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

TAHMER 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 LIBERTY COUNSEL

AS AMICUS CURIAE SUPPORTING PETITIONERS

ANITA L. STAVER

HORATIO G. MIHET

DANIEL J. SCHMID

AVERY B. HILL

LIBERTY COUNSEL

P.O. Box 540774

Orlando, FL 32854

MATHEW D. STAVER

Counsel of Record

LIBERTY COUNSEL

109 Second Street NE

Washington, D.C. 20002

(202) 289-1776

court@lc.org

Counsel for Amicus

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

i

TABLE OF CONTENTS

Page

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

INTEREST OF AMICUS CURIAE ......................... 1

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

ARGUMENT ............................................................ 5

I. Montgomery County Public Schools Contravened

the Free Exercise Clause By Subjecting

Children to a Curriculum Intolerant of Their

Families’ Sincerely Held Religious Beliefs. .... 5

A. The

Government’s

Indirect

Coercion

Excluding Children and Parents From Their

Ability to Live Out Their Faith in Daily Life

Fails Strict Scrutiny. ..................................... 9

B. Exposing Children to Worldly Influence

Which Substantially Interfere With Religious

Development Creates a Cognizable Free

Exercise Burden. ......................................... 14

II. Montgomery County Public Schools Has Forced

Parents to Choose Between Their Sincerely

Held Religious Beliefs and Educating Their

Children. ........................................................ 22

A. The Pressure to choose between religious

exercise and government benefits strains the

free exercise of religion. .............................. 23

B. The exclusion of religious practitioners from

government

benefit,

or

failure

to

accommodate religious beliefs is patent

hostility toward, not neutrality respecting,

religion. ........................................................ 27

ii

III.Smith Fails to Prevent Government Actions that

Both Directly and Indirectly Interfere with the

Free Exercise of Religion, Whereas Sherbert

Protects Against Facially Neutral State Action

that Burdens the Free Exercise of Religion. 30

A. The First Amendment’s Free Exercise Clause

has been demoted to a secondary nondiscrimination clause, rather than applied, as

intended, to prohibit the infringement of

religious liberty by civil authority. ............. 30

B. The requirement that Government action be

“neutral” does not prevent Government action

from unconstitutionally interfering with

religion. ........................................................ 32

CONCLUSION ....................................................... 34

iii

TABLE OF AUTHORITIES

Page

Cases

American Communications Ass’n v. Douds, 339

U.S. 382 (1950) ................................................... 34

Braunfeld v. Brown, 366 U.S. 599 (1961) ............. 33

Church of Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520 (1993) ................. 12, 25, 33

City of Boerne v. Flores, 521 U.S. 507 (1997) . 5, 6, 7,

8

Cutter v. Wilkinson, 544 U.S. 709 (2005) ... 8, 13, 31,

32

Em. Div., Dep’t of Hum. Res. of Oregon v. Smith,

494 U.S. 872 (1990) .................................. 2, 31, 33

Follett v. Town of McCormick, S.C., 321 U.S. 573

(1944) .................................................................. 23

Fowler v. State of R.I., 345 U.S. 67 (1953) ............ 22

Fulton v. City of Philadelphia, Pennsylvania, 593

U.S. 522 (2021) ......................................... 2, 13, 24

Grosjean v. Am. Press Co., 297 U.S. 233 (1936) .... 23

Hannegan v. Esquire, Inc., 327 U.S. 146 (1946) ... 34

Hobbie v. Unemployment Appeals Comm., 480 U.S.

136 (1987) ........................................................... 13

Lee v. Weisman, 505 U.S. 577 (1992) ...................... 2

Locke v. Davey, 540 U.S. 712 (2004) ...................... 31

Lyng v. Nw. Indian Cemetery Protective Ass’n, 484

U.S. 439 (1988) ................................................... 13

Mahmoud v. McKnight, 102 F.4th 191 (4th Cir.

2024) 2, 4, 10, 13, 14, 15, 16, 17, 23, 24, 27, 29, 30,

32

iv

Masterpiece Cakeshop v. Colorado C.R. Comm’n,

584 U.S. 617 (2018) ...................................... 12, 33

McDaniel v. Paty, 435 U.S. 618 (1978) ...... 24, 29, 30

Meyer v. Nebraska, 262 U.S. 390 (1923) ......... 11, 18

Minersville Sch. Dist. v. Gobitis, 310 U.S. 586

(1940) .................................................................. 33

Murdock v. Com. Of Pennsylvania, 319 U.S. 105

(1943) .................................................................. 22

National Ass’n for Advancement of Colored People

v. Button, 371 U.S. 415 (1963) ........................... 33

Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008) 10, 19,

20

Pierce v. Society of the Sisters of the Holy Names of

Jesus & Mary, 268 U.S. 510 (1925) ................... 18

Sch. Dist. of Abington Twp., Pa. v. Schempp, 374

U.S. 203 (1963), 494 U.S. 872 (1990) ................. 31

Sherbert v. Verner, 374 U.S. 398 (1963) 4, 21, 22, 23,

24, 26, 27, 33, 34

Torcaso v. Watkins, 367 U.S. 488 (1961) ............... 22

Trinity Lutheran Church of Columbia, Inc. v.

Comer, 582 U.S. 449 (2017) .............. 13, 24, 25, 28

Walz v. Tax Comm’n of City of New York, 397 U.S.

664 (1970) ....................................................... 4, 31

Wieman v. Upddegraff, 344 U.S. 183 (1952) ......... 34

Wisconsin v. Yoder, 406 U.S. 205 (1972) 3, 4, 14, 15,

16, 17, 18, 19, 20, 21

Zorach v. Clauson, 343 U.S. 306 (1952) .......... 29, 30

Statutes

U.S. CONST. amend. I ............................................... 8

v

Other Authorities

Act Concerning Religion of 1649, reprinted in 5 the

Houdners’ Constitution 49 (P. Kurland & R.

Lerner eds. 1987) .................................................. 6

Alan M. Turing, Computing Machinery and

Intelligence, Mind, Volume LIX, Issue 236 (Oct.

