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

No. 24-297

In the

Supreme Court of the United States

________________

TAMER MAHMOUD, ET AL.,

v.

Petitioners,

THOMAS W. TAYLOR, ET AL.,

Respondent.

________________

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

________________

Brief Amici Curiae of Maryland Family Institute,

Hawaii Family Forum, Alabama Policy Institute,

Massachusetts Family Institute, Alaska Family

Council, Center for Christian Virtue (Ohio),

Nebraska Family Alliance, New York

Families Foundation, The Family

Foundation (Virginia), The Family Foundation

(Kentucky),Kansas Family Voice, and Louisiana

Family Forum, in Support of Petitioners

________________

HELEN M. ALVARÉ

Counsel of Record

ANTONIN SCALIA LAW SCHOOL

GEORGE MASON UNIVERSITY

3301 Fairfax Drive

Arlington, VA 22201

301-276-1492

halvare@gmu.edu

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

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

INTEREST OF AMICI CURIAE ................................ 1

SUMMARY OF THE ARGUMENT ............................ 1

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

I.
The Pride Storybooks Program Makes

Normative

Claims

About

Sexual

Relations and Identity That Conflict

With Religious Tenets and Affect

Children's Health and Family Lives. .................. 2

A.
The Prides Storybooks Program................... 2

B.
The

Program

Contradicts

Fundamental Religious Teachings. .............. 5

C.
The Program Concerns Children's

Health And Family Lives Too. ..................... 8

II.
Parents'

Constitutional

Rights

Respecting Their Children's Religious,

Educational, and Familial Well-Being,

Are Superior to the State's Interests in

the Pride Storybook Program. ........................... 12

A.
Existing Supreme Court Precedents

Confirm Parents’ Prior Authority. ............. 13

III.
State Family Law Reveals A History and

Tradition of Recognizing Parents'

Primary Rights Respecting Children's

Religious Education. .......................................... 22

CONCLUSION .......................................................... 25

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) .................................................8

Employment Div. v. Smith,

494 U.S. 872 (1990) ...............................................21

Meyer v. Nebraska,

262 U.S. 390 (1923) ...................................14, 17, 18

Moore v. City of East Cleveland,

431 U.S. 494 (1977) ...............................................20

Parham v. J.R.,

442 U.S. 584 (1979) .........................................15, 16

Pierce v. Society of Sisters,

268 U.S. 510 (1925) ...................................14, 18, 19

Prince v. Massachusetts,

321 U.S. 158 (1944) ...................................15, 18, 20

Santosky v. Kramer,

455 U.S. 745 (1982) ...............................................16

Tatel v. Mt. Lebanon Sch. Dist.,

No. 22-837, 2024 WL 4362459 (W.D. Pa. Sept. 30,

2024) ........................................................................9

Troxel v. Granville,

530 U.S. 57 (2000) ...........................................15, 16

iii

Washington v. Glucksberg,

521 U.S. 702 (1997) ...............................................16

West Virginia Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) ...............................................19

Wisconsin v. Yoder,

406 U.S. 707 (1981) .................14, 15, 17, 18, 19, 21

Other Authorities

American Psychological Association, Task Force on

the Sexualization of Girls, Report of the APA Task

Force on the Sexualization of Girls, (2007),

http://www.apa.org/pi/women/programs/girls/reportfull.pdf ........................................................................9

Catechism of the Catholic Church........................... 5-6

Dicastery for the Doctrine of the Faith, Dignitas Infinita, On Human Dignity, April 2, 2024 .................6

Ephesians ......................................................................7

Genesis ......................................................................5, 6

Isaiah ............................................................................6

Jeremiah .......................................................................6

John .......................................................................... 6-7

Leviticus ........................................................................5

iv

Matthew ....................................................................5, 6

The Mayo Clinic, Masculinizing Surgery,

https://www.mayoclinic.org/tests-procedures/masculinizing-surgery/about/pac-20385105 (last visited

Feb. 24, 2025) ...........................................................12

My Jewish Learning, History of Jewish Schooling in

America, https://www.myjewishlearning.com/article/jewish-schooling/ (last visited Mar. 6, 2025).....23

Pew Research Center, Report: Leaving Catholicism,

April 27, 2009 (Revised February 2011),

https://www.pewresearch.org/religion/2009/04/27/faith-in-flux3/ .....................................8

Retraction Watch, Study that says hate cuts 12 years

off gay lives failed to replicate (Feb. 1, 2018),

https://retractionwatch.com/2018/02/01/study-saidhate-cuts-12-years-off-gay-lives-fails-replicate/ .....10

Romans .........................................................................5

SIECUS, The History of Sex Education ..............10, 25

The William Penn Charter School, About Us,

https://www.penncharter.com (last visited Mar. 6,

2025) .........................................................................23

Helen M. Alvaré, Religious Freedom After the Sexual

Revolution: A Catholic Guide (Catholic University

of America Press 2022) ..............................................7

v

George L. Blum, Religion as a Factor in Child Custody Cases, 124 A.L.R.5th 203 (2004) ........................24

Hilary Cass, Independent review of gender identity

services for children and young people: Final report

(2024), https://cass.independent-review.uk/home/publications/final-report/ .................11

