual characteristics” means the
characteristics of each individual student, which include but are not limited to:
***
(d) Gender identity and expression; [and]
***
(j) Sexual orientation[.]
6
STATEMENT OF THE CASE
A. There is a national consensus respecting
parental control over instruction on
gender and sexuality.
Montgomery County, Maryland is the most religiously diverse county in the nation.1 For years, the
Board honored that diversity by “follow[ing] the best
of our traditions”: “respect[ing] the religious nature of
our people and accommodat[ing] the public service to
their spiritual needs.” Zorach v. Clauson, 343 U.S.
306, 314 (1952). The Board effectuated that respect
through its Religious Diversity Guidelines (“Guidelines”).
These Guidelines were in place through the end of
the 2022-2023 school year. So long as requests did not
become “too frequent or too burdensome,” the Guidelines provided opt-outs from any “classroom discussions or activities that [parents or students] believe[d]
would impose a substantial burden on their religious
beliefs.” Pet.App.221a. Further still, the Guidelines
committed the Board to “accommodate objections from
students or their parents/guardians to a particular
reading
assignment
on
religious
grounds.”
Pet.App.221a. Students could also receive excused absences for religious holidays—with a “case-by-case”
approach to whether they would have to make up
missed assignments. Pet.App.217a. And opt-outs were
also allowed from any “activities” such as “birthdays,”
“Halloween” or “Valentine’s day” that might be
“viewed by others as having religious overtones.”
Aleja Hertzler-McCain, Montgomery County, Maryland, was
most religiously diverse US county in 2023, Religion News Service, Aug. 30, 2024, https://perma.cc/86PU-3QLA.
1
7
Pet.App.223a. Regarding other “instructional activities,” the Board’s Guidelines “expect[ed]” them “to be
fair, objective, and not demean any religious or nonreligious beliefs.” Pet.App.673a.
These Guidelines augmented Maryland law, which
requires all local school districts to “establish policies,
guidelines, and/or procedures for student opt-out regarding instruction related to family life and human
sexuality
objectives.”
Md.
Code
Regs.
§ 13A.04.18.01(D)(2)(e)(i). Maryland is not alone in
this regard. All fifty states and the District of Columbia require or permit some aspects of sex education.2
And 47 states and the District of Columbia allow for
parental opt-outs—or require parental opt-ins—before
students may participate in sex education.3 Only three
states (Delaware and the Dakotas) are silent on the
matter. No state has gone so far as to bar opt-outs entirely.
Concern for parental rights is also reflected in the
introduction and growth of sex education throughout
the United States. Although modern public education
has its roots in the nineteenth century, sex education
2
Pet.6 n.4.
Of these jurisdictions, 38 require parental opt-outs. Pet.6 n.5;
see also Cal. Educ. Code § 51240; Conn. Gen. Stat. § 10-19(b);
Mich. Comp. Laws §§ 380.1170(3), 380.1506, 380.1507a; Neb.
Rev. Stat. § 79-531; Ohio Rev. Code § 3313.473(B)(1), (E), (G)(5)
(effective Apr. 9, 2025); Okla. Stat. tit. 70, § 11-105.1(A); Okla.
Stat. tit. 25, § 2003(A)(2)-(5); Okla. Admin. Code § 210:10-2-3(a).
Four more states go still further, requiring a parental opt-in before children receive instruction. Pet.7 n.6. And another six states
feature a combination of opt-out and opt-in rights. Pet.7 n.7; see
also Ariz. Rev. Stat. § 15-102(A)(4); Ind. Code § 20-30-5-9(d).
3
8
in public schools is a more recent development. Chicago public schools became “the first to implement formal sex education in schools with ‘personal purity’
talks” in 1913; but that was abandoned following parental backlash.4 After World War I, some high schools
and colleges implemented basic sexual health education focused on “supporting marriage and family.” 5
But public schools did not begin implementing sex education as part of their health curriculum until the
1970s,6 and sex education extending beyond physiology, hygiene, and disease prevention was not formulated until the 1990s.7 Even today, only three states—
Oregon, California, and Washington8—mandate “com-
Brooke D’Amore Bradley, Sex Education after Dobbs: A Case
for Comprehensive Sex Education, 39 Berkeley J. Gender, L. &
Just. 121, 126 (2024).
4
Nicole D. Katapodis, LGBTQ-Inclusive Sex Education: Lessons the United States Can Learn from the United Kingdom, 51
Ga. J. Int’l & Compar. L. 817, 820 (2023); Naomi Rivkind Shatz,
Unconstitutional Entanglements: The Religious Right, the Federal Government, and Abstinence Education in the Schools, 19
Yale J.L. & Feminism 495, 496 (2008).
5
Kristen S. Rufo, Public Policy vs. Parent Policy: States Battle
over Whether Public Schools Can Provide Condoms to Minors
Without Parental Consent, 13 N.Y.L. Sch. J. Hum. Rts. 589, 591592 (1997).
6
Jessica Fillak, The History of Sexuality Education in the
United States, Sexual Health Alliance, June 8, 2021,
https://perma.cc/BRL8-MSH3.
7
See Or. Rev. Stat. § 336.455 (2009 law); Cal. Educ. Code
§ 51934 (2016 law); Wash. Rev. Code § 28A.300.475 (2020 law);
see also State Profiles, SIECUS, https://perma.cc/V5QL-9MNG
(only three states that “require comprehensive sex education to
be taught in all schools”).
8
9
prehensive” sex education that seeks to explore “feelings, values, and attitudes” regarding “one’s own sexual orientation, * * * gender identities,” and “sexuality,”9 and those mandates were all adopted in recent
years (2009, 2016, and 2020, respectively). Even so,
like the long consensus, those states still allow parental opt-outs or opt-ins. Giving parents the final say on
such matters is a nationwide tradition.
B. The Board introduces “LGBTQ-inclusive”
instruction.
In 2019, Maryland enacted regulations seeking to
promote “educational equity,” which it defined as
“view[ing] each student’s” “gender identity and expression,” “sexual orientation,” and other specified “individual characteristics as valuable.” Md. Code Regs.
§§ 13A.01.06.01(B), 13A.01.06.03(B). As one aspect of
implementing this regulation, in November 2022, the
Board introduced “LGBTQ-inclusive” storybooks for
instructing students in elementary school, along with
corresponding guidance for teachers. Pet.App.272a;
see also Pet.App.273a-275a. In deciding which books
to adopt into its curriculum, the Board said it would
review options through an “LGBTQ+ Lens” and ask
whether books “reinforced or disrupted” “stereotypes,”
“cisnormativity,”
and
“power
hierarchies.”
Pet.App.622a.
One of the selected books, Pride Puppy, is a picture
book directed at three- and four-year-olds.
Pet.App.234a. It describes a Pride parade and what a
child might find there. Pet.App.254a-271a. The book
invites students barely old enough to tie their own
Guidelines for Comprehensive Sexuality Education at 13, 16,
SIECUS (3d ed. 2004), https://perma.cc/2QZB-9SS9.
9
10
shoes to search for images of “underwear,” “leather,”
“lip ring,” “[drag] king” and “[drag] queen,” and “Marsha P. Johnson,” a controversial LGBTQ activist and
sex worker. Pet.App.270a (brackets in original).
My Rainbow, a picture book for all elementary
ages, Pet.App.237a, tells the story of an autistic boy
who identifies as a transgender girl. Pet.App.358a389a. When his mother points to her own short hair,
he responds: “People don’t care if cisgender girls like
you have short hair. But it’s different for transgender
girls. I need long hair!” Pet.App.371a. The mother decides that her child knows best and sews him a rainbow-colored wig. Pet.App.382a-385a.
Intersection Allies is a picture book intended for
“Kindergarten through Grade 5.” Pet.App.236a. It invites children to ponder what it means to be
“transgender” or “non-binary” and asks “[w]hat pronouns fit you?” Pet.App.350a. By “standing together,”
the book claims, we will “rewrite the norms.”
Pet.App.345a.
In another book, What Are Your Words?,
Pet.App.548a, an uncle visits “their” niece/nephew,
whose pronouns are “like the weather. They change
depending on how I feel.” Pet.App.552a. The child
spends the day agonizing over the right pronouns.
Pet.App.553a-561a. Only at the end of the day, while
watching fireworks, does the child finally conclude
that “I’m like fireworks! * * * My words finally found
me! They and them feel warm and snug to me.”
Pet.App.562a. At least for “today.” Pet.App.564a.
Another—Love, Violet—also for “Kindergarten
through Grade 5,” Pet.App.239a, is about two young
girls and their same-sex playground romance.
11
Pet.App.429a-447a. One of the girls “blush[es] hot”
when pressed about her “SPECIAL” valentine.
Pet.App.435a. Teachers are encouraged to have a
“think aloud” moment to ask students how it feels
when they “don’t just ‘like’” but “like like” someone.
Pet.App.275a.
Born Ready, for all elementary ages, Pet.App.240a,
tells the story of a biological girl named Penelope who
identifies as a boy. Pet.App.448a-482a. When Penelope’s brother questions how someone can “become” a
boy, his mother chides him that “[n]ot everything
needs to make sense. This is about love.” Pet.App.465a.