1950).................................................................... 19

Alfonso Card. Lopez Trujillo and Most Rev. Elio

Sgreccia, The Truth and Meaning of Human

Sexuality: Guidelines for Education within the

Family (Dec. 8, 1995)............................................ 9

Bureau of Labor Statistics, U.S. Department of

Labor, Employment Characteristics of Families –

2023 (Apr. 24, 2024) ........................................... 26

Chris Jennewein, Rosh Hashanah 2024: Jewish

New Year 5785 Begins at Sundown on

Wednesday, Times of San Diego (Oct. 1, 2024) . 19

Committee Draft of the Virginia Declaration of

Rights, 1 Papers of George Mason (R. Rutland ed.

1970)...................................................................... 7

G. Hunt, James Madison and Religious Liberty, in

1 Annual Report of the American Historical

Association, H.R. Doc. No. 702, 57th Cong., 1st

Sess., 163 (1901). .................................................. 8

Jennifer Taylor, Here’s the Minimum Salary

Required To Be Considered Upper-Middle Class

in 2025, Yahoo! Finance (Feb. 12, 2025)............ 26

Martin Dasko, What is the Estimated Median

Income for Upper-Middle Class in 2025?, Nasdaq

(Feb. 16, 2025) .................................................... 25

Mat Staver, Their Refusal to Obey Will be Costly,

Liberty Counsel (Jan. 6, 2025) ........................... 11

vi

Michael W. McConnell, The Origins and Historical

Understanding of Free Exercise of Religion, 103

Harv. L.Rev. 1409 (1990) ..................................... 5

Proverbs (KJV) ......................................................... 9

Thomas Kidd, The Founding of Maryland, Bill of

Rights Institute (Feb. 27, 2025) ....................... 6, 7

Tori Latham, Private-School Tuition in the U.S.

Hits a Record-High $49,284, Yahoo! Finance

(Feb. 12, 2025) .................................................... 25

U.S. Teens Take After Their Parents Religiously,

Attend Services Together and Enjoy Family

Rituals, Pew research Center (Sep. 10, 2020) ... 11

INTEREST OF AMICUS CURIAE 1

Liberty Counsel is a national civil liberties organization that provides education and legal defense on

issues relating to religious liberty, the family, and

sanctity of life. Liberty Counsel is committed to upholding the historical understanding and protection

of the rights to free speech and free exercise of religion and ensuring those rights remain an integral

part of the country’s cultural identity. Liberty Counsel has been substantially involved in advocating for

the religious liberty of Americans who’s sincerely

held religious beliefs compel adherence to Biblical

positions on education, sexual orientation, gender,

and marriage. Liberty Counsel attorneys have represented clients before this Court, including in a

number of cases in which the Free Exercise Clause

was a seminal issue, e.g., Harvest Rock Church, Inc.

v. Newsom, 141 S. Ct. 889 (2020); Harvest Rock

Church, Inc. v. Newsom, 141 S. Ct. 1289 (2021), and

frequently represent clients in free exercise cases in

every federal circuit court of appeals and federal district courts. Its attorneys have also spoken and testified before Congress on matters relating to government infringement on First Amendment rights.

Amicus has an interest in ensuring that parents

retain freedom and autonomy to live out their faith

in daily life, including the fundamental right to remove their children from education hostile to their

beliefs and degrading to their purity. Amicus also

1 No counsel for any party authored this brief in whole or in

part, and no person other than Amicus or its counsel made a

monetary contribution intended to fund this brief’s preparation

or submission.

2

advocates that the First Amendment prohibits educational programs that force parents to choose between the government benefit of public education

and their faith.

SUMMARY OF ARGUMENT

This case at bar is merely the latest example of

the problems begat by this Court’s reformulation of

the Free Exercise Clause in Em. Div., Dep’t of Hum.

Res. v. Smith, 494 U.S. 872 (1990). For nearly 35

years, Governments—shielded by Smith—have undermined the Free Exercise Clause by liberally restricting the exercise of religion so long as they do so

with “neutral” and “generally applicable” laws. Fulton v. City of Philadelphia, 593 U.S. 522, 523 (2021)

(citing Smith, 494 U.S. at 878-882). The Fourth Circuit took Smith a constitutionally defunct step further, effectively nullifying Free Exercise Clause protections in the public education setting. The decision

below held that neither compulsory classroom instruction that violates a parent’s sincerely held religious beliefs, nor forcing parents to choose between

public education and their faith creates “a cognizable burden” on religious liberty, “even if the choice

places the parents in an undesired – but not unconstitutionally coercive – position.” Mahmoud v.

McKnight, 102 F.4th 191, 216 (4th Cir. 2024). That

holding simply cannot be reconciled with the First

Amendment.

Despite “heightened concerns with protecting

freedom of conscience from subtle coercive pressure

in the elementary public schools,” Lee v. Weisman,

505 U.S. 577, 592 (1992), Respondents’ actions, and

the Fourth Circuit’s ruling below, unconstitutionally

3

coerce parents into subjecting their children to material antithetical to Christian and Islamic religions.

Resp’t Br. in Opp’n 7. Respondents stripped the parents representing “[t]he growing number of opt-out

requests” of their right to opt their children out of

education about gender and sexuality because of the

alleged “risk of exposing students who believe the

storybooks represent them and their families to social stigma and isolation.” Resp’t Br. in Opp’n 7. In

essence, the Fourth Circuit permitted the government to ignore religious beliefs and impose whatever

burden on those religious beliefs it deemed fit because some other parents might have found those

views offensive. The First Amendment knows no

such parental heckler’s veto, and this Court must reject it. The First Amendment demands that this intolerance of, and masked hostility toward, religion

and impermissible value judgments demeaning the

religious rights of parents who seek an opt out from

the curriculum that violates their religious beliefs be

subjected to strict scrutiny.