Cochran SD, Mays VM, Sullivan JG. Prevalence of

Mental Disorders, Psychological Distress, and Mental Health Services Use Among Lesbian, Gay, and

Bisexual Adults in the United States. J Consult Clin

Psychol. (Feb., 2003) ;71(1):53-61. doi:

10.1037//0022-006x.71.1.53 .....................................11

Sarah Cunningham, The First 35 Years: A History of

SIECUS, (1999), https://siecus.org/wp-content/uploads/2023/12/2021-SIECUS-History-of-Sex-Ed_Final.pdf. .....................................................................10

Mark L. Hatzenbuehler, et al., RETRACTED: Structural stigma and all-cause mortality in sexual minority populations, 103 Soc. Sci. & Med. 33-41

(2014) ........................................................................10

Richard M. Jacobs OSA, U.S. Catholic Schools and

the Religious Who Served in Them: Contributions in

the 18th and 19th Centuries, 1 Catholic Education:

A Journal of Inquiry and Practice 364 (1998) ........23

Kohnepoushi, P., Nikouei, M., Cheraghi, M. et

al. Prevalence of suicidal thoughts and attempts in

the transgender population of the world: a system-

vi

atic review and meta-analysis. Ann. Gen. Psychiatry 22 (2023), https://doi.org/10.1186/s12991-02300460-3 .....................................................................11

Robert J. McCarty and John M. Vitek, Going, Going,

Gone: The Dynamics of Disaffiliation in Young Catholics (St. Mary’s Press Sept. 2017),

https://www.smp.org/dynamicmedia/files/51e8a5af231c9f2672ad751acb1e1827/5926_S

ampler.pdf?srsltid=AfmBOoqa-NwdolMZV9OYzJOO21xT5Z5EhfPk9afSq429w0I_g4KCTx3 .8

Jeffrey Moran, Teaching Sex: The Shaping of Adolescence in the 20th Century (Harvard University Press

2000) ......................................................................24, 25

Mutiat T. Onigbanjo and Susan Feigelman, Middle

Childhood, Chapter 26, in Robert A. Kliegman, et.

al, eds., Nelson Textbook of Pediatrics (22d ed.

2025) ....................................................................... 8-9

Pope Paul VI, Declaration on Christian Education,

Gravissimum Educationis ¶3 (1965) ...........................7

Laura Meckler Peter, et al., Home schooling today is

less religious and more diverse, poll finds, The Washington Post, Sept. 28, 2023, https://www.washingtonpost.com/education/2023/09/26/home-schooling-vspublic-school-poll/ .......................................................23

Katherine Schaeffer, U.S. public, private and charter

schools in 5 charts, Pew Research Center, June 6,

2024, https://www.pewresearch.org/shortreads/2024/06/06/us-public-private-and-charter-

vii

schools-in-5-charts/#:~:text=Private%20schools%20are%20known%20for,of%20all%

20private%20school%20enrollment ........................23

Kevin M. Smith, Parental Rights and the Child's Best

Interests: Resolving Conflicts over Religion, Education and Health Care Choices in Custody Cases, 91

Kan. B.J. 20 (2022) .....................................................24

Nicholas Wolfram Smith, Study shows young adults

leaving church start down that path at age 13, National Catholic Reporter (Dec. 11, 2018),

https://www.ncronline.org/news/study-shows-youngadults-leaving-church-start-down-path-age13#:~:text=Although%20their%20work%20focused%20on,%2C%20dignity%2C%20justice%20and%20community .......................................8

Angela Watson, et al., The fall and rise of home education, in Homeschooling in the 21st Century ch. 1

(Routledge 2018) ......................................................23

1

INTERESTS OF AMICI CURIAE

All Amici Curiae, the Maryland Family Institute,

the Hawaii Family Forum, the Alabama Policy Institute, the Massachusetts Family Institute, the Alaska

Family Council, the Center for Christian Virtue

(Ohio), the Nebraska Family Alliance, the New York

Families Foundation, the Family Foundation (Virginia), the Family Foundation (Kentucky), the Kansas

Family Voice, and the Louisiana Family Forum, are

state-based, nonprofit organizations seeking to protect

religious freedom and parental rights, and to enshrine

support for religious freedom and the family in law

and policy.1

SUMMARY OF ARGUMENT

At some point in their lives, children will be introduced by someone to matters concerning human sexuality, a subject inextricably intertwined with matters

overlapping their religion, health, and family lives.

This Court has repeatedly held that as a matter of federal constitutional law, when there is a contest between parents and the state about who has primary

authority over these aspects of children’s upbringing,

parents’ authority comes first.

Certainly, the state has important interests in education – most particularly in fostering students’ later

1 This brief was prepared and funded entirely by amici and

their counsel. No party and no person other than the amici, its

members, and counsel, made contributions to this brief. Counsel

for all parties have consented to the filing of this brief.

2

self-sufficiency and their ability to participate in a pluralistic, democratic society. But these do not at all require normatively instructing children about the particular sexual activities or identity covered in the

Pride Storybooks’ material disputed in this case.