Teachers are told to instruct students that, at birth,
doctors “guess about our gender,” but “[w]e know ourselves best.” Pet.App.630a-631a, 276a.
Finally, Jacob’s Room to Choose is about two young
children who identify as transgender. Pet.App.565a580a. Their teacher uses a game to persuade their
classmates to support gender-free bathrooms.
Pet.App.572a-576a. After relabeling the bathroom
doors to welcome multiple genders, the children parade with placards that proclaim “Bathrooms Are For
Every Bunny” and “[choose] the bathroom that is
comfy.” Pet.App.578a.10
Along with the storybooks, the Board issued guidance for teachers to direct instruction. Drawing on
Before filing its brief in opposition with this Court, and after
more than a year of using the storybooks in schools, the Board
pulled two—Pride Puppy and My Rainbow—over “concerns about
the content.” Nicole Asbury, Montgomery schools stopped using
two LGBTQ-inclusive books amid legal battle, Washington Post,
Oct. 23, 2024, https://perma.cc/EPR7-AXBB.
10
12
sources like “Correcting Kids’ Stereotypes” and “Gender Spectrum,” Pet.App.635a, the guidance tells teachers how they should respond to various student questions. They are directed to explain that “people of any
gender can like whoever they like” and to interrogate
students over whether they “think it’s fair for people
to decide for us who we can and can’t like?”
Pet.App.629a. Teachers are encouraged to follow-up
with an “example,” like “My best friend is a woman
and she is married to another woman.” Pet.App.630a.
If students say it’s “weird” for a girl to claim being “a
boy if he was born a girl,” the teacher is to emphasize
that “not everyone is a boy or girl” and that “[s]ome
people identify with both, sometimes one more than
the other and sometimes neither,” so students
“shouldn’t” “guess” but instead solicit others’ “pronouns.” Pet.App.630a-632a. When it comes to “what
their gender is,” teachers are to tell students that
“they are the experts on themselves” and that “[s]ometimes people feel like a boy or a girl, sometimes they
feel like both, sometimes they feel like neither.”
Pet.App.631a. Teachers are told to frame disagreement with these ideas as “hurtful,” Pet.App.630a,
634a, and to counter with examples of “[m]en who
paint their nails” or “wear[ ] dresses,” Pet.App.633a634a.
The guidance documents also instruct teachers—
twice—to “[d]isrupt the either/or thinking” of elementary students about biological sex. Pet.App.629a,
633a. And teachers are instructed not to suggest there
could be reasonable disagreement. Rather, they are to
say that “[s]ometimes when we learn information
that’s different from what we always thought, it can
be confusing and hard to process.” Pet.App.630a.
13
The Board’s own elementary school principals objected to the storybook instruction. Pet.App.614a621a. They expressed concern that the books were “designed to spark curiosity about [gender and sexuality],
as opposed to * * * inclusivity.” Pet.App.620a. The
principals also found it “problematic to portray elementary school age children falling in love with other
children,
regardless
of
sexual
preferences.”
Pet.App.617a. And they further objected that the
books “support the explicit teaching of gender and sexual identi[t]y”; invite “shaming comment[s]” toward
students who disagree; “[s]tate[ ] as * * * fact” things
that “[s]ome would not agree” are facts; and are “dismissive of religious beliefs.” Pet.App.619a-621a.
The Board “do[es]n’t dispute” that at least “one” of
the books must be read each year and that “there will
be discussion that ensues.” Pet.App.642a. Rather,
“there is an expectation that teachers use the LGBTQInclusive Books as part of instruction.” Pet.App.605a;
see also Pet.App.137a n.12. And the Board acknowledges that “[a]ny child * * * may come away from
[the storybook] instruction” with “a new perspective
not easily contravened by their parents.” J.A.46. As
stated on a slide presentation about the storybooks,
the Board maintains that “Everyone Needs These
Books” to combat the “dominance, superiority and entitlement” of the “dominant culture.” Pet.App.517a.
C. The Board breaks with the consensus and
bans notice and opt-outs.
After the Board adopted the storybook lessons in
2022, it initially honored parental opt-outs in accordance with its own Guidelines and Maryland law.
Pet.App.533a-534a, 540a, 544a-545a, 185a-187a,
497a-498a. This reflected the numerous questions and
14
concerns parents raised when the storybooks were introduced. At public meetings dedicated to discussing
the “LGBTQ+ Inclusive Picture Books,” Pet.App.499a,
parents asked the Board to “[p]lease address how a
Halloween parade was cancelled because of religious
or personal beliefs of 25-30 students and how do you
compare these topics to that?” Pet.App.504a. Or
simply, “how is this appropriate?” Pet.App.504a.
On March 22, 2023, the Board issued a public statement making clear that “[i]f a parent chooses to opt
out, a teacher can find a substitute text for that
student
that * * * aligns
with
curriculum.”
Pet.App.184a. But the very next day, the Board reversed course. Without explanation, it announced that
beginning with the 2023-2024 school year, “[s]tudents
and families may not choose to opt out” and will not be
informed when “books are read.” Pet.App.185a, 657a.
The statement affirmed, however, that high school
students could continue to opt out of sex education.
Pet.App.185a, 657a. And because of the Religious Diversity Guidelines, students could still opt out of any
other instruction that “would impose a substantial
burden on their religious beliefs.” Pet.App.220a-221a.
Only religious objections to the LGBTQ-inclusive instruction were left unprotected.
Within weeks of the Board’s reversal, over 1,000
parents signed a petition asking the Board to restore
their notice and opt-out rights.11 Hundreds of them—
Ismail Allison, Over 1,000 Maryland Parents, Community
Members Urge MCPS to Restore Curriculum Opt-Out Option and
Parental Notice, Dialogue with Families, Council on AmericanIslamic Relations, Apr. 17, 2023, https://perma.cc/JH3S-LQKG.
11
15
“largely * * * Muslim and Ethiopian Orthodox parents”—some with their children, crowded into Board
meetings to express concern that “the school system is
violating their [First Amendment] rights.” 12 Board
members responded by publicly condemning students
for “parroting” their parents’ “dogma,” accusing the
parents of promoting “hate,” and comparing them to
“white
supremacists”
and
“xenophobes.”
Pet.App.103a, 106a-107a, 187a; see also Pet.App.514a
(stating that objecting to books as “inappropriate” is a
“dehumanizing form of erasure”).
Months later, in response to this lawsuit, the Board
revised its Religious Diversity Guidelines to limit optouts to “noncurricular activities” or “free-time events”
that “conflict with a family’s religious, and/or other,
practices.” Pet.App.672a. The new Guidelines state
that the Board “cannot accommodate” opt-outs from
“required curricular instruction or the use of curricular instructional materials based on religious, and/or
other, objections.” Pet.App.672a. Counsel for the
Board explained that the books involving gender and
sexuality were mandated “precisely * * * to fight
against” the notion that such material belongs in “a
special curriculum from which people may have the
opt-out right in Maryland.” J.A.49-50.
Under Maryland law, parents are required to keep
their elementary-age children in public school, unless
they have capacity to provide an alternative adequate
education, Md. Code Educ. § 7-301(a)(3), (a-1)(1)—for
Nicole Asbury & Katie Shepherd, Hundreds of Maryland parents protest lessons they say offend their faith, Washington Post,
June 27, 2023, https://perma.cc/MJ2Q-BXTW.
12
16
example, by sending them to private school or homeschooling them. Any parent who fails to comply “is
guilty of a misdemeanor” and may be subjected to fines
and imprisonment. Id. § 7-301(e)(2).
D. Petitioners cannot maintain their religious exercise.
Petitioners Tamer Mahmoud and Enas Barakat reside in Montgomery County, Maryland, with one son
in elementary school. Pet.App.529a. Respect for “God’s
wisdom in creation” lies at the heart of their Muslim
faith. Pet.App.531a. This includes a religious conviction that “‘gender’ cannot be unwoven from biological
‘sex’” without “rejecting the dignity” God has “bestowed on humanity.” Pet.App.530a. They believe children “attain their fullest God-given potential by embracing their biological sex.” Pet.App.531a.
For Mahmoud and Barakat, this is a sacred obligation. It underlies their beliefs regarding the importance of marriage and sexuality for “creating children”—“not only to build a loving family but also to
serve as an example of righteousness for society at
large.” Pet.App.530a (citing Surah Al-Furqan 25:74).
To avoid confusion, their faith forbids them from “exposing [their] impressionable, elementary-aged son to
activities and curriculum on sex, sexuality, and gender
that undermine Islamic teaching.” Pet.App.532a (citing Surah Al-An’am 6:68-69). They believe there
would be “detrimental spiritual consequences” from
subjecting their son to instruction “concerning sexual
and gender ethics that contravene well-established Islamic teachings.” Pet.App.532a. Thus, after being told
no future opt-outs would be allowed, they were religiously compelled to send their son to private school at
significant financial sacrifice.
17
Petitioners Melissa and Chris Persak are Roman
Catholic and have two elementary-age daughters in
public school. Pet.App.542a. They believe that “a person’s biological sex is a gift bestowed by God that is
both unchanging and integral to that person’s being.”
Pet.App.543a. They have a religious obligation to
teach their children about the “immutable sexual differences between males and females, the biblical way
to properly express romantic and sexual desires, and
the role of parents to love one another unconditionally
and sacrificially within the confines of biblical marriage.” Pet.App.543a.