In Wisconsin v. Yoder, this Court unequivocally

held that parents cannot be forced to subject their

children to an environment hostile to their religious

beliefs. 406 U.S. 205, 233-34 (1972). No one questions the State’s asserted interest in providing public education, but that alleged interest is subservient

to the oldest fundamental right known to the Republic—the right to direct the upbringing and education

of one’s child. See Troxel v. Granville, 530 U.S. 57,

65 (2000) The Fourth Circuit, echoing similar perspectives from the First, Second, Sixth, Seventh, and

Eight Circuits, incorrectly treated Yoder as some

4

aberration in the Court’s Free Exercise Clause jurisprudence. Mahmoud, 102 F.4th at 210. It is not.

Respondents’ policies place a substantial burden

on Petitioners’ religious exercise by forcing parents

to choose between the benefit of public education

and their faith. “Governmental imposition of such a

choice puts the same kind of burden upon the free

exercise of religion as would a fine imposed [for] Saturday worship.” Sherbert v. Verner, 374 U.S. 398,

404 (1963).

The requirement that Government action be

“neutral” or “generally applicable” does not, and historically has not, prevented Government interference with religious exercise. In fact, such relaxed

terms are far too often used (as below) to justify, rather than condemn, discriminatory treatment on religious exercise. The Free Exercise Clause “requires

government respect for, and noninterference with,

the religious beliefs and practices of our Nation’s

people.” Cutter v. Wilkinson, 544 U.S. 709, 714

(2005) (citing Locke v. Davey, 540 U.S. 712, 718

(2004); Walz v. Tax Comm’n of City of New York, 397

U.S. 664, 668 (1970)). This Court last recognized

Constitutionally compliant Free Exercise Clause

protections in Sherbert, 374 U.S. at 404. Placing religious adherents in the irresolvable conflict between forfeiting a benefit and abandoning faith is

impermissible interference with religious exercise.

The Court should reverse the decision below and

return free exercise jurisprudence to its original understanding—requiring not merely tolerance, but

accommodation of religion. Lynch v. Donnelly, 465

U.S. 668, 673 (1984). Anything less turns the Free

5

Exercise Clause into merely a nondiscrimination

provision it was never intended to be, Fulton, 593

U.S. at 567 (Alito, J., concurring), and infringes the

right of religious adherents to exercise their faith

free from government interference.

ARGUMENT

I.

Montgomery County Public Schools

Contravened the Free Exercise Clause By

Subjecting Children to a Curriculum

Intolerant of Their Families’ Sincerely

Held Religious Beliefs.

Maryland was the first colony to enact a “Free

Exercise Clause” concerning religion. Despite that

admirable history, Respondents’ policies below

trample that history and dismantle the same protections provided by the First Amendment’s Free Exercise Clause.

Three hundred and seventy-seven years ago, in

the Colony of Maryland, Cecil Calvert, better known

as Lord Baltimore, obtained a promise from the Governor of the Colony that he and his councilors would

not disturb Christians “in the ‘free exercise’ of their

religion.’” City of Boerne v. Flores, 521 U.S. 507, 551

(1997) (O’Connor, J., dissenting) (citing Michael W.

McConnel, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev.

1409, 1425 (1990)).

Maryland’s founders established the colony as a

sanctuary for Catholics fleeing persecution in England. Thomas Kidd, The Founding of Maryland, Bill

6

of Rights Institute (Feb. 27, 2025). 2 The Colony

quickly became a bastion of religious diversity, forcing the state to forge a resolution that would allow

the Colony’s many cultures to coexist peacefully. Id.

In 1649, Maryland’s General Assembly developed

the model for establishing governmental protection

for the free exercise of religion. The Assembly passed

the “Act Concerning Religion,” a radical legislative

measure at the time, which read:

No person … professing to believe in

Jesus Christ, shall from henceforth bee

any waies troubled, Moelested or discountenanced for or in respect of his or

her religion nor in the free exercise

thereof … nor any way [be] compelled

to the beleife or exercise of any other

Religion against his or her consent, soe

as they may be not unfaithful to the

Lord Protietary, or molest or conspire

against the civil Governemt.

City of Boerne, 521 U.S. at 551 (O’Connor, J., dissenting) (citing Act Concerning Religion of 1649, reprinted in 5 the Houdners’ Constitution 49, 50 (P.

Kurland & R. Lerner eds. 1987)).

“[T]he act decreed all Christians free to worship

as they wished, so long as they believed in the Trinity (the existence of God in three persons: Father,

Son, and Holy Spirit) and in the divinity of Jesus

Christ.” Thomas Kidd, The Founding of Maryland,

Available at https://billofrightsinstitute.org/essays/thefounding-of-maryland.

2

7

Bill of Rights Institute (Feb. 27, 2025). 3 “No Christians would be persecuted for their faith, and none

could be forced to attend services of or pay tithes to

any other denomination.” Id.

Maryland’s “Act Concerning Religion” initiated a

wave of efforts among the colonies to strengthen religious protections. By 1787, Maryland, Rhode Island, New York, New Hampshire, Georgia, and the

Northwest Ordinance—made up of Ohio, Indiana,

Michigan, Wisconsin, and part of Minnesota—had

all enacted constitutions establishing protections for

the free exercise of religion. City of Boerne, 521 U.S.

at 554-55 (O’Connor, J., dissenting). In Virginia,

James Madison and George Mason debated the language to incorporate in the Commonwealth’s Free

Exercise Clause. Id. Mason initially proposed use of

the language, “that all men should enjoy the fullest

toleration in the exercise of religion….” Id. at 551

(quoting Committee Draft of the Virginia Declaration of Rights, 1 Papers of George Mason 284-85 (R.

Rutland ed. 1970)).

Madison objected to “the term ‘toleration,’ contending that the word implied that the right to practice one’ religion was a governmental favor, rather

than an inalienable liberty.” Id. Madison’s preferred

language was, “‘[t]hat religion, or the duty we owe

our Creator, and the manner of discharging it, being

under the direction of reason and conviction only,

not of violence or compulsion, all men are equally entitled to the full and free exercise of its religion… unless under color of religion the preservation of equal

Available at https://billofrightsinstitute.org/essays/thefounding-of-maryland.