These matters are, instead, plainly within parents’

zone of prior authority as recognized by this Court in

cases stretching back 100 years - authority that is at

its zenith when parents are asserting the right to direct their children’s religious education. The history

and tradition of states’ family laws concerning parents’ authority over their children’s religious education also robustly support this conclusion. Consequently, Montgomery County owes parents, at the

very least, notice of upcoming lessons involving the

Pride Storybooks, and an opportunity to opt-out.

ARGUMENT

I.
The Pride Storybooks Program Makes Normative Claims About Sexual Relations and

Identity That Conflict With Religious Tenets

and Affect Children’s Health And Family

Lives.

A.
The Pride Storybooks Program

The books and teachers’ guides constituting the

Pride Storybooks Program (“the Program”) instruct

children normatively about sexual orientation and

transgender scientific claims. They also effect the

state’s choice about the age at which to introduce children to various sexual subjects. They are not, as Montgomery County (“the County”) claims, simply

“provid[ing] an educational experience that represents

the wide range of families that call Montgomery

3

County home,” or a guide to “embrace[ing] all unique

and individual differences”2 or to “reflect the diversity

of the global community,”3 or simply to support “a student's ability to empathize, connect, and collaborate

with diverse peers.”4

The materials the County uses rather depict as

kind and loving and authoritative those persons who

affirm a child’s thinking that sex is just a matter of

subjective decision-making, or those who support

LGBTQ sexual expression. They depict no one who

disagrees. There is a kind uncle who affirms a child in

the process of deciding his own pronouns,5 and an affectionate mother who assures her sons that sexual

identity is a subjective and irrational determination.

She tells her children that a person’s belief about his

sex doesn’t have to “make sense.”6 The materials feature a teacher who, after hearing a biological girl identify as a boy, says that “today, you’re my teacher!”7 Regarding the question whether sex is related to human

biology, County teachers are instructed to tell children

that parents and doctors only “make a guess about our

2 Br. of Defs.-Appellees, Mahmoud v. McKnight, 102 F.4th 191

(4th Cir. 2024) (No. 23-1890), 2023 WL 7219946, at *4.

3 Appellants’ App. 496-497.

4 Id. at 539 ¶22.

5 Appellants’ App. 423.

6 Compl., at 4, Mahmoud v. McKnight, 688 F. Supp. 3d 265 (D.

Md. 2023) (No. 23-1380).

7 Id. at 21.

4

gender” at birth, but that “sometimes they’re wrong”

because “gender comes from inside.”8

The county also encourages children as young as

four to see people in sexual terms, when teachers read

a book about a parade involving persons who identity

as LGBTQ, and instruct the children to search for vocabulary including an “intersex [flag],” a “[drag]

queen,” “leather,” a “lip ring,” “underwear,” and an image of “Marsha P. Johnson,” a self-described LGBTQ

activist and sex worker.9 The material also sexualizes

fourth graders by reading a book and prompting discussion concerning a same-sex romantic attraction between very young children that describes a child

“blushing hot” as she thinks of her classmate.10

The County’s Program is clearly intended to introduce even very young children to various sexual attractions and the possibility of being a different sex,

even long before parents wish to introduce children to

human sexuality. It is also plainly designed to influence children’s normative beliefs about all these matters. Were the County really interested in familiarizing children with “the wide range of families that call

Montgomery County home,” “all unique and individual differences,” between people, or the “ability to empathize, connect, and collaborate with diverse peers,”

8 Id. at 5.

9 Compl. at 2, Mahmoud, supra (No. 23-1380).

10 Id. at 3.

5

it would use materials that were not completely emotionally and substantively weighted in one direction.

It would include, inter alia, reading units treating the

beliefs and practices of religious families on these

same matters. Instead, it is an inescapable conclusion

that the County intends to influence children to affirm

particular sexual practices and beliefs.

B.
The Program Contradicts Fundamental

Religious Teachings

Sexual attraction and identity are matters of deep

religious significance for many faiths, even as they are

also scientific and social matters. There is no reasonable dispute about this. The example of Christianity,

with its roots in Judaism, will suffice. Here, sexual attraction and identity touch core beliefs about God’s

creative authority and his loving and overarching plan

for human lives and human relations. The book of

Genesis, for example, states plainly that “God created

mankind in his image; in the image of God he created

them; male and female he created them.” Genesis 1:27.

Jesus declares that “a man shall leave his father and

mother and be joined to his wife, and the two shall become one flesh.” Matthew 19:5. And both the Old Testament and the New Testament speak directly in opposition to same-sex relations. Leviticus 18:22; Romans 1:19-27.