These beliefs are foundational to the Persaks’ religious understanding of the importance of “creat[ing]
and sustain[ing] a family,” which is “not only necessary for raising the next generation of children” but
also for “human flourishing and happiness.”
Pet.App.543a (citing Genesis 1:28; John 8:51, 14:21,
15:10). Because elementary-age children “are highly
impressionable,” their faith forbids them from subjecting their children to instruction that undermines their
religious beliefs on gender and sexuality.
Pet.App.544a.
Petitioners Svitlana and Jeff Roman are Ukrainian
Orthodox and Roman Catholic, respectively. They reside in Montgomery County with their elementary-age
son. They believe that gender and biological sex are
“intertwined and inseparable,” Pet.App.535a-537a,
and “an integral part of God’s design,” Pet.App.536a
(citing 1 Thessalonians 5:23; Catechism of the Catholic
Church, cc. 362-368). They have a religious obligation
to help their son “accept [his] own body as it was created” and to “attain [his] fullest God-given potential by
embracing [his] biological sex.” Pet.App.537a-538a.
18
The Romans accept Catholic teaching that during
“‘the years of innocence’ from about five years of age
until puberty,” children “must never be disturbed by
unnecessary information about sex.” Pet.App.539a
(quoting The Pontifical Council for the Family, The
Truth and Meaning of Human Sexuality: Guidelines
for Education within the Family, 78 (Dec. 8, 1995)).
Especially while their young son inherently “loves”
and “implicitly trusts” his teachers, the Romans have
a religious duty to direct when and how he is taught
“principles about sexuality or gender identity.”
Pet.App.541a. Failing this duty would be “spiritually
and emotionally harmful to his well-being.”
Pet.App.541a. Thus, after the Board withdrew notice
and opt-outs, they too were religiously compelled to
send their son to private school, at significant expense.
Petitioner Kids First is an unincorporated association formed to protect parental opt-out rights in Montgomery County schools. Its members include hundreds
of parents of diverse faiths, all of whom—like the
named families—have a religious obligation not to expose their young children to instruction on gender and
sexuality that violates their religious beliefs.
Pet.App.163a, 168a.
One of those parents is Grace Morrison. She and
her husband adopted their youngest daughter, who
has Down Syndrome and Attention Deficit Disorder,
from Ukraine. Pet.App.624a. Because of her disabilities, their daughter’s ability to make independent
judgments is impaired, making her particularly impressionable. Pet.App.626a-627a. Before the end of the
2022-2023 school year, Grace heard from others about
the LGBTQ-storybook curriculum and emailed her
daughter’s teacher
to
request an opt-out.
19
Pet.App.626a. The request was denied. Pet.App.626a.
At the beginning of the following school year, Grace
asked her daughter’s teacher for a schedule so she
could know when the storybook instruction would take
place. Pet.App.648a. Again, she was refused.
Pet.App.648a. Grace and her husband were then religiously compelled to remove their daughter from
school, at a cost of $25,000 a year in “therapy
and * * * academic services and supplies” that she
previously accessed through the public system.
Pet.App.648a-649a.
E. Petitioners sue.
Stripped of their notice and opt-out rights, Petitioners sued and moved for a preliminary injunction.
They argued that denial of notice and opt-outs violated
the Free Exercise Clause by overriding their freedom
to direct the religious upbringing of their children and
by burdening their religious exercise via policies that
are not neutral or generally applicable.
The district court denied the motion, holding that
Petitioners could not show “that the no-opt-out policy
burdens their religious exercise.” Pet.App.114a. After
thus finding no likelihood of success on the merits, the
district court concluded that the remaining injunctive
factors also favored the Board. Pet.App.152a-154a.
Petitioners immediately sought an injunction
pending appeal from the Fourth Circuit. The court denied that motion but ordered expedited briefing on the
merits. Following oral argument, a divided panel affirmed the district court’s ruling. The majority found
no free-exercise burden because there was “no evidence at present” that Petitioners were “compel[led] * * * to change their religious beliefs or
20
[their] conduct” or “what they teach their own children.” Pet.App.34a. Nor were they “asked to affirm
views contrary to their own” or to “change how they
feel about” gender and sexuality. Pet.App.34a. Petitioners, the court reasoned, remained “free[ ]” to “discuss[ ] the topics raised in the [s]torybooks with their
children” and to “teach[ ] their children as they wish.”
Pet.App.35a. The majority also found Yoder inapplicable, because “[i]n the decades since [it] was decided,”
circuit courts have given it a “limited holding” based
on its “unique record.” Pet.App.38a.
Judge Quattlebaum dissented. He concluded that
“burdening the exercise of religion is not limited to direct coercion.” Pet.App.59a. Rather, religious liberty
“may be infringed by the denial of or placing of conditions upon a benefit or privilege.” Pet.App.60a. Because the no-opt-out policy forced Petitioners “to either
live out their faith or forgo the public benefit,” their
religious exercise was burdened. Pet.App.66a n3.
Judge Quattlebaum also concluded that this approach
was not neutral or generally applicable because the
Board had “discretion to grant religious opt-out requests” and because Maryland law requires “notice
and opt-out procedures for all ‘family life and human
sexuality’ instruction.” Pet.App.68a, 70a n.4. The
Board could not avoid that obligation “just by adding
instruction [on gender and sexuality] to other classes.”
Pet.App.70a n.4. Concluding that strict scrutiny could
not be met, Pet.App.72a-73a, Judge Quattlebaum
would have granted a preliminary injunction.
Pet.App.75a.
Without addressing any of the case law discussed
by Judge Quattlebaum, the majority remanded for further proceedings. In the district court, the Board
21
moved to dismiss on the ground that the complaint
fails to allege any students have been coerced to
change, or act against, their religious beliefs. The district court stayed the matter pending appeal.
SUMMARY OF ARGUMENT
The First Amendment places high value on the
right of parents to convey their religious beliefs and
practices to their children. For Petitioners, that right
has special significance as they seek to instill religious
beliefs on gender and sexuality—beliefs crucial for
their children’s ability to fulfill religious aspirations
concerning marriage and family. By compelling instruction designed to indoctrinate Petitioners’ children against their religious beliefs—all without notice
or opportunity to opt out—the Board has put Petitioners to an impossible choice. They must subject their
children to instruction intended to disrupt their religious beliefs or forgo the benefits of a public education
at the sizeable cost of either paying for private school,
homeschooling, or facing government fines and penalties. That obvious burden on Petitioners’ free exercise
is constitutionally impermissible for at least two reasons.
First, the Free Exercise Clause prohibits government schools from “substantially interfering with the
right of parents to direct the religious upbringing of
their children.” Wisconsin v. Yoder, 406 U.S. 205, 218,
232 (1972). Children in elementary school are at the
most formative stage of their lives and are highly impressionable and vulnerable to peer pressure—especially on such potent and religiously laden topics as
gender and sexuality. In Yoder, the Court held that
subjecting high schoolers to an educational environment that incidentally conflicted with their religious
22
beliefs justified parents withdrawing them from public
school entirely. Petitioners’ much narrower request to
opt their children out from discrete instruction that
deliberately seeks to confound their religious values
compels the same result. The longstanding consensus
of states deferring to parents on when and how their
children will receive sex education confirms that compelled instruction against their religious beliefs substantially interferes with Petitioners’ free exercise
right.
Second, the Board’s ban on notice and opt-outs fails
the Free Exercise Clause’s minimum requirement of
general applicability and neutrality under Church of
Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.
520 (1993). Suspending notice and opt-outs created
topsy-turvy categorizations that allow a fourteenyear-old to be excused from instruction on gender and
sexuality during sex education, while a four-year-old
must sit through the same instruction during English
class. The policy also lacks general applicability because the Board has total discretion over when the policy applies. The original Guidelines allowed opt-outs
unless requests became “too frequent” or “too burdensome.” And when the Board first cancelled opt-outs,
the cancellation applied solely to the storybook instruction. Even then the Board said it would honor any
opt-outs already granted through the end of the school
year. This maneuvering alone demonstrates the
Board’s retained discretion over when it can infringe
Petitioners’ religious direction over their children.
The Board’s more recent amendment to the Guidelines, which bans all “curricular” opt-outs, doesn’t
solve the problem. The surviving opt-outs for “noncur-
23
ricular” activities undermine the Board’s asserted interests in the same way. Moreover, the Board’s decision to level-down was a targeted response to parents’
religious objections. Any doubt was removed by Board
members’ explicit religious hostility—which has never
been disavowed—in accusing objecting parents of
aligning with “white supremacists” and “xenophobes”
and criticizing their children for “parroting” their parents’ “dogma.” The non-neutrality compounds the lack
of general applicability.
None of this can survive strict scrutiny. The same
national consensus on parental deference that demonstrates substantial interference also demonstrates
there is no compelling interest in withholding notice
and opt-outs. And the Board’s generic concerns about
disruption, stigma, and compliance with unspecified
civil rights laws fail the “more precise” analysis demanded by the First Amendment. Finally, in its slapdash blitz to eliminate opt-outs and exclude parents,
the Board did not even bother to consider obvious less
restrictive means. Strict scrutiny demands far more.