3

8

liberty, and the existence of the State be manifestly

endangered.’” Id. at 555-56 (quoting G. Hunt, James

Madison and Religious Liberty, in 1 Annual Report

of the American Historical Association, H.R. Doc.

No. 702, 57th Cong., 1st Sess., 163, 166-167 (1901)).

“[U]nder Madison’s proposal, the State could interfere in a believer’s religious exercise only if the State

would otherwise ‘be manifestly endangered.’” Id.

In light of this historical context, the Constitutional Convention adopted the separate and distinct

Free Exercise clause – the subject of today’s debate.

The First Amendment’s Free Exercise Clause, made

applicable to the States through the Fourteenth

Amendment to the United States Constitution, provides the government “shall make no law … prohibiting the free exercise of religion.” U.S. CONST.

amend. I. “[T]he Free Exercise Clause, requires government respect for, and noninterference with, the

religious beliefs and practices of our Nation’s people.” Cutter, 544 U.S. at 719.

America’s settlers did not risk disease and death

at sea from a 10-week journey to the Colonies to receive the miniscule protections afforded to religious

exercise by Smith and the Fourth Circuit’s constitutionally infirm interpretation of its protections.

These settlers had no question of their desired protection for religious liberty—it was the raison d’etre

of their voyage. They sought American protection

from governmental interreference with religion, entirely, not just directly. The Free Exercise Clause

they adopted provided it, and Smith took it away.

9

A. Government

Coercion

Prohibiting

Children and Parents From Exercising

Their Faith in Daily Life Fails Strict

Scrutiny.

1. The parents’ sincerely held religious beliefs require they direct and train their

children in accord with their faith.

Petitioners are Islamic, Roman Catholic, and

Ukrainian Orthodox. Pet. for Writ of Cert. 9. Unnamed, yet interested parties include over 1,100 parents that signed a petition asking the Board to restore Maryland’s mandatory notice and opt-out requirements. Pet. for Writ of Cert. 15.

The Islamic faith forbids parents from exposing

their young children “‘to activities and curriculum

on sex, sexuality, and gender that undermine Islamic teachings.’” Pet. for Writ of Cert. 9 (citing Surah-Al-An’am 6:69-69). Similarly, Christians believe

that parents must direct the upbringing of their children. Proverbs 22:6 (KJV) (“Train a child up in the

way he should go, and when he is old he will not depart from it.”). As Petitioners articulated, the Bible

requires teaching children that “a person’s biological

sex is a gift bestowed by God that is both unchanging

and integral to that person’s being.” Pet. for Writ of

Cert. 9 (citing Pet. App. 543). Roman Catholic,

Ukrainian Orthodox, and many other Christian

churches specifically hold, integral to their faith, a

sincere religious belief 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. for Writ of Cert. 10 (citing

Pet. App. 539).

10

Petitioners exhausted the record with evidence of

their sincerely held religious beliefs, which the

Fourth Circuit defined as requiring parents direct

and train their children “in accord with their faith

on what it means to be male and female; the institution of marriage; human sexuality; and related

themes.” Mahmoud, 102 F.4th at 210. Yet, the court

held that governmental hostility towards those beliefs imposed no “direct or indirect pressure to abandon religious beliefs,” and was thus not a violation of

the First Amendment. Id. Substituting its own beliefs for the sincerely held religious beliefs of Petitioners, the decision below stated that “simply hearing about other views does not necessarily exert

pressure to believe or act differently than one’s religious faith requires.” Id. That is plainly incorrect.

2. Respondents’ intolerance of religious beliefs directly interfered with parents’ ability to live out their faith, thus requiring

strict scrutiny.

It is beyond cavil that Respondent’s elimination

of any religious parental opt-out from pre-school sex

education unreasonably interferes with and substantially burdens the liberty of parents to direct the

upbringing and education of their children and thus

live out their faith. Respondents threaten to destroy

a “distinct community and lifestyle,” that is “fundamentally incompatible with any schooling system”

that teaches young children about sex, gender ideology, and the acceptance and eventual assumption of

the mental distress known as “gender dysphoria.”

Resp’t Br. in Opp’n 20 (quoting Parker v. Hurley, 514

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

11

Data substantiates this position. Specifically,

“85% of adult believers say they made a decision for

the Lord before age 14. The 4-14 window is critical

in the [religious journey] of a child.” Mat Staver,

Their Refusal to Obey Will be Costly, Liberty Counsel (Jan. 6, 2025). 4 In the United States in 2020, 63%

of adolescents ages 13-17 self-identified as Christian, U.S. Teens Take After Their Parents Religiously, Attend Services Together and Enjoy Family

Rituals, Pew research Center (Sep. 10, 2020), 5 and

17% of those children developed religious identities

different from their parents, likely through teachings outside of the home. Id.

Despite the Fourth Circuit’s conclusions below,

neither the Fourteenth Amendment nor the Free Exercise Clause allows the government to subjugate

children to educational curriculum that steers children away from the faith their parents have instructed them in and desire for their lives. Indeed,

as this Court has unequivocally stated, the Fourteenth Amendment, “[w]ithout doubt . . . denotes the

right of the individual to establish a home and bring

up children, [and] to worship God according to the

dictates of his own conscience.” Meyer v. Nebraska,

262 U.S. 390, 399 (1923) (cleaned up). And, it matters not that the Board’s refusal to provide an optout to the curriculum did not explicitly target religion because “[t]he Free Exercise Clause protects

against government hostility that is masked, as well

Available at https://lc.org/newsroom/details/250106their-refusal-to-obey-will-be-costly.

5

Available

at

https://www.pewresearch.org/religion/2020/09/10/religious-affiliation-among-american-adolescents/.

4

12

as overt.” Church of Lukumi Bablu Aye, Inc. v. City

of Hialeah, 508 U.S. 520, 534 (1993).