These teachings have been part of Christianity

since its beginning, and remain unchanged today. The

current edition of the Catechism of the Catholic

Church counsels both avoiding all “unjust discrimina-

6

tion” against homosexual persons, and showing “respect, compassion, and sensitivity,” while “under no

circumstances” approving of same-sex relations.11 In

2024, Pope Francis directly rejected gender theory,

writing:

[H]uman life in all its dimensions, both physical

and spiritual, is a gift from God. This gift is to

be accepted with gratitude . . .. Desiring a personal self-determination, as gender theory prescribes, apart from this fundamental truth that

human life is a gift, amounts to a concession to

the age-old temptation to make oneself

God . . . .12

It should further be noted that Christian teachings

concerning human sexuality are integral to some of

the deepest questions of faith, for example, regarding

the Trinitarian identity of God, how God loves humanity, and how human beings are to love God and one

another. This traces to the Bible’s teachings that human beings are created in God’s “image and likeness,”

“male and female” and instructed to “be fruitful and

multiply.” Genesis 1:28, thus offering a glimpse of the

three persons of the Trinity who are both separate and

in a relationship of interpenetrating and overflowing

love. Furthermore, both the Old and New Testaments

instruct that God loves humanity as a bridegroom

loves a bride, see, e.g., Isaiah 62:5, Jeremiah 16:9,

Matthew 9:15, 25:6, and that we are to love Him and

11 Catechism of the Catholic Church, ¶¶2357-58.

12 Dicastery for the Doctrine of the Faith, Dignitas Infinita, On

Human Dignity, April 2, 2024, ¶57.

7

one another as He has loved us. John 13:34. St. Paul

writes specifically that marriage between a man and

woman is intended to help illuminate the relationship

between God and his people. Ephesians 5:32. And on

all these matters, Roman Catholic parentsare instructed by the Church’s leading document on education that their roles are “primary and inalienable.”13

In sum, Christians closely link visible traits and

experiences of the human body, including sexual traits

and experiences, to divine realities. To deny these

teachings – and to state instead that human sexual

identities are self-constructed, and that same-sex relations are attractive – is therefore to strike at the architecture of Christianity. To affirm transgender identification is to deny God’s creative power and his bestowing a person’s sex as a gift, made for gifting to others. To affirm same-sex relations is to deny that the

structure and dynamics of love itself –within the Trinity, between human beings, and between the human

person and God – involve differences, oriented toward

fulfillment in unity.14 Unsurprisingly, then, studies of

faith transmission report that significant percentages

of those leaving the Catholic faith say that they are

dissatisfied with Catholic sexual teachings, including

13 Pope Paul VI, Declaration on Christian Education,

Gravissimum Educationis ¶3 ( 1965).

14 Helen M. Alvaré, Religious Freedom After the Sexual

Revolution: A Catholic Guide 199-215 (Catholic University of

America Press 2022).

8

especially on homosexuality.15 While it is not necessary to demonstrate that the state’s actions threaten

the very continued existence of a faith in order to

demonstrate that they burden religious exercise,16 the

state’s actions here could very well endanger some

young children’s religious faith.

C.
The Program Concerns Children’s

Health and Family Lives Too

There are several ways in which the County Program affects children’s health and family lives, which

are matters inextricably tied to children’s religious

formation. First, introducing children to human sexuality at too young an age, according to one of the most

consulted pediatric textbooks in the United States,

Nelson Textbook of Pediatrics, “may be frightening, reinforcing children’s feelings of powerlessness in the

15 Pew Research Center, Report: Leaving Catholicism, April

27, 2009 (Revised February 2011), https://www.pewresearch.org/religion/2009/04/27/faith-in-flux3/; Robert J. McCarty

and John M. Vitek, Going, Going, Gone: The Dynamics of Disaffiliation in Young Catholics (St. Mary’s Press Sept. 2017),

https://www.smp.org/dynamicmedia/files/51e8a5af231c9f2672ad751acb1e1827/5926_Sampler.pdf?srsltid=AfmBOoqa-NwdolMZV9OYzJOO21xT5Z5EhfPk9afSq429w0I_g4KCTx3. Reported in

Nicholas Wolfram Smith, Study shows young adults leaving

church start down that path at age 13, National Catholic Reporter (Dec. 11, 2018), https://www.ncronline.org/news/studyshows-young-adults-leaving-church-start-down-path-age13#:~:text=Although%20their%20work%20focused%20on,%2C%20dignity%2C%20justice%20and%20community.

16 Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 726 (2014).

9

larger world.”17 For girls, in particular – according to

the landmark American Psychological Association

study – early sexualization may provoke lower levels

of self-esteem, and a greater risk of depression.18

Second, it is a matter of common sense that introducing uncertainty into children’s convictions about

their biological sex could cause confusion and distress,

and deeply affect familial and other interpersonal relationships. In the federal district court opinion in

Tatel v. Mt. Lebanon School District, a parent was

pressured to speak with her young daughter after a

teacher introduced without warning the statement

that parents only guess at their children’s gender. “After school . . . Tatel's daughter asked Tatel ‘how do you

know that I am a girl?’ . . . . [And] the following day,

Tatel's daughter was ‘upset’ and brought up that

‘when you change a baby's diaper . . . you know if

they're a boy or a girl.’”19 The mother also reported that

after talking with her daughter: “[S]he was still confused. Because why would her teacher tell her something wrong.”20

17 Mutiat T. Onigbanjo and Susan Feigelman, Middle

Childhood, Chapter 26, in Robert A. Kliegman, et al., eds., Nelson

Textbook of Pediatrics, 167-171, p. 171 (22d ed. 2025).

American Psychological Association, Task Force on the

Sexualization of Girls, Report of the APA Task Force on the

Sexualization

of

Girls,

(2007),

http://www.apa.org/pi/women/programs/girls/report-full.pdf.

18

19 Tatel v. Mt. Lebanon Sch. Dist., No. 22-837, 2024 WL

4362459, at *13 (W.D. Pa. Sept. 30, 2024).