*
*
*
Breaking the bond between parent and child to develop the state’s view of the “ideal citizen[ ]” has no
root in the “ideas * * * upon which our institutions
rest.” Meyer v. Nebraska, 262 U.S. 390, 627-628 (1923).
The Court should reverse.
24
ARGUMENT
I. The Board has burdened Petitioners’ free exercise.
Petitioners may “prov[e] a free exercise violation in
various ways.” Kennedy v. Bremerton Sch. Dist., 597
U.S. 507, 525 (2022). Here, there are at least two.
A. The Board’s actions substantially interfere
with Petitioners’ rights under Yoder to direct the religious upbringing of their children.
This case falls squarely within Yoder, triggering
Petitioners’ rights under the Free Exercise Clause.
1. The Court has “long recognized the rights of
parents to direct ‘the religious upbringing’ of their children.” Espinoza v. Montana Dep’t of Revenue, 591 U.S.
464, 486 (2020). In Meyer v. Nebraska—decided before
the Free Exercise Clause was incorporated against the
states—a teacher at a Lutheran parochial school was
tried and convicted for teaching students German,
which was prohibited by a state law enacted during
World War I. 262 U.S. 390, 396-397 (1923). “The text
book used for such teaching was a book of biblical stories.” Meyer v. State, 187 N.W. 100, 101 (Neb. 1922).
The defendant argued that “in teaching the German
language in this book he was giving religious instruction.” Ibid. In reviewing his conviction, this Court upheld the right of parents to “establish a home and
bring up children” and to “control [their] education,”
including in teaching a foreign language. Meyer, 262
U.S. at 399, 401. No law could restrict this right “without doing violence to both letter and spirit of the Constitution.” Id. at 402.
25
Two years later, the Court reinforced this ruling in
Pierce v. Society of Sisters of the Holy Names of Jesus
& Mary, 268 U.S. 510 (1925). Pierce addressed a law
that “the Ku Klux Klan and other Nativist groups
pushed through * * * requiring all children to attend
public schools; the effect would have been to close the
Catholic schools.” Douglas Laycock, The Religious
Freedom Restoration Act, 1993 B.Y.U. L. Rev. 221, 223
(1993). On review, this Court found it “entirely plain”
that a law mandating public education violated “the
right of parents to choose” for their children an “appropriate mental and religious training” in a private religious school. Pierce, 268 U.S. at 532, 535. Parents
“have the right, coupled with the high duty, to recognize and prepare” their children for “obligations” beyond duties owed the state. Id. at 535. Thus, even
though the Oregon law was “expected to have general
application,” Pierce rejected “any general power of the
state to standardize its children by forcing them to accept instruction from public teachers only.” Ibid.
After incorporating the Free Exercise Clause
against the states, the Court extended this free exercise right into public schools in West Virginia State
Board of Education v. Barnette. There, to foster the
“spirit of Americanism,” and as part of its “instruction
in history” and “civics,” the West Virginia Board of Education required public school students to salute and
pledge allegiance to the flag. 319 U.S. 624, 625-626
(1943). Participation was “not optional.” Id. at 632. Jehovah’s Witness parents objected to this requirement,
which violated their religious beliefs, and sued under
the Free Exercise Clause to opt their children out. Id.
at 629.
26
There was no evidence that the West Virginia
school board required children to “become unwilling
converts” or “forgo any contrary convictions.” Barnette,
319 U.S. at 633. This Court nonetheless held that compelling the pledge “invades the sphere of intellect and
spirit” that the First Amendment guards “from all official control.” Id. at 642. Justices Black and Douglas
provided the deciding votes, emphasizing that “compelling little children to participate in a ceremony
which ends in nothing for them but a fear of spiritual
condemnation” “fails to accord full scope to the freedom of religion secured * * * by the First and Fourteenth Amendments.” Id. at 643-644 (Black, J., and
Douglas, J., concurring); see also id. at 645 (Murphy,
J., concurring) (pledge requirement violates the “freedom to believe [and] freedom to worship one’s Maker
according to the dictates of one’s conscience”).
The Court rejected the argument that the pledge
requirement was justified by the government’s interest in “National unity [a]s the basis of National security.” Barnette, 319 U.S. at 640. That interest was insufficient to overcome the “freedom” to be “spiritually
diverse”—to differ not just as to “things that do not
matter much,” but also “as to things that touch the
heart of the existing order.” Id. at 641-642. The Court
also rejected the argument that policing the “functions
of educational officers * * * would in effect make [it]
the school board for the country.” Id. at 637. The First
Amendment “protects the citizen against the State itself and all of its creatures—Boards of Education not
excepted.” Ibid.
Wisconsin v. Yoder further rooted the right recognized by Pierce, Meyer, and Barnette in the Free Exercise Clause. In a claimed effort to “protect children
27
from ignorance” and to prepare them to “be self-reliant
and self-sufficient participants in society,” Wisconsin
mandated public school attendance for children up to
the age of 16. Wisconsin v. Yoder, 406 U.S. 205, 221222 (1972). A group of Amish parents who believed secular education beyond the eighth grade “would not
only expose themselves to the danger of the censure of
the church community, but * * * also endanger their
own salvation and that of their children,” refused to
comply with the statute and challenged its application
on free exercise grounds. Id. at 209.
In ruling for the parents, the Court recognized the
“fundamental interest of parents” to guide their children’s religious future and education, which was “established beyond debate as an enduring American tradition.” Yoder, 406 U.S. at 232; see also Espinoza, 591
U.S. at 486 (“[d]rawing on” this tradition); id. at 525
(Breyer, J., dissenting) (“The Free Exercise Clause
draws upon a history that places great value upon the
freedom of parents to teach their children the tenets of
their faith.”); see also Our Lady of Guadalupe Sch. v.
Morrisey-Berru, 591 U.S. 732, 754-756 (2020) (highlighting the “central importance” for religious believers in “educating the young in the faith”). Considering
this enduring interest, the Court agreed that secondary schooling would, in fact, burden the parents’ free
exercise rights “by substantially interfering with the
religious development of the Amish child and his integration into the way of life of the Amish faith community.” Yoder, 406 U.S. at 218.
To support this conclusion, the Court repeatedly
emphasized that children entering high school are at
a “crucial adolescent stage of development,” including
a “crucial * * * period of religious development.”
28
Yoder, 406 U.S. at 218, 223; see also id. at 211-212. For
Amish children, high school was a turning point, with
increased emphasis on “intellectual and scientific accomplishments, self-distinction, competitiveness,
worldly success, and social life with other students”—
values that were “hostile to Amish beliefs.” Id. at 211.
All this, along with “teachers who are not of the Amish
faith—and may even be hostile to it—interpose[d] a
serious barrier to the integration of the Amish child
into the Amish religious community.” Id. at 211-212.
Having found a free exercise burden, the Court proceeded to strict scrutiny. That analysis focused on the
state’s interest in education. Although “[p]roviding
public schools ranks at the very apex of the function of
a State,” the Court recognized that “[t]he requirement
for compulsory education beyond the eighth grade
[was] a relatively recent development.” Yoder, 406
U.S. at 213, 226. The state’s core interest was in “protect[ing] children from ignorance” and preparing them
to “be self-reliant and self-sufficient participants in society.” Id. at 221, 222. The nation’s “fundamental theory of liberty” excluded “any general power of the State
to standardize its children.” Id. at 233.
2. The principles in Yoder distilled from Meyer,
Pierce, and Barnette control the result here. There is
no dispute that Petitioners sincerely believe that subjecting their children to instruction contrary to their
religious beliefs could “endanger their own” standing
before God “and that of their children.” Yoder, 406 U.S.
at 208; Pet.App.532a (“detrimental spiritual consequences”); Pet.App.541a (“spiritually and emotionally
harmful”); Pet.App.543a-544a (serious “risk” to “flourishing and happiness”). And it is also undisputed that,
29
in response to Petitioners’ requests to opt their children out for religious reasons, the Board ultimately
prohibited that religious exercise. Pet.App.533a-534a,
540a, 544a-545a. Petitioners could no longer direct
their children away from religiously objectionable instruction on gender and sexuality. They weren’t even
allowed to know when the instruction would take
place. Pet.App.648a, 657a. By any definition, that constitutes “substantial interference” with Petitioners’ religious development of their children. Yoder, 406 U.S.
at 213 (“compelling attendance * * * unreasonably
interfere[s] with the interest of parents in directing
the rearing of their off-spring”).
The Board’s intentionality confirms the burden’s
substantiality. As the Board acknowledges, its curriculum was designed to “[d]isrupt” children’s “cisnormativity” and “either/or thinking.” Pet.App.622a, 629a,
633a; cf. Barnette, 319 U.S. at 633 (goal to instill certain “attitude of mind”). Its teacher guides do not focus
on “sentence structure, word choice, and style.” BIO.5.
They anticipate a religious burden, providing teachers
party-line responses to what students “might say”
when their religious beliefs have been predictably confounded by the storybook instruction. Pet.App.628a635a. The Board encourages teachers to rectify students’ questions with ideological, value-laden responses that imply that students are not being “fair,”
Pet.App.629a, are out of touch (“Harry Styles wears
dresses”), Pet.App.633a, or are being “hurtful” or are
“confus[ed]” in asking questions such as “How can
someone be both a boy and a girl or neither?”