Despite the purported “neutrality” of Respondents’ curriculum or its alleged “general applicability,” 6 the Board’s hostility towards the parent’s religious beliefs directly interfered with their ability to

live out their faith in daily life, requiring this Court

apply strict scrutiny.

3. This Court’s “incidental burden” circumvention of strict scrutiny is incompatible

with the Free Exercise Clause.

The First Amendment “affirmatively mandates

accommodation, not merely tolerance, of all religions, and forbids hostility toward any.” Lynch v.

Donnelly, 465 U.S. 668, 673 (1984) (citing Zorach v.

Clauson, 343 U.S. 206 (1952)). Rather than ignoring

it for the sake of superficial neutrality, the Government must positively accommodate religious beliefs.

See Masterpiece Cakeshop v. Colorado C.R. Comm’n,

584 U.S. 617, 638 (2018). Unsurprisingly, the lower

Court turned to Smith to support Respondents’

masked targeting of religious parents by deeming

the curriculum only “incidentally burdening religion,” removing it from the confines of strict

Amicus rejects the contention that a government policy

prohibiting religious opt-outs from a curriculum that primarily

draws objections from parents with sincerely held religious beliefs against such curriculum should be considered neutral or

generally applicable. Indeed, it is no more neutral or generally

applicable than Hialeah’s ritual animal sacrifice provision in

Lukumi, that—though seemingly neutral on its face—was neither neutral nor generally applicable because it singled out for

prohibition a practice engaged in solely by religious adherents.

Lukumi, 508 U.S. at 543.

6

13

scrutiny, and instead grading it on a curve using this

Court’s “neutral and generally applicable” standard.

Mahmoud, 102 F.4th at 206 (citing Fulton, 593 U.S.

at 531).

This Court’s “incidental burden” analysis circumvents strict scrutiny in a way that is incompatible

with the Free Exercise Clause. “[T]he Free Exercise

Clause protects against ‘indirect coercion or penalties on the free exercise of religion, not just outright

prohibitions.’” Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449, 450-51 (2017) (quoting Lyng v. Nw. Indian Cemetery Protective Ass’n,

484 U.S. 439 (1988)).”

Free Exercise Clause protection “requires government respect for, and noninterference with, the

religious beliefs and practices of our Nation’s people.” Cutter, 544 U.S. at 719. Indeed, “the government may (and sometimes must) accommodate religious practices.” Hobbie v. Unemployment Appeals

Comm., 480 U.S. 136, 144-45 (1987) (emphasis

added). In light of this Court’s precedent regarding

child rearing, the special solicitude given parental

rights, and Petitioners’ religious beliefs concerning

the education of their children, this Court cannot

recognize the State’s purported interest in public education as sufficient to preclude accommodation of a

parent’s sincerely held religious objections to certain

aspects of that education.

14

B. Exposing Children to Government

Indoctrination, Which Substantially

Interferes

With

Religious

Development, Creates a Substantial

Burden On Religious Exercise.

Respondents argue that the central question of

this case ‘is whether the facts involve government

coercion to violate religious beliefs.” Resp’t Br. in

Opp’n 19. Respondents attempt an answer to their

own question by a false comparison to Yoder, “[i]n

Yoder, they did; here they do not.” Id. (citing Yoder,

406 U.S. 205 (1972)). This “question and answer” obfuscates the truth by assigning this Court’s opinion

in Yoder to a newly imagined and irrelevant question. In Yoder, this Court addressed whether the

State’s interest in “establishing and maintaining an

educational system overrides the defendant’s right

to the free exercise of their religion.” Yoder, 406 U.S.

at 213. This Court’s answer was, appropriately, a resounding, no. Id.

1. The State’s role in providing public education ranks at the apex of government

function, but it must yield to the fundamental rights of parents to direct the education of their children.

The majority below never reached this point in

its analysis, because it found no “cognizable burden

on their free exercise of religion.” Mahmoud, 102

F.4th at 211. As addressed supra, the decision below

is incompatible with the Free Exercise Clause.

Judge Quattlebaum, in his dissent, explains the fundamental flaw in Respondents’ policy. While Respondents contend the pre-school sex education

15

program reflects “the diversity of its community”

and allegedly “fosters inclusivity of students in the

LGBTQ+ community,” this Court has long held that

such purported goals cannot serve to override the

sincerely convictions of religious adherents.

Mahmoud, 102 F.4th at 227 (Quattlebaum, J., dissenting).

In Students for Fair Admissions, Inc. v. President

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

this Court determined that the “benefits” of “educating its student through diversity,” although a commendable goal, is “not sufficiently coherent for purposes of strict scrutiny.” Id. at 214. Likewise, here,

“[t]he board advances neither a compelling government interest nor a policy narrowly tailored to that

interest, [and] is likely to fail constitutional muster.”

Mahmoud, 102 F.4th at 227 (Quattlebaum, J., dissenting).

Courts rightly defer to schools to form curricula

to benefit pupils. And, the First Amendment was not

intended to turn this Court into ersatz deans or educators. Nevertheless, even legitimate pedagogical

interest are subservient to fundamental parental

rights in the constitutional pecking order. While education is paramount, and “[p]roviding public

schools ranks at the very apex of the function of a

State,” it must yield to the rights of parents to direct

the education of their children.” Yoder, 406 U.S. at

213.

This Court addressed this matter in Yoder.

There, the parents explained that education beyond

the eighth grade is “contrary to Amish beliefs” because, inter alia, it places “Amish children in an

16

environment hostile to Amish beliefs with increasing emphasis on competition in class work and

sports and with pressure to conform to the styles,

manners, and ways of the peer group,” during a “crucial and formative adolescent period of life.” Yoder,

406 U.S. at 211. The same concerns hold true for Petitioners here. The Board seeks to educate students

in pre-kindergarten through fifth grade about sex

and sexuality, transgenderism, sinful fetishes, and

the like, in an environment that degrades the purity

of the children in a manner directly contrary to the

parents’ faith. Mahmoud, 102 F.4th at 197-98. These

teachings subject children to the promotion of deadly

sins like lust, hedonism, and the worship of self over

a number of monotheistic deities, including the one

true Christian God. Respondents, with the imprimatur of the Fourth Circuit below, said such burdens

are no problem because it is necessary to ensure no

one who holds a different view is offended by Petitioner’s religious opposition to it.