20 Ibid.

10

Third, the material in dispute here obviously concerns sexual choices that importantly concern physical, psychological and emotional health, and family

outcomes as well. Regarding the relationship between

health and sexual choices, perhaps the leading sex-education publisher and proponent in the United States,

the Sexuality Information and Education Council of

the United States (“SIECUS”), clearly teaches: “[S]ex

is a part of total health. . .. It’s part of your total health

and your total personality structure.”21

It should further be noted that there exists important research about health conditions associated

with homosexual or transgender identification. While

the medical literature is undecided as to whether

these conditions are caused by the sexual identity itself or from external social stress,22 it is agreed that

21 SIECUS, The History of Sex Education, 26 (quoting Sarah

Cunningham, The First 35 Years: A History of SIECUS, 4-13,

SIECUS Report, 27(4) (1999)),

https://siecus.org/wpcontent/uploads/2023/12/2021-SIECUS-History-of-SexEd_Final.pdf.

22 A study claiming that minority stress caused a shorter life

expectancy in gay persons was deemed unreliable and not

replicable due to a coding error, Retraction Watch, Study that

says hate cuts 12 years off gay lives failed to replicate, Feb. 1,

2018, https://retractionwatch.com/2018/02/01/study-said-hatecuts-12-years-off-gay-lives-fails-replicate/. The original study:

Mark L. Hatzenbuehler, et al., RETRACTED: Structural stigma

and all-cause mortality in sexual minority populations, 103 Soc.

Sci. & Med. 33-41 (2014).

11

sexual minorities suffer more mood, anxiety, and substance abuse problems, and heightened suicide risk.23

In a widely-hailed review of the literature responding

to the dramatic rise in number of young people claiming transgender identification, the authors reached

two relevant conclusions. First, that the rise is due to

psychological and social as well as biological factors.

And second, that there is no quality research indicating net benefits from medical interventions such as

puberty suppression or cross-sex hormone treatments.24 In short, the County’s efforts to influence children favorably toward transgender identification involve life-altering matters of children’s health and

safety.

The relationship between family outcomes and instruction regarding same-sex relations and identity is

equally clear. For such instruction concerns choices

about future romantic partners and family form, and

whether to chemically or surgically alter one’s body so

as to affect future sexual experience, the possibility for

23 Cochran SD, Mays VM, Sullivan JG. Prevalence of Mental

Disorders, Psychological Distress, and Mental Health Services

Use Among Lesbian, Gay, and Bisexual Adults in the United

States. J Consult Clin Psychol. (Feb., 2003) ;71(1):53-61. doi:

10.1037//0022-006x.71.1.53; Kohnepoushi, P., Nikouei, M.,

Cheraghi, M. et al. Prevalence of suicidal thoughts and attempts

in the transgender population of the world: a systematic review

and meta-analysis. Ann. Gen. Psychiatry 22, 28 (2023),

https://doi.org/10.1186/s12991-023-00460-3.

24 Hilary Cass, Independent review of gender identity services

for children and young people: Final report (2024),

https://cass.independent-review.uk/home/publications/finalreport/.

12

procreation, and the need for ongoing medical intervention to maintain the appearance of the opposite

sex.25

Given religious convictions about how human beings’ experience of their bodily selves as male or female, and their experiences of sexual pleasure and attraction, are the source of irreplaceable understandings of God’s identity and love for us, and our love for

him and one another, the County’s materials teaching

otherwise plainly undermine parents’ authority over

their children’s religious education.

II.
Parents’ Constitutional Rights Respecting

Their Children’s Religious, Educational, and

Familial Well-Being, Are Superior to the

State’s Interest in The Pride Storybook Program.

This Court has variously phrased the strength of

parents’ rights respecting the care, custody and control of their children. But in contests concerning parental authority over children’s upbringing – it has required states at a minimum to give significant deference to parental authority. It has also clearly upheld

parents’ fundamental Free Exercise rights regarding

their children’s religious education. These rights

plainly require states to provide parents prior notice

and an opportunity to opt out of materials concerning

sexual identities and behaviors. Existing Supreme

See, e.g., The Mayo Clinic, Masculinizing Surgery,

https://www.mayoclinic.org/tests-procedures/masculinizingsurgery/about/pac-20385105.

25

13

Court opinions regarding parental authority, as well

as a long history and tradition of state laws prioritizing parents’ authority (infra Part III), support this

constitutional conclusion.

A.
Existing Supreme Court Precedents

Confirm Parents’ Prior Authority

Existing Supreme Court decisions do not speak to

the precise situation here: schools’ refusing to consult

parents about when to introduce their children to sexual materials, and their employing materials designed

to shape children’s opinions in favor of same-sex relations and transgender identities. But taken together,

the array of Supreme Court opinions treating contests

between parental and state authority over children

plainly support recognizing parents’ primary place regarding children’s exposure to sexual materials of the

kind at issue here.