Pet.App.630a-631a. The source-books for responding
to student questions expose the aim: “Correcting Kids’
Stereotypes;” “Responding to Sexism, Homophobia
and Transphobia;” “Anti-Bias Education for Young
30
Children and Ourselves;” and “Gender Spectrum.”
Pet.App.635a.
The Board foresaw the inevitable burden on parents too, feeding teachers similarly dismissive boilerplate. Pet.App.636a-641a. For parents asking why
children should “learn about gender and sexuality
identity at school,” the Board condescends: “A School
is where children are taught to respect one another * * * [and] [l]earning about * * * gender diversity and sexuality identity diversity is part of that
work.” Pet.App.636a. For parents worried that their
children are “too young” to have the gender binary disrupted, the Board imparts armchair sociology: “Children are already learning about it and mostly see
‘straight’ and ‘cisgender’ representations around
them,” so “[i]t is never too early.” Pet.App.637a-638a.
And for parents concerned that such instruction would
undermine “the values” they seek to “instill[ ] in [their]
child[ren],” the Board assures: “Teaching about
LGBTQ+ is not about making students think a certain
way; it is to show that there is no one ‘right’ or ‘normal’
way to be.” Pet.App.638a. This is relativistic dogma
masquerading as tolerance.
Not even Montgomery County’s own elementary
school principals were fooled. In private correspondence from November 2022, they warned the Board that
the storybooks, guidance for teachers, and overall
“messaging” were age-inappropriate, misleading, and
“dismissive of religious beliefs.” Pet.App.614a-615a,
617a, 619a.
It’s no mystery why these concerns went unheeded.
The storybooks were deliberately selected “to actualize” the Board’s “sexual” and “gender identity guidelines.” Pet.App.640a-641a. The Board wants students
31
to “come away from [the storybook] instruction with a
new perspective not easily contravened by their parents.” J.A.46; Pet.App.657a. That’s why it accused objecting parents of aligning with “white supremacists”
and “xenophobes” and scorned objecting students for
“parroting” their parents’ “dogma.” Pet.App.106a107a. If the Board doesn’t intend to disrupt students’
religious beliefs, there is no reason to deny notice of
when the books will be read. The entire point of the
exercise is to achieve what burdens Petitioners: substantial interference with their ability to direct the religious education of their children on matters concerning gender and sexuality. The Court is “not required to
exhibit a naiveté from which ordinary citizens are
free.” Department of Com. v. New York, 588 U.S. 752,
785 (2019) (quoting United States v. Stanchich, 550
F.2d 1294, 1300 (2d Cir. 1977) (Friendly, J.)).
“[M]odest estimates” of judicial competence in “such
specialties as public education” are not a Bill of Rights
bypass. Barnette, 319 U.S. at 640.
3. As in Yoder, Petitioners’ showing of substantial
interference is buttressed by a strong history and tradition—here, one of parental deference when it comes
to instruction on gender and sexuality. As “any parent
knows,” children and adolescents “lack maturity,” are
prone to “impetuous and ill-considered actions and decisions,” and are especially susceptible to outside “influences” and “pressures, including peer pressure.”
Roper v. Simmons, 543 U.S. 551, 569 (2005); see also
Yoder, 406 U.S. at 211. This is especially concerning
when it comes to “issue[s] as sensitive and important
as [child] sexuality” and gender. Bowen v. Kendrick,
487 U.S. 589, 612 (1988). Such instruction implicates
“fundamental elements of religious doctrine.” Ibid.
And sex education in “group settings, such as public
32
schools, where confident and authoritative leaders endorse particular beliefs and conduct, will have significant influence upon minor students.” Helen M. Alvaré,
Families, Schools, and Religious Freedom, 54 Loy. U.
Chi. L.J. 579, 600 (2023); see also Pet.App.40a-41a (acknowledging “heightened concern[ ]” in light of Petitioners’ children’s “young ages and impressionability”); Pet.App.616-617a (principals’ concerns that materials not age-appropriate). Thus, even when protecting sexual minorities, this Court has promised First
Amendment protection for “religious * * * persons”
as they “seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to
their own deep aspirations to continue the family
structure they have long revered.” Obergefell v.
Hodges, 576 U.S. 644, 679-680 (2015).
Deference to parental authority on such matters is
further reflected in the development of sex education.
It did not become a standard part of public school curriculum until the 1970s and, even then, was focused
mainly on physiology, hygiene, and disease prevention. Supra 8. More “comprehensive” sex education
was not a standard aspect of public high school instruction until the 1990s. Supra 8. And discussion of
human sexuality and gender identity in pre-kindergarten is—to put it mildly—a “relatively recent development.” Yoder, 406 U.S. at 226.
Even as public school instruction on human sexuality has expanded, it has almost always been accompanied by parental notice and requirements for either
parental opt-outs or opt-ins. Supra 7. Only three
states have no such requirement, and they are silent
on the matter. Supra 7. No state has ever affirmatively
denied parents access to information and opportunity
33
to opt-their child out from instruction on gender and
sexuality. This pattern reinforces Petitioners’ “convincing showing” that compelled instruction on gender
and sexuality “substantially interfer[es] with the religious development” of their children. Yoder, 406 U.S.
at 218, 235-236.
4. The Fourth Circuit dismissed all this, summarily concluding that Yoder has been “markedly circumscribed” and “limited” to the “unique record” established by the Amish. Pet.App.37a, 38a. But this Court
has never suggested that Yoder’s holding is so restricted. See, e.g., Espinoza, 591 U.S. at 486 (relying
on the “enduring American tradition” affirmed by
Yoder). And Yoder itself derived its holding from “[t]he
history and culture of Western civilization” and “[t]he
fundamental theory of liberty upon which all governments in this Union repose.” Yoder, 406 U.S. at 232,
233. The right of parents to direct the religious education of their children was “specifically and firmly
fixed” in the First Amendment, “[l]ong before there
was general acknowledgment of the need for universal
formal [sex] education.” Id. at 214; see also Barnette,
319 U.S. at 638 (“very purpose of a Bill of Rights was
to withdraw certain subjects from the vicissitudes of
political controversy”).
The Fourth Circuit’s view that Petitioners could experience no religious burden absent evidence that students were being compelled “to change their religious
beliefs,” Pet.App.34a, is similarly foreign to Yoder. The
Amish parents were not required to wait until their
children “ha[d] in fact been asked” to “disavow” the
Amish way of life. Pet.App.34a. Nor did the Court have
any objective measure for determining whether—after
eight years in the public schools, Yoder, 406 U.S. at
34
207 & n.1—staying just one or two more really would
have pushed Amish children beyond the point of no religious return. Rather, based on the student’s age, the
realities of adolescent development, and the nature of
the high school environment, the Court accepted the
parents’ religious judgment that further “exposing
[their] children to worldly influences” would “substantially interfer[e] with the religious development of
[their] child.” Yoder, 406 U.S. at 218. Petitioners have
made the same showings—only further bolstered by
undisputed evidence that the storybook curriculum is
actively hostile to their religious beliefs and by a long
and deep national consensus protecting parental direction on gender and sexuality. Thus, a holding of
“substantial interference” here fits easily within
Yoder’s reasoning.
In contrast, under the Board’s rule, there is no limit
to what schools could teach children about gender and
sexuality. This February, parents in New York were
ignored by their school board after they objected that
the book “The Rainbow Parade”—which “includes depictions of a naked person shown from behind, furries,
and
a
gay
couple
outfitted
in
leather
BDSM * * * attire”—was read to their elementary
school children ages five to eleven.13 Starting in the
2025-2026 school year, Minnesota third-graders will
be required to use “non-binary gender pronouns” if
they want to meet writing benchmarks.14 As long as
Shane Galvin, NY school board meeting descends into chaos
over ‘LGBTQIA+’ book as large group of fuming parents takes
over, N.Y. Post, Feb. 12, 2025, https://perma.cc/3DHP-SEJD.
13
2020 Minnesota K-12 Academic Standards in English Language Arts (ELA) at 37, Minn. Dep’t of Educ. (Feb. 2024),
https://perma.cc/84LN-7B3E.
14
35
it’s done in English class, schools could teach children
of any age that “[s]ex play with friends of the same
gender is not uncommon during early adolescence,”15
subject them to porn literacy lessons, 16 or even ask
them to participate in graphic and sexually explicit sex
simulations.17 To the Board, “once you enroll your children in public schools, you have to recognize that they
may be exposed to this material.” C.A. Oral Arg. 48:3048:36, http://bit.ly/4iepRQw; see also id. at 25:57-26:15
(“part of the compromise”). When it comes to instruction on gender and sexuality, such “hydraulic insistence on conformity to majoritarian standards” makes
the First Amendment burden on religion “inescapable.” Yoder, 406 U.S. at 217-218.
B. The Board’s actions are not generally applicable or neutral under Lukumi.
Even if Yoder didn’t apply, Smith’s residual rule, as
increasingly clarified by the Court beginning in
Lukumi, proves a First Amendment violation. That is
because the ban on notice and opt-outs is neither generally applicable nor neutral.
Compl. at 10, Citizens for a Responsible Curriculum v. Montgomery Cnty. Pub. Schs., No. 8:05-cv-1194 (D. Md. May 3, 2005),
https://perma.cc/68QW-MXLE.