Yoder demands a finding that exposing children

to worldly influences, like that contained in Respondents’ curriculum, substantially interferes with

the religious development of children and creates a

cognizable and substantial burden on religious free

exercise.

2. The First Amendment does not allow for

the sacrifice of families’ sincerely held religious beliefs or the conscription of children as creatures of the State.

The Fourth Circuit improperly circumscribes

Yoder into a “narrower principle,” concerning

“whether the challenged government action

17

‘affirmatively compel[led] them, under threat of

criminal sanction, to perform acts undeniably at

odds with fundamental tenets of their religious beliefs.’” Mahmoud, 102 F.4th at 211 (quoting Yoder,

406 U.S. at 218). Yoder is not so limited. Indeed, in

the very next breath, this Court held that the burden

on religion arose—not merely from threat of criminal sanction—but from the “very real threat of undermining the Amish community and religious practice.” Yoder, 406 U.S. at 218. The Fourth Circuit’s

diminution of the First Amendment protections in

Yoder would effectively eliminate parental rights in

education altogether by claiming no opt out is available for religious adherents unless the education policy poses a threat of criminal sanction. That is neither what Yoder said, nor what the First Amendment permits.

The Free Exercise Clause must be read to protect

American ideals and, most especially, “the central

values underlying the Religion Clauses in our constitutional scheme of government[.]” Yoder, 406 U.S.

at 233-34. “The First Amendment “cannot accept a

parens patriae claim of such all-encompassing scope

and with such sweeping potential for broad and unforeseeable application,” and in so doing sacrifice

families’ sincerely held religious beliefs. Id. To do so

would allow the State to “in large measure influence,

if not determine, the religious future of the child,” as

long as it is unaccompanied by threat of criminal

sanction. Yoder, 406 U.S. at 233-34. But, this Court

long ago rejected a claim that a “children is a mere

creature of the State,” Pierce v. Soc’y of Sisters, 258

U.S. 510, 534-45 (1925), rather, “those who nurture

him and direct his destiny have the right, coupled

18

with the high duty, to recognize and prepare him for

additional obligations.” Id.

Respondents go even further by attempting to

confine Yoder to a statement on the Amish. Resp’t

Br. in Opp’n 19. This overly strained reading of

Yoder is inconsistent with this Court’s decision and

cannot serve as a justification for restricting the free

exercise rights at issue here.

If this Court were to reduce Yoder to Respondent’s circumscribed version, and grant schools permission to invoke greater influence over children,

even at the detriment of parental rights, public education will begin to mimic the schools of Sparta. “In

order to submerge the individual and develop ideal

citizens, Sparta assembled the males at seven into

barracks and intrusted their subsequent education

and training to official guardians.” Meyer, 262 U.S.

at 402. Respondents endeavor even more austere

measures for better results, beginning their indoctrination at five-year-olds in pre-kindergarten classes.

“The fundamental theory of liberty upon which

all governments in this Union repose excludes any

general power of the state to standardize its children

by forcing them to accept instruction from public

teachers only.” Pierce, 268 U.S. 510 at 535. Despite

Respondents’ contentions to the contrary, these values, central to “our constitutional scheme of government” do not only reside within the walls of an

Amish settlement. Yoder, 406 U.S. at 232. Instead,

“[t]he essence of all that has been said and written

on the subject is that only those interests of the highest order and those not otherwise served can

19

overbalance legitimate claims to the free exercise of

religion.” Id. at 215.

Similar to the Amish in Yoder, the Muslim and

Christian Petitioners’ religious faiths and ways of

life, including abstaining from kindergarten sexual

education, are “inseparable and independent[ly]

rooted in religious belief,” and ones their “forbears

have adhered to for almost three centuries.” Id.

(cleaned up). Compared to the evidence in the record

below, the Amish’s three centuries of faith pales in

comparison to the Muslim’s two millennia old beliefs

and the Christian’s 5,785-year-old traditions. Chris

Jennewein, Rosh Hashanah 2024: Jewish New Year

5785 Begins at Sundown on Wednesday, Times of

San Diego (Oct. 1, 2024). 7 Traditions, both of which

far precede even the etymological history of the

phrases “transgender,” “gender ideology,” and

“LQBTQ+,” concepts even more recent than the development of artificial intelligence, let alone the

Christian Bible or Muhammad’s teachings. Alan M.

Turing, Computing Machinery and Intelligence,

Mind, Volume LIX, Issue 236, 433-460 (Oct. 1950).

Yet, somehow, that history escaped the Fourth Circuit below.

If the Court is searching for another way in which

to relate Amish faith and the Petitioners’ religious

beliefs, it may turn to Parker, which Respondents favorably cite throughout their brief. Resp’t Br. in

Opp’n 11; 15 (citing Parker, 514 F.3d at 100). In Parker, the First Circuit found two distinctions between

Available

at

https://timesofsandiego.com/life/2024/10/01/rosh-hashanah-2024-jewish-new-year5785-begins-at-sundown-on-wednesday/.

7

20

plaintiff’s faith and the Amish. First, “plaintiffs have

chosen to place their children in public schools.” Parker, 514 F.3d at 100. This first distinction is addressed in the next section as an impermissible

choice between a government benefit and religious

practice. The second distinction is that “[e]xposure

to the materials in dispute here will not automatically and irreversibly prevent the parents from raising Jacob and Joey in the religious belief that gay

marriage is immoral.” Id. (emphasis added).