This case does not require the Court to limn the

entire boundary between parental and state authority

where the contents of public schools’ curricula is concerned. The question is rather a narrow one about materials intersecting children’s religion, health, and

family lives. Someone will choose when and how to offer children perspectives on these matters. The question is whether it should be the state or the child’s parents. It is the parents. Such materials fall squarely

within the constellation of matters this Court has repeatedly consigned first to parental authority, and

outside what this Court has repeatedly identified as

the state’s interests in education.

14

But before turning to a description of these matters, there is the preliminary question of the level of

protection the Constitution accords parents’ decisions

regarding their children’s education. A brief review of

this Court’s relevant opinions shows that the state

may never do less than first defer to the parents, and

in the case of religious education, acknowledge parents’ fundamental constitutional rights. The limits to

these parental rights – when the state is preventing

harm to children – have no application here.

In Meyer v. Nebraska, concerning the right to have

children instructed in German as against a legal ban,

the Court recognized parents’ “liberty” to “establish a

home and bring up children.”26 In Pierce v. Society of

Sisters – about parents’ rights to send children to private, including religious, education – the Court spoke

of parental “liberty . . . to direct the upbringing and

education of children.”27 In Wisconsin v. Yoder, vindicating Amish parents’ right to withdraw their children

from school after the eighth grade – this Court referred to parental authority over education as “beyond

debate.”28 It also referred to the “interest of parents in

directing the rearing of their off-spring,”29 and wrote

that the “values of parental direction of the religious

upbringing and education of their children in their

26 Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (emphasis

added).

27 Pierce v. Society of Sisters, 268 U.S. 510, 534 (1925) (empha-

sis added).

28 406 U.S. 205, 232 (1972).

29 Id. at 213 (emphasis added).

15

early and formative years have a high place in our society.”30 But then it immediately referred to “fundamental rights and interests, such as those specifically

protected by the Free Exercise Clause of the First

Amendment, and the traditional interest of parents

with respect to the religious upbringing of their children.”31

In Parham v. J.R., the Court referred to “broad parental authority over minor children” 32 in connection

with parents’ ability to admit a child to a mental institution without a prior adversarial proceeding. And in

Prince v. Massachusetts – about a religious freedom

claim for exemption from child labor law – the Court

quoted that portion of Pierce stating that it “is cardinal

with us that the custody, care and nurture of the child

reside first in the parents[.]”33 And it noted further

that “it is in recognition of this that [our] decisions

have respected the private realm of family life which

the state cannot enter.”34

In the most recent significant case discussing parents’ interests, Troxel v. Granville, a plurality called

parents’ role “in the upbringing of their children” “es-

30 Id. at 213-14 (emphasis added).

31 Id. at 214 (emphasis added).

32 Parham v. J. R., 442 U.S. 584, 602 (1979).

33 Prince v. Massachusetts, 321 U.S. 158, 166 (1944).

34 Ibid. (emphasis added).

16

tablished beyond debate as an enduring American tradition,”35 and “perhaps the oldest of the fundamental

liberty interests recognized by this Court,”36 citing a

line of cases stretching back to the 1920s.37 It further

referred to the mother’s “fundamental right to make

decisions concerning the rearing of her two daughters.”38 The Troxel plurality did not, however, apply a

strict scrutiny analysis to the challenged law, but

stated rather that the state owed parental decisions

about grandparent visitation “special weight”39 and

“deference.”40

In putting parents before the state, Troxel thus

echoes this Court’s decisions going back over one hundred years recognizing that authority over children’s

upbringing, especially their religious education

35 Troxel v. Granville, 530 U.S. 57, 65 (2000) (emphasis added)

(quoting Yoder, 406 U.S. at 232).

36 Id. at 65 (emphasis added).

37 Id. at 66 (citing Parham, 442 U.S. at 602 (“Our jurisprudence historically has reflected Western civilization concepts of

the family as a unit with broad parental authority over minor

children. Our cases have consistently followed that course”);

Santosky v. Kramer, 455 U.S. 745, 753, (1982) (discussing “[t]he

fundamental liberty interest of natural parents in the care, custody, and management of their child”); Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (“In a long line of cases, we have

held that, in addition to the specific freedoms protected by the

Bill of Rights, the ‘liberty’ specially protected by the Due Process Clause includes the righ[t] . . . to direct the education and

upbringing of one's children”).

38 Id. at 68.

39 Id. at 69.

40 Id. at 75.

17

“resid[es] first” in parents (Prince), is accorded a “high

place,” (Yoder), and is “broad” (Parham). At the very

minimum, this requires a state to give parents notice

and an opportunity to opt out of materials within parents’ realm of authority.

Certainly, this Court has recognized that parental

actions may not cause “harm to the physical or mental

health of the child or to the public safety, peace, order,

or welfare.”41 But there is no claim here – and it would

be absurd to make such a claim – that children will be

harmed if not exposed to the Pride Storybooks should

parents obtain notice and a right to opt out.

We turn now to how the matters at issue in this

case – when and how to expose children to sexual topics touching upon the intersection of their faith,

health, and family life – are within parents’ realm of

primary authority. Such matters are easily at the core

of this realm, and only distantly related at best to any

state interests in education.