15
Justin Sherman & Taylor Mooney, “Porn literacy” class picks
up where standard sex ed leaves off, CBS News, Nov. 17, 2019,
https://perma.cc/ZTR6-G6LC.
16
Brown v. Hot, Sexy and Safer Prods., Inc., 68 F.3d 525, 529
(1st Cir. 1995) (mandatory assembly where instructor “had a
male minor lick an oversized condom with her” and “encouraged
a male minor to display his ‘orgasm face’ with her for the camera”).
17
36
1. A government restriction burdening religion is
not “generally applicable” when it includes categorical
exceptions that treat religious requests for accommodation differently than “comparable” secular requests.
Kennedy, 597 U.S. at 526-527, 543-544. The existence
of a “formal mechanism for granting exceptions” also
“renders a policy not generally applicable.” Fulton v.
City of Philadelphia, 593 U.S. 522, 537 (2021). Here,
the Board’s policy trips both wires—each triggering
strict scrutiny.
Categorical exceptions. Strict scrutiny applies
whenever the government treats “any comparable secular activity more favorably than religious exercise.”
Tandon v. Newsom, 593 U.S. 61, 62 (2021). Comparability turns not on the facial similarity between one
activity and another, but rather, on how each activity
impacts the government’s underlying “interest that
justifies the regulation at issue.” Ibid. This ensures
that courts do not miss disparate treatment by focusing on the government’s own, possibly self-serving,
“categorizations.” Roman Catholic Diocese of Brooklyn
v. Cuomo, 592 U.S. 14, 17 (2020).
Here, the Board relies on superficial categories to
deny opt-outs to preschoolers while permitting optouts for children in junior high and high school. It classifies the storybooks as “English Language Arts” curriculum (no opt-outs) while classifying discussion of
sexuality in later grades as health class (opt-outs permitted). J.A.73-75. The Court rejects such strategic
categorizing. See, e.g., Tandon, 593 U.S. at 63-64.
Even on their own terms, the Board’s categories are
gossamer-thin. That is because both sets of lessons
were created to further the same “LGBTQ-Inclusive”
interest. Pet.App.234a. The Board concedes that the
37
storybook curriculum was adopted pursuant to Maryland’s 2019 “Equity Regulation,” J.A.2, which seeks to
ensure “educational equity” around “[g]ender identity”
and “[s]exual orientation.” Md. Code Regs.
§§ 13A.01.06.01(B), 13A.01.06.03(B)(2), (5). That same
regulation also spurred “[i]nclusiv[ity]” updates to the
“Family Life and Human Sexuality” unit of the statewide health curriculum. J.A.59-61, J.A.62; see also
J.A.65 (“updated” to “implement the [2019 equity] regulation”). Thus, beyond what is taught through the
storybooks, “Gender identity and expression” is also
taught during health class beginning in “Prekindergarten” through high school, along with “Sexual orientation and identity” beginning in “Grade 4” through
high school. J.A.68-72, 80.
Though justified by the same interest as the storybook lessons, the Board admits that when inclusivity
instruction is presented in health class, “students are
permitted to opt out for any reason.” BIO.22; see also
J.A.3; Pet.App.662a. But “families may not choose to
opt out of engaging with” and cannot even be “inform[ed] * * * when [the] inclusive books are read.”
Pet.App.662a. The Board’s own principals seized on
this precise Tandon problem, noting that, “[f]or example, family life isn’t taught until fifth grade, but a second grade book uses terminology such as cisgender or
transgender.” Pet.App.618a.
“Only by adjusting the dials just right * * * can
you engineer” such an absurd conclusion. Masterpiece
Cakeshop, Ltd. v. Colorado C.R. Comm’n, 584 U.S. 617
(2018) (Gorsuch, J., concurring). And “[i]t is no answer
that [the government] treats some comparable secular
[opt-out requests] as poorly as or even less favorably
than the religious [opt-outs] at issue.” Tandon, 593
38
U.S. at 62. Allowing all secular opt-outs (from the
health curriculum) while banning all religious optouts (from the storybooks) shows that the government’s underlying interest (in “LGBTQ-inclus[ivity]”)
is not generally applicable.
Discretionary exceptions. The Board’s patchwork scheme is also rife with—and the result of—the
Board’s “sole discretion.” Fulton, 593 U.S. at 535. Under Fulton, strict scrutiny is triggered when the government has “a mechanism for individualized exemptions,” because it “‘invite[s]’ the government to decide
which reasons for not complying with the policy are
worthy of solicitude.” Id. at 533, 535, 537 (quoting Employment Div. v. Smith, 494 U.S. 872, 884 (1990)). And
such discretion means that burdens imposed by the
government are the opposite of the “incidental” burdens Smith envisioned. 494 U.S. at 878.
The Board’s shifting policies are shot through with
discretion. Consider first the history of the Board’s actions. For almost the entire 2022-2023 school year, notice of storybook instruction was provided and opt-outs
were permitted. Pet.App.185a-187a, 497a-498a, 533a534a, 540a, 544a-545a. These opt-outs themselves
were granted on a discretionary basis. Pet.App.220a221a (“When possible, schools should try”; parents and
students “have the right to ask”; “it may be feasible to
accommodate”). The Board publicly reiterated on
March 22, 2023, that “[i]f a parent chooses to opt out,
a teacher can find a substitute text for that student
that * * * aligns with curriculum.” Pet.App.184a,
662a.
But overnight, and without explanation, the Board
posted on its webpage that it was withdrawing notice
and opt-outs—for the storybook instruction alone.
39
Pet.App.185a, 662a. This discretion-laden ad hocery
triggers strict scrutiny. Fulton, 593 U.S. at 537-538.
Discretion runs through the Board’s Religious Diversity Guidelines as well. Under the 2022-2023
Guidelines, the Board claimed discretion to deny accommodations if the requests became “too frequent” or
“too burdensome.” Pet.App.221a. With respect to the
storybook discussions, on March 23, 2023, the Board
withdrew notice and opt-outs wholesale in a purported
exercise of that discretion, Pet.App.605a-608a, 662a,
but retained discretion to change course or adopt a
more targeted approach, Pet.App.221a. The Board exercised that retained discretion immediately, choosing
to continue opt-outs for the remainder of the school
year if “schools already had granted accommodation
requests.” Pet.App.608a. In general applicability
terms, that created another “mechanism for individualized exemptions,” Fulton, 593 U.S. at 533, this time
freezing the clock for select schools until “after the
2022-2023 school year ended.” Pet.App.608a. If oscillating grace periods aren’t discretionary, nothing is.
This wasn’t the end of the Board’s discretionary
tinkering. Months later and in response to this lawsuit, the Board formally revised the Guidelines to
state that the Board will no longer “accommodate requests for exemptions from required curricular instruction or the use of curricular instructional materials based on religious, and/or other, objections.”
Pet.App.672a. But the new Guidelines still include an
exception, providing that students “may” opt-out for
“noncurricular activities” or “free-time events” that
“conflict with a family’s religious, and/or other, practices.” Pet.App.672a. And under both the prior and
current iterations of the Guidelines, the Board retains
40
discretion to excuse students “who do not want to participate” in instruction about religious holidays presented “in a factual manner” or holiday activities
(“[e]ven birthdays”) that “may be viewed by others as
having religious overtones.” Pet.App.222a-223a, 673a674a. The Board’s mid-litigation withdrawal of two of
the storybooks from the curriculum over “concerns
about the content” further demonstrates the Board’s
ongoing discretion over when and how it can violate
Petitioners’ religious direction of their children. Supra
11 n.10. The haphazard quality of the Board’s linedrawing is a tell: reserved discretion “invite[s]” the
Board “to decide which reasons” for opting out “are
worthy of solicitude.” Fulton, 593 U.S. at 537. That
alone “renders [the] policy not generally applicable.”
Ibid.
2. The removal of notice and opt-outs is also not
neutral. “Government fails to act neutrally when it
proceeds in a manner intolerant of religious beliefs or
restricts practices because of their religious nature.”
Fulton, 593 U.S. at 533. Doing so is a de jure burden
on Free Exercise that requires the government action
to be set aside without any consideration of the government’s interest. Masterpiece, 584 U.S. at 638-639.
There are “many ways of demonstrating that the
object or purpose” of government action is “the suppression of religion or religious conduct.” Church of
Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.
520, 533 (1993). One is to look at the text of the government’s law, regulation, or policy. Ibid. But “[f]acial
neutrality is not determinative.” Id. at 534. The Free
Exercise Clause also prohibits “masked” discrimination. Ibid. Masked discrimination can be shown
41
through “the effect,” “design,” and “net result” of a government policy. Id. at 535-536.
Alternatively, “the historical background of the decision under challenge, the specific series of events
leading to the enactment or official policy in question,
and the legislative or administrative history, including contemporaneous statements made by members”
can also evidence discriminatory object or purpose.
Masterpiece, 584 U.S. at 639. “[O]fficial expressions of
hostility to religion,” especially when “not disavowed”
by the decisionmaker “at any point in the proceedings,” are also “inconsistent with what the Free Exercise Clause requires.” Ibid.