In the present case, Respondents’ curriculum automatically and irreversibly prevents Christian Petitioners from raising their children in accordance

with their faith—which, even under Respondents’

logic should place this case squarely within Yoder’s

framework. The school’s curriculum, which prevents

Petitioners from following the requirements of their

faith by shielding their children from sexual education, makes it statistically unlikely these parents

will ever be able to re-direct their children towards

the LORD. 8 Respondents’ curriculum takes children

away from central tenants of the Bible “during the

crucial and formative adolescent period of life.”

Yoder, 406 U.S. at 211.

However, the law does not decide disputes based

on the age of a religion or the level to which the

State’s harm is irreversible, but rather it makes decisions by balancing the importance of societal interests. The impact of compulsory attendance on Petitioners’ religion, absent a legally required opt-out

program, is “not only severe, but inescapable,” for

the law compels the performance of acts “undeniably

8 See supra n.4 and accompanying text.

21

at odds with fundamental tenants of their religious

beliefs.” Yoder, 406 U.S. at 218. This is “the kind of

objective danger to the free exercise of religion that

the First Amendment was designed to prevent.” Id.

“And, 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.”

Id. at 233-34 (cleaned up).

Religious scruples of Moslems require

them to attend a mosque on Friday and

to pray five times daily. Religious scruples of a Sikh require him to carry a

regular or a symbolic sword. Religious

scruples of a Jehovah’s Witness teach

him to be a colporteur, going from door

to door, from town to town, distributing

his religious pamphlets. Religious scruples of a Quaker compel him to refrain

from swearing and to affirm instead.

Religious scruples of a Buddhist may

require him to refrain from partaking

of any flesh, even of fish. The examples

could be multiplied, including those of

Seventh-day Adventist whose Sabbath

is Saturday and who is advised not to

eat some meats.

Sherbert, 374 U.S at 411-12 (Douglas, J., concurring)

(internal citations omitted).

This Court should add that the religious scruples

of Christians and Muslims require that education

22

about sex, sexuality, and gender be discussed only in

the confines of the home and unquestionably later in

life than before kindergarten—before a child even

understands such concepts. The harm in this case is

Respondents’ interreference with the parents’ religious scruples, “an important area of privacy which

the First Amendment fences off from government.”

Id. at 412.

“We can accept it as settled, therefore, that, however strong the State’s interest in universal compulsory education, it is by no means absolute to the exclusion or subordination of all other interests.” Id.

Though this Court has determined public education

is at the apex of State priority, it has also plainly

held that such interest must nonetheless yield for

the religious beliefs of the Amish. That is no less true

here—where the parents just so happen to be Christian, Muslim, and Jewish. The First Amendment

protects all religious beliefs and is not contingent on

a particular religion or religious sect.

II.

Montgomery County Public Schools Has

Forced Parents to Choose Between Their

Sincerely Held Religious Beliefs and

Educating Their Children.

“Government may neither compel affirmation of

a repugnant belief, Torcaso v. Watkins, 367 U.S. 488

(1961), nor penalize or discriminate against individuals or groups because they hold religious views abhorrent to the authorities, Fowler v. State of R.I., 345

U.S. 67 (1953), nor employ the taxing power to inhibit the dissemination of particular religious views,

Murdock v. Com. Of Pennsylvania, 319 U.S. 105

(1943); Follett v. Town of McCormick, S.C., 321 U.S.

23

573 (1944); Grosjean v. Am. Press Co., 297 U.S. 233

(1936).” Sherbert, 374 U.S. at 402 (cleaned up).

The Fourth Circuit permitted Respondents to impose an ultimatum that violates two of these principles. Petitioners must either pull their children from

school or abandon their religious beliefs. This pressure to choose between religious exercise and government benefit impermissibly strains the free exercise of religion. The present case is another display

of the ever-increasing number of purportedly neutral and general applicable state actions that also

impose special disability based on religion, compel

affirmation of a repugnant belief, and/or penalize

the free exercise of faith. Such actions demand strict

scrutiny, and the Court should return the Free Exercise Clause to the blanket of protection provided

by “the most demanding test known to constitutional

law.” City of Boerne, 521 U.S. at 534.

A. The Pressure to choose between

religious exercise and government

benefits strains the free exercise of

religion.

From the outset of its opinion, the Fourth Circuit

defines “coercion” to include “direct or indirect” coercion, “meaning that a burden exists whenever government conduct either ‘compel[s] a violation of conscience’ or ‘put[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs.”

Mahmoud, 102 F.4th at 215. However, the Court

quickly circumvents this rule by stating that Respondents’ curriculum does not “bar[] religious adherents from eligibility to participate in the benefit

because of the plaintiff’s religious beliefs or unless

24

the plaintiff agreed to act in contradiction to his beliefs,” and it is thus not violative of the Free Exercise

Clause. Mahmoud, 102 F.4th at 215 (emphasis original) (citing Fulton v. Town of McCormick, S.C., 593

U.S. 522, 531 (2021)). This statement entirely dismisses this Court’s bar on “substantial pressure” to

“modify behavior” and “violate beliefs” mentioned on

the very same page of the Fourth Circuit’s opinion.

Id.

In light of the facts of this case, it is difficult to

ascertain the Fourth Circuit’s distinction between

the rule it defined and its holding. Respondents deliberately applied pressure on Petitioners by both

eliminating their ability to opt their children out of

education and simultaneously refusing to provide

notice of when controversial school materials would

be taught. Even if such a line can be drawn between

the level of pressure the Court requires to find a cognizable burden, and the burden imposed by Respondents, “free exercise law is not nearly as

cramped” as the Fourth Circuit attempts to portray.

Mahmoud, 102 F.4th at 223 (Quattlebaum, J., Dissenting).

That parents are not compelled to send their children to public school is no excuse for barring them

from this benefit “by state-imposed criteria forbidden by the Constitution.” McDaniel, 435 U.S. at 634

(Brennan, J., concurring). Instead, a cognizable burden exists when there is denial of “a generally available benefit on account of religious identity,” Trinity

Lutheran Church, 582 U.S. at 450, or “unmistakable” pressure to forego a religious practice in exchange for government benefit. Sherbert, 374 U.S. at

404.