This Court has recognized limited state interests

in matters concerning children’s education, most particularly, to develop children’s potential for adult selfsufficiency and to prepare them to exercise the role of

citizen in a pluralistic democracy. The Meyer Court,

for example, acknowledged state power to “prescribe a

curriculum”42 directed to “foster[ing] a homogeneous

41 Yoder, 406 U.S. at 229-230.

42 Meyer, 262 U.S. at 402.

18

people with American ideals prepared readily to understand current discussions of civic matters.”43 In

Pierce, it recognized state authority to provide “certain

studies plainly essential to good citizenship.”44 The

Prince Court, in a case concerning a ban on child labor,

spoke about how a “democratic society rests, for its

continuance, upon the healthy, well-rounded growth

of young people into full maturity as citizens, with all

that implies.”45 Regarding the contents of education,

Yoder described educational content that “ prepare[s]

citizens to participate effectively and intelligently in

our open political system . . . to preserve freedom and

independence,” and that “prepare[s] individuals to be

self-reliant and self-sufficient participants in society.”46

We turn now to the substantive realms in which

this Court has recognized parents’ primary authority.

The Meyer Court recognized parents’ superior authority to choose to introduce or to pass on a culture to a

child. It located this choice within parents’ right to “establish a home and bring up children, . . . and to enjoy

those privileges long recognized at common law as essential to the orderly pursuit of happiness by free

men.”48 Pierce recognized parents’ “traditional interest . . . with respect to the religious upbringing of their

43 Id.

44 Pierce, 268 U.S. at 534.

45 Prince, 321 U.S. at 168.

46 Yoder, 406 U.S. at 221.

48 Meyer, 262 U.S. at 399.

19

children,”49 their “liberty . . . to direct the upbringing

and education of children,”50 and their authority to

“nurture him and direct his destiny.”51

Yoder described parent’s prior authority over the

social and educational environments shaping their

children’s “way of life”52 and their “values,”53 such as

the value of a life of “‘goodness,’ rather than a life of

intellect; wisdom, rather than technical knowledge,

community welfare, rather than competition; and separation from, rather than integration with, contemporary worldly society.”54 It strongly supported “family

decisions in the area of religious training.”55

West Virginia State Board of Education v. Barnette,56 (concerning the right of Jehovah’s Witness children not to honor the American flag) articulated robust protection for parents’ primary authority to form

their children’s religious beliefs in a case wherein free

speech and the free exercise of religion intersected.

The Court there affirmed “[t]he rights of . . . parents

to give [children] religious training and to encourage

49 Yoder, 406 U.S. at 214.

50 Pierce, 268 U.S. at 534.

51 Id. at 535.

52 Yoder, 406 U.S. at 209.

53 Id. at 210.

54 Id. at 211.

55 Id. at 231-232.

56 319 U.S. 624 (1943).

20

them in the practice of religious belief, as against preponderant sentiment and assertion of state power.”57

It also stated that “[f]ree public education, if faithful

to the ideal of secular instruction and political neutrality, will not be partisan or enemy of any class, creed,

party, or faction.”58

In Moore v. City of East Cleveland,59 upon striking

down a zoning law forcibly separating a grandmother

and grandson, the Court affirmed the priority of family in the process of “inculcat[ing] and pass[ing] down

many of our most cherished values, moral and cultural.”60

Finally, this Court has several times underlined

the particular strength of parents’ authority when education, upbringing and religious transmission overlap. The Prince Court wrote: “The parent's conflict

with the state over control of the child and his training

is serious enough when only secular matters are concerned. It becomes the more so when an element of religious conviction enters.”61 This led to its holding that

the most exacting scrutiny is due in these circumstances: “when state action impinges upon a claimed

57 Prince, 321 U.S. at 165.

58 Id. at 637 (emphasis added).

59 431 U.S. 494 (1977).

60 Id. at 503-504.

61 Prince, 321 U.S. at 165.

21

religious freedom, it must fall unless shown to be necessary for or conducive to the child's protection against

some clear and present danger….” 62

The Yoder Court upheld the same, writing that

“when the interests of parenthood are combined with

a free exercise claim of the nature revealed by this record, more than merely a ‘reasonable relation to some

purpose within the competency of the State’ is required to sustain the validity of the State's requirement under the First Amendment.”63 And Employment

Division v. Smith64 carefully preserved Yoder’s application of strict scrutiny to protect parents’ rights respecting their children’s religious education.

It

treated Yoder as a special “hybrid situation” meriting

such heightened scrutiny because it involved the connection between religious freedom and “a parental

right.”65

Applying all of these pronouncements about parents’ and the state’s interests to the case at hand, it is

clear that parents’ interests are primary and demand

state deference. The County has not shown any relationship between inviting minors to approve of various

sexual behaviors or subjective sex determination, and

its interests in attaining adult self-sufficiency or the

skills necessary for civic participation. It cannot claim,

as an element of the latter interest, that the Program

62 Id. at 167 (emphasis added).

63 Yoder, 406 U.S. at 233.

64 494 U.S. 872 (1990).

65 Id. at 881-882.

22

is directed to encouraging students to empathize and

collaborate with peers. For the Pride Storybooks aim

way beyond respectfully acknowledging and showing

kindness to different persons in one’s community. Instead, they are directed toward approving behaviors of

only a small set of neighbors (while disapproving

many others’) and, in the case of transgender identification, accepting highly-contested sexual facts about

oneself and others. These constitute matters central to

the intersection of religion, health and family life. And

again, at no time has the absurd claim been made that

removing children’s access to the Pride Storybooks

through parental opt-outs would be harmful to children. Consequently, and at the very least then, granting proper constitutional deference to parents requires

notice and an opportunity to opt their children out of

exposure to this Program.