Here, by allowing notice and opt-outs, then—after
parents raised religious objections—withdrawing
them for storybook instruction only, the Board unlawfully “target[ed] religious conduct for distinctive treatment” in at least two ways. Lukumi, 508 U.S. at 534.
First, “the effect,” “design,” and “net result” of the
Board’s rescission evinces a religiously discriminatory
object. The Board has long granted parental opt-outs
from a wide variety of school activities, including those
involving books, band, and Halloween. Pet.App.221a223a. Per Maryland law, this has also included optouts from “instruction related to family life and human
sexuality
objectives.”
Md.
Code
Regs.
§ 13A.04.18.01(D)(2)(e)(i); Stephanie Ramirez, MCPS
revises policy on LGBTQ-friendly books, Fox 5 DC,
Mar. 24, 2023, https://perma.cc/8L5G-XQ9X. Yet after
receiving religious opt-out requests, the Board decided
overnight to withdraw notice and opt-outs in one—and
only one—area: the religiously objectionable storybook
lessons. The obvious “burden” of the Board’s decision
fell predominately on religious families. Lukumi, 508
42
U.S. at 535-536. Indeed, the withdrawal of notice and
opt-outs required the Board to depart from its Religious Diversity Guidelines—and resulted in hundreds
of people, “largely * * * Muslim and Ethiopian Orthodox parents,” attending Board meetings in protest. Asbury & Shepherd, Hundreds of Maryland parents protest, https://perma.cc/MJ2Q-BXTW.
Effectively, the Board designed a regime where
there was no notice or opt-outs only for discussions involving these storybooks—an area of curriculum that
it knew was laden with religious import. The obvious
religious significance explains why, after this case
commenced, the Board leveled down its Guidelines to
match the lack of notice and opt-outs for the storybook
lessons. Amending the Guidelines during this case is
only further evidence that the notice and opt-out withdrawal was a “religious gerrymander.” Lukumi, 508
U.S. at 535. This is “not neutral * * * and therefore
trigger[s] strict scrutiny under the Free Exercise
Clause.” Tandon, 593 U.S. at 62.
Second, in justifying the no-opt-out policy, multiple
Board members expressed hostility to religion and the
viewpoints of dissenting parents and students. See
Masterpiece, 584 U.S. at 639. Board member Harris
accused one student supporting opt-outs of “parroting”
his parents’ “dogma,” Pet.App.106a, and compared a
group of mostly Muslim and Ethiopian Orthodox parents to “white supremacists” and “xenophobes.”
Pet.App.106a-107a; Em Espey, Parents, students, doctors react to MCPS lawsuit targeting LGBTQ+ storybooks, MoCo360, June 2, 2023, https://perma.cc/5GD92YVQ. She also accused the Parents of finding “another reason to hate another person.” Pet.App.187a. A
43
presentation on the storybook lessons echoed these remarks, accusing parents of promoting a “dehumanizing form of erasure.” Pet.App.187a, 514a. Another
Board member added that, “[y]es, ignorance and hate
does exist in our community.” Pet.App.184a.
In over a year-and-a-half of litigation, no Board
members have disavowed these statements, confirming that the Board did not provide “neutral and respectful consideration.” Masterpiece, 584 U.S. at 634.
In the face of such government hostility, a policy must
be “‘set aside’ * * * without further inquiry”—that is,
without strict scrutiny. Kennedy, 597 U.S. at 525 n.1
(quoting Masterpiece, 584 U.S. at 639).
3. The Fourth Circuit never reached Lukumi’s
neutrality and general applicability standards, concluding that coerced instruction imposed no burden
until Petitioners were actually “compel[led] * * * to
change their religious beliefs,” their “conduct,” or
“what they teach their own children.” Pet.App.34a.
The Board similarly argues that “this Court’s cases”
require “coercion to change or act contrary to one’s religious beliefs.” BIO.23. These arguments are wrong
for at least two reasons.
First, the Board has burdened Petitioners’ free exercise under “the ordinary meaning” of the Free Exercise Clause. Fulton, 593 U.S. at 567 (Alito, J., concurring in judgment). The Board’s actions “prohibit[ ]”
their religious exercise by “forbidding or hindering”
their religious practice of directing the education of
their children on religiously sensitive subjects concerning gender and sexuality. Ibid.; see also Kennedy,
597 U.S. at 525 (assessing burden in a like manner).
Inhibiting this “traditional interest of parents with respect to the religious upbringing of their children” is
44
sufficient to trigger both the “substantial interference”
analysis under Yoder and principles of neutrality and
general applicability under Lukumi. Yoder, 406 U.S.
at 214; Kennedy, 597 U.S. at 525.
Second, in cases from Sherbert to Carson, the Court
has long rejected the Fourth Circuit’s standard of “actual coercion” to change one’s beliefs. In Sherbert, for
example, the plaintiff was denied state unemployment
for failure to “accept available suitable work” after she
was “discharged” for not being available to “work on
Saturday”—her sabbath. Sherbert v. Verner, 374 U.S.
398, 399-401, 399 n.2 (1963). The Court held that being “force[d] * * * to choose” between benefits and her
faith was a “substantial infringement” of her “First
Amendment right.” Id. at 404, 406. It was sufficient
that the condition on benefits “inevitably deterred or
discouraged the exercise of First Amendment rights.”
Id. at 405.
Similarly, in Trinity Lutheran, the state had
barred a religious school from participating in a playground refurbishment program. Trinity Lutheran
Church of Columbia, Inc. v. Comer, 582 U.S. 449, 454456 (2017). The state argued that “declining to extend”
a subsidy did not “burden” the church’s religious exercise, because it did “not prohibit the Church from engaging in any religious conduct or otherwise exercising
its religious rights.” Id. at 462-463. But the Court rejected that argument, concluding it was “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.” Id. at 463. “Where
the state conditions receipt of an important benefit
upon conduct proscribed by a religious faith * * * a
45
burden upon religion exists.” Thomas v. Review Bd. of
Ind. Emp. Sec. Div., 450 U.S. 707, 717-718 (1981).
Public education cannot be described as anything
less than an “important” public benefit. Pet.App.139a
(“Certainly, public education is a valuable public benefit.”). Indeed, the Maryland constitution entitles Petitioners to “Free Public Schools.” Md. Const. Art. VIII
§ 1. “In these days, it is doubtful that any child may
reasonably be expected to succeed in life if he is denied
the opportunity of an education.” Brown v. Board of
Educ., 347 U.S. 483, 493 (1954). Yet Petitioners must
either deny their children that opportunity (at the cost
of private schooling, homeschooling, or criminal penalties and fines) or subject them to compelled participation in instruction that violates their religious beliefs.
Because this “inevitably deters or discourages the exercise of First Amendment rights,” Espinoza, 591 U.S.
at 478, that is a religious burden sufficient to trigger
principles of neutrality and general applicability.
The Board still contends there is no burden because
Petitioners remain “free to impart their religion at
home.” Resp. C.A. Br. 27. But Barnette rejected this
argument over 80 years ago in reversing Gobitis. Gobitis had upheld children of Jehovah’s Witnesses being
forced to salute the American flag against their parents’ religious objections. Minersville Sch. Dist. v. Gobitis, 310 U.S. 586, 591-592 (1940). The Court rested
its holding on judicial deference to public schools: “the
court-room is not the arena for debating issues of educational policy.” Id. at 598. As such, the Court concluded that the Free Exercise Clause was not offended
by forced participation of students against their parents’ religious beliefs—so long as the parents retained
the ability “to counteract by their own persuasiveness
46
the wisdom and rightness of those loyalties which the
state’s educational system [was] seeking to promote.”
Id. at 599.
When reversing Gobitis, the Court refused to let
“modest estimates” of its judicial competence in “such
specialties as public education” be an escape hatch
from enforcing the Free Exercise Clause. Barnette, 319
U.S. at 640. Regardless of what parents could teach at
home, the Court concluded that “if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere
platitudes,” the government—“Boards of education not
excepted”—could not ignore “the limits of the Bill of
Rights.” Id. at 637. Similarly, in Espinoza and Carson,
it did not matter that parents were already paying tuition without the state subsidy. Espinoza, 591 U.S. at
470-471; Carson v. Makin, 596 U.S. 767, 775-776
(2022). And in Kennedy, it “did not matter” that “the
high school football coach could have prayed at home.”
Pet.App.64a. Nor do Petitioners’ First Amendment
rights yield at the school-bus or carpool drop-off.
*
*
*
Under any common-sense understanding of the
term, a school “burdens” parents’ religious beliefs
when it forces their children to undergo classroom instruction about gender and sexuality at odds with
their religious convictions. Especially when that instruction is specifically designed to “[d]isrupt” the
child’s beliefs, the burden is obvious and must undergo
strict scrutiny.
47
II. The Board’s actions fail strict scrutiny.
The Board cannot possibly satisfy strict scrutiny.
1. In the courts below, the Board claimed three potential compelling interests: avoiding “significant disruptions” in the classroom; ensuring a “safe and conducive” learning environment free from “social stigma
and isolation”; and complying with “state and federal
nondiscrimination laws.” Pet.App.607a-608a. The
Court “cannot accept such * * * sweeping claim[s].”