III.
State Family Law Reveals a History and Tradition of Recognizing Parents’ Primary

Rights Respecting Children’s Religious Education

Part II demonstrated that this Court has repeatedly upheld parents’ primary authority respecting

their children’s religious education. Its conclusions are

strengthened and supported by a long history and tradition of state family laws supporting parental primacy in this area, including over children’ sexual education.

Parents’ have been sending their children to religious schools in the United States since before the

Revolution. They have sent them, for example, to

23

Quaker schooling since 1689,66 to Jewish day schooling

since 1731,67 and to Catholic schools since 1606.68 Attendance at religious schools has persisted uninterrupted to today, when about three-quarters of privately educated K-12 students in the United States attend religious schools.69 Homeschooling too, has been

a vehicle for parental transmission of faith through education, since before the Revolution.70 Even today,

about one-half of parents who homeschool report that

they do so for religious reasons.71

State family laws concerning custody also

acknowledge parents’ primary authority over their

children’s religious education. Generally speaking,

The William Penn Charter

https://www.penncharter.com.

66

School,

About

Us,

67 My Jewish Learning, History of Jewish Schooling in America,

https://www.myjewishlearning.com/article/jewish-schooling/.

Richard M. Jacobs OSA, U.S. Catholic Schools and the

Religious Who Served in Them: Contributions in the 18th and

19th Centuries, 1 Catholic Education: A Journal of Inquiry and

Practice 364 (1998).

68

69 Katherine Schaeffer, U.S. public, private and charter schools

in 5 charts, Pew Research Center, June 6, 2024,

https://www.pewresearch.org/short-reads/2024/06/06/us-publicprivate-and-charter-schools-in-5charts/#:~:text=Private%20schools%20are%20known%20for,of%

20all%20private%20school%20enrollment.

70 Angela Watson, et al., The fall and rise of home education,

in Homeschooling in the 21st Century ch. 1 (Routledge 2018).

71 Laura Meckler Peter, et al., Home schooling today is less

religious and more diverse, poll finds, The Washington Post,

Sept.

28,

2023,

https://www.washingtonpost.com/education/2023/09/26/homeschooling-vs-public-school-poll/.

24

absent evidence that a child would be harmed, a custodial parent has the authority to pursue a particular

religious upbringing; and even the noncustodial parent retains the right to educate the child in his or her

religion.72

The history and tradition of states’ handling of elementary and secondary schools’ sex education also indicates that states have acknowledged parent’s superior authority over this subject. This is well-document

in a comprehensive history of U.S. sex education, Jeffery Moran’s Teaching Sex: The Shaping of Adolescence in the 20th Century73 The author chronicles how,

beginning sporadically in the 1920s (as a reaction to

venereal diseases and prostitution during World War

I)74 and rising and falling through the 1960s,75 limited

sex education appeared in some high schools. Courses

did not treat the subjects and perspectives proposed

here by the County, but rather taught the biology of

the reproductive system, the harm of venereal diseases and nonmarital sexual relations, and – toward

the latter decades of this period – a “family life education” concerning how successfully to marry and parent. Some school districts during this period were supportive of some forms of sex-education, while others

72 See, e.g., George L. Blum, Religion as a Factor in Child

Custody Cases, 124 A.L.R.5th 203 (2004). See also Kevin M.

Smith, Parental Rights and the Child's Best Interests: Resolving

Conflicts over Religion, Education and Health Care Choices in

Custody Cases, 91 Kan. B.J. 20, 23 (2022).

73 (Harvard University Press 2000).

74 Id. at 82.

75 Id. at 105-108, 124-125, 129-132, 165.

25

continued to ban it given religious and moral opposition.76

When some programs in the 1970s began to offer

normative instruction favorable to nonmarital or

same-sex relations – more similar to the County’s Program here – parents quickly reacted against states’

usurpation of their authority, even organizing opposition across dozens of states simultaneously, regularly

on religious grounds.77 States conceded parental authority. As the Petitioners’ Brief documents, fortyseven states and the District of Columbia allow for parental opt-outs, or require parental opt-ins, before

schools may offer sex education. Three states laws are

silent on the subject, and no state has completely

barred opt- outs.78

In sum, a long history and tradition of state family

laws support this Court’s constitutional conclusion

that parents’ rights respecting their children’s religious education include their authority over sex education and demand deference from the state.

CONCLUSION

For the reasons set forth above, we urge this Court to

reverse the decision below.

76 Id. at 143.

77 Id. at 181-184. See also SIECUS, supra at 9-36.

78 Pet. Brief at 7.

26

Respectfully submitted.

HELEN M. ALVARÉ

Counsel of Record

ANTONIN SCALIA LAW

SCHOOL

GEORGE MASON UNIVERSITY

3301 Fairfax Drive

Arlington, VA 22201

301-276-1492

halvare@gmu.edu

Counsel for Amici Curiae

March 10, 2025