Yoder, 406 U.S. at 221. Rather, “the First Amendment
demands a more precise analysis.” Fulton, 593 U.S. at
541. The Board must show “the asserted harm of
granting specific exemptions to particular religious
claimants.” Ibid.
Further, to justify its “relatively recent” withdrawal of all notice and opt-outs, the Board must explain how the withdrawal serves a compelling interest
historically sufficient to justify the resulting interference with the “enduring American tradition” of parental direction in religious upbringing. Yoder, 406 U.S.
at 226-227, 232. Here, that tradition is manifest in the
longstanding, nationwide consensus allowing parents
to opt their children out of instruction on human sexuality and gender.
The Board’s efforts to advance compelling interests
“[d]espite this long history” are unlikely to succeed.
Ramirez v. Collier, 595 U.S. 411, 428 (2022); see also
id. at 442-443 (Kavanaugh, J., concurring) (“Often, the
Court also examines history and contemporary state
practice to inform the inquiries” into “compelling” interests and “least restrictive” means). In the first
place, the Board’s interests cannot be justified by history or tradition: none are based on “conduct or actions
48
so regulated [that] have invariably posed some substantial threat to public safety, peace or order.” Yoder,
406 U.S. at 230; see also Fulton, 593 U.S. at 555 (Alito,
J., concurring in judgment) (“this description * * * corresponds closely with the understanding
of the scope of the free-exercise right at the time of the
First Amendment’s adoption”). An interest unjustified
by history or tradition is presumptively not compelling. See McDaniel v. Paty, 435 U.S. 618, 628 (1978)
(“Tennessee has failed to demonstrate that its views of
the dangers of clergy participation in the political process have not lost whatever validity they may once
have enjoyed.”). For that reason alone, the Board’s policy flunks strict scrutiny as to all three of its claimed
interests.
But even if a distinct history and tradition upholding the Board’s claimed interests could be identified,
the Board’s own actions make clear that the Board has
not treated them as compelling here. First, with respect to its interest in avoiding disruption, the
Board—which oversees a district of more than 160,000
students—has cited “one instance” at one school of
“dozens of students” seeking opt-outs. Pet.App.607a.
This Court has previously “rejected” the argument
that the risk of “many” requests is itself a reason to
deny a religious accommodation. Holt v. Hobbs, 574
U.S. 352, 368 (2015). Holding otherwise would mean
that the more religiously offensive the government
conduct, the more courts must defer to the offending
government—at the expense of First Amendment
rights. The Constitution does not endorse such moral
hazard.
Moreover, the Board has not even attempted to
demonstrate a “direct causal link” between allowing
49
religious-based opt-outs and losing control of public
school classrooms. Brown v. Entertainment Merchs.
Ass’n, 564 U.S. 786, 799 (2011); cf. Mahanoy Area Sch.
Dist. v. B.L., 594 U.S. 180, 188 (2021) (“special interest
in regulating speech” arises only if speech “materially
disrupts classwork or involves substantial disorder or
invasion of the rights of others”). And such a compelling interest is unlikely to emerge overnight. Yet here,
that is literally what the Board would have to show:
why notice and religious-based opt-outs were not disruptive through March 22, 2023, but became so on
March 23, 2023, when the Board announced its 180degree policy turn—which, even then, it did not implement until the next school year. Such a showing is particularly difficult given the ability of school districts
nationwide to manage similar opt-outs and the Board
itself having allowed opt-outs from so many other
parts of its programming for so many years. Supra 67. “[W]hen so many [others] offer an accommodation,
a [school district] must, at a minimum, offer persuasive reasons why it believes that it must take a different course, and the [Board] failed to make that showing here.” Holt, 574 U.S. at 369.
Second, the Board also cannot justify a compelling
interest in a “safe and conducive” learning environment free from “stigma and isolation.” Pet.App.607a608a. While such a goal may be “commendable” on the
surface, it is insufficiently “measurable” to “be subjected to meaningful judicial review,” Students for Fair
Admissions, Inc. v. President & Fellows of Harvard
College, 600 U.S. 181, 214 (2023). When it comes to reducing stigma by “learning about gender and sexuality
identity diversity,” Pet.App.638a, “[h]ow is a court to
know whether [students] have been adequately” instructed? Students for Fair Admissions, 600 U.S. at
50
214. And “how is a court to know when” a stigma-free
environment has “been reached?” Ibid. “There is no
particular point” at which a court could conclude that
such an “elusive” goal has been met. Id. at 214-215.
Furthermore, the Board “fail[s] to articulate a
meaningful connection between the means [it] employ[s] and the goal[ ] [it] pursue[s].” Students for Fair
Admissions, 600 U.S. at 215. It cannot just “make a
predictive judgment that such a link exists.” Brown,
564 U.S. at 799. Indeed, as the Board’s own elementary school principals have already observed, the mandated instruction is itself “shaming” to students with
contrary views and “dismissive of [their] religious beliefs.” Pet.App.619a-620a. This poses no less risk of
“social stigma” to these students than to those “who
believe that the books represent them.” Pet.App.607a608a. Thus, even assuming a causal benefit for some
students, it comes at a cost for others. “[A] law cannot
be regarded as protecting an interest ‘of the highest
order’ * * * when it leaves appreciable damage to
that supposedly vital interest unprohibited.” Lukumi,
508 U.S. at 547. And the First Amendment warns
against “[s]truggles to coerce uniformity of sentiment
in support of some end thought essential to [the] time.”
Barnette, 319 U.S. at 640. “As governmental pressure
toward unity becomes greater, so strife becomes more
bitter as to whose unity it shall be.” Id. at 641.
Third, the Board has not identified any state or federal laws the Board might violate by honoring religious opt-outs. The very idea runs headlong into “preserving the promise of the free exercise of religion enshrined in our Constitution.” Bostock v. Clayton
County, 590 U.S. 644, 681 (2020). And although an interest in “equal treatment” may well be “weighty,” the
51
Court has never deemed it sufficient to deny individuals “an exception for [their] religious exercise.” Fulton,
593 U.S. at 542. To the contrary, “the First Amendment does not tolerate” forced uniformity “about a
question of political and religious significance.” 303
Creative LLC v. Elenis, 600 U.S. 570, 596 (2023) (citing
Barnette, 319 U.S. at 634). That First Amendment rule
protects the full spectrum of viewpoints—from the
“sensible and well intentioned” to the “deeply ‘misguided.’” Id. at 586. That protection extends to Petitioners here. Directing their children according to
their “decent and honorable” religious views about human sexuality and gender identity is exactly what
they are doing. Obergefell, 576 U.S. at 672.
2. The Board also fails the least restrictive means
analysis. “[S]o long as the government can achieve its
interests in a manner that does not burden religion, it
must do so.” Fulton, 593 U.S. at 541. But here, the
Board “has failed to offer any showing that it has even
considered less restrictive measures than those implemented here.” Fellowship of Christian Athletes v. San
Jose Unified Sch. Dist. Bd. of Educ., 82 F.4th 664, 694
(9th Cir. 2023) (en banc) (citing Thomas, 450 U.S. at
718). That is reason alone for failing the least restrictive means test. Indeed, as mentioned, the Board has
never explained its very public flip-flop. Why were optouts from the storybook discussions perfectly fine on
March 22, 2023, but “disruptive” the very next day?
Such a volte-face provides no “basis for deference.”
Ramirez, 595 U.S. at 429.
It takes no special creativity to see that less restrictive means exist. The Board could, for example, leave
reading and discussing the storybooks up to the students. The Board could ask that the books be left on
52
shelves, rather than require teachers to read and discuss them in class. Or, like in Maryland’s Carroll
County, the Board could teach the importance of
“treat[ing] all people with dignity and respect” without
delving into “all gender identities and expressions.”
Approval of Family Life Advisory Committee Opt-Out
Recommendations for Grades PreK through 5 Family
Life Unit at 3-1, Carroll County Public Schools (Jan.
11, 2023), https://perma.cc/A7BB-R35Y.
The Board simply cannot “demonstrate” why a total denial of religious-based opt-outs is the least restrictive means of protecting its alleged interests—especially considering nationwide practice to the contrary. See Sherbert, 374 U.S. at 407 & n.7 (discussing
the workability of granting benefits in analogous situations nationwide); Ramirez, 595 U.S. at 444 (Kavanaugh, J., concurring) (“experience matters”). Yet
the Board has never even tried to make this “minimum” showing. Holt, 574 U.S. at 369. That is, the
Board has never demonstrated why it “must take a different course” than 47 states allowing opt-outs for sexuality instruction. Ibid.
In sum, the Board’s strict scrutiny defense reduces
to the “classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make
one for everybody, so no exceptions.” Gonzales v. O
Centro Espírita Beneficente União do Vegetal, 546 U.S.
418, 436 (2006). But this Court has never accepted
that argument in any of its Free Exercise cases. This
should not be the first.
*
53
*
*
“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.” Yoder, 406 U.S.
at 233. At the core of that duty are Petitioners’ religious beliefs about human sexuality and gender. The
Board wants to disrupt Petitioners’ efforts to pass
those beliefs on to their young children. But the Free
Exercise Clause protects Petitioners’ right and high
duty. Breaking the bond of parent and child should
never be the price of public education.
CONCLUSION
The decision below should be reversed.
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@becketfund.org
Counsel for Petitioners
MARCH 2025
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.