25

In Trinity Lutheran Church, this Court confirmed that “denying a generally available benefit

solely on account of religious identity imposes a penalty on the free exercise of religion.” 582 U.S. at 450.

And “laws imposing ‘special disabilities on the basis

of … religious status’ trigger the strictest scrutiny.’”

Id. (quoting Lukumi, 508 U.S. at 533). The Fourth

Circuit evaded the plain import of Trinity Lutheran

Church by noting that parents are not required to

send their kids to public school. But does a choice

really exist for the modern family in Montgomery

County, Maryland?

“Private school in the United States is more expensive than it’s ever been,” recently hitting a “record-high $49,284, a 7.4 percent increase from last

year[.]” Tori Latham, Private-School Tuition in the

U.S. Hits a Record-High $49,284, Yahoo! Finance

(Feb. 12, 2025). 9 For Petitioners, this situation is

made worse in Maryland, one of the nation’s most

expensive states. “In Maryland, the median household income is $98,461, so your household would

have to bring in $170,666 to be considered one of the

upper members of the middle class.” Martin Dasko,

What is the Estimated Median Income for UpperMiddle Class in 2025?, Nasdaq (Feb. 16, 2025). 10

This “upper-middle class” standard is important for

this Court’s analysis because that is the income required to pay for “childcare for all of your children –

or for one spouse not to work” – essentially the required income for a homeschool alternative to

9 Available at https://finance.yahoo.com/news/private-school-

tuition-u-hits-220000848.html.

10 Available at https://www.nasdaq.com/articles/what-estimated-median-income-upper-middle-class-2025.

26

Montgomery County School Board’s pre-kindergarten sex education. Jennifer Taylor, Here’s the Minimum Salary Required To Be Considered Upper-Middle Class in 2025, Yahoo! Finance (Feb. 12, 2025). 11

This dramatic increase in the salary required to

support a family has led to a growing number of parents seeking employment, further reducing the possibility of removing children from public education.

“Among married-couple families with children, 97.6

percent had at least one employed parent in 2023,

and in 67.0 percent of these families both parents

were employed.” Bureau of Labor Statistics, U.S. Department of Labor, Employment Characteristics of

Families – 2023 (Apr. 24, 2024). 12

But leaving this significant practical reality

aside, whether parents are compelled to send their

kids to public school is of no constitutional significance because the First Amendment prohibits barring them from State benefit by state-imposed criteria forbidden by the Constitution.

In Sherbert, this Court made it clear that such

benefits cannot be restricted based on faith. There,

the appellant was denied unemployment benefits

due to her inability to work on Saturdays, a sincerely

held religious belief. 374 U.S. at 404. It was apparent to this Court that the appellant’s ineligibility for

employment benefits was derived solely from her religious practice. Id. (“The ruling forces her to choose

between following the precepts of her religion and

11 Available at https://finance.yahoo.com/news/minimum-sal-

ary-required-considered-upper-230037556.html

12

Available

at

https://www.bls.gov/news.release/pdf/famee.pdf.

27

forfeiting benefits, on the one hand, and abandoning

one of the precepts of her religion in order to accept

work, on the other hand.”). The appellant could have

easily denied disability benefits or chose to seek employment that did not require Saturday labor, but

neither point was critical for this Court. The State’s

actions could not “be saved from constitutional infirmity on the ground that unemployment compensation benefits are not appellant’s ‘right’ but merely a

‘privilege.’” Id. at 405. The Constitution provides

much broader support for the free exercise of religion, preventing “conditions upon public benefit … if

they so operate, whatever their purpose, as to inhibit

or deter the exercise of First Amendment freedoms.”

Id. at 405.

The Montgomery County School Board has given

Petitioners a choice – “additional costs” associated

with private school and/or home school, or public

schools with their concomitant prohibition on religious opt-outs, which the Fourth Circuit described

as “undeniably a ‘public benefit.’” Mahmoud, 102

F.4th at 215. “Governmental imposition of such a

choice puts the same kind of burden upon the free

exercise of religion as would a fine imposed against

appellant for her Saturday worship.” Sherbert, 374

U.S. at 404.

B. The exclusion of religious practitioners

from government benefit, or failure to

accommodate religious beliefs is

patent hostility toward, not neutrality

respecting, religion.

Petitioners do not seek special benefit, nor do

they accept neutrality as sufficient free exercise

28

protection. They seek a constitutionally mandated

accommodation and the abandonment of constitutionally prohibited hostility toward their religion.

In Trinity Lutheran Church, a church daycare

was denied use of a State’s Scrap Tire Program to

replace a large portion of their playground’s gravel

with pour-in-place rubber surface provided by the

program. Trinity Lutheran Church, 582 U.S. at 449.

“The Department had a strict and express policy of

denying grants to any applicant owned or controlled

by a church, sect, or other religious entity.” Id. Trinity Lutheran Church was not claiming any benefit

but was asserting “a right to participate in a government benefit program without having to disavow its

religious character.” Id. at 465. This Court deemed

the policy “express discrimination against religious

exercise, and said, “the State’s decision to exclude it

for purposes of this public program must withstand

the strictest scrutiny.” Id.

Like the petitioners in Trinity Lutheran Church,

the parents here are not claiming any entitlement or

subsidy, rather they are asserting a right to participate in a government benefit program without having to disavow their religion. These cases are virtually indistinguishable in all practical effects, but

that did not stop the Fourth Circuit from attempting

one.

The Fourth Circuit stated, “while the Free Exercise Clause casts a wide net of protection, it does so

in a particular direction, being written in terms of

what the government cannot do to the individual,

not in terms of what the individual can extract from

the government.” Mahmoud, 102 F.4th at 205

29

(cleaned up). “Never to our knowledge has the Court

interpreted the First Amendment to require the

Government itself to behave in ways that the individual believes will further his or her spiritual development or that of his or her family.” Id. This is

nonsense. For one, the parents are attempting to extract nothing from the government. Rather, Petitioner are seeking merely to extract themselves from

a government curriculum violative of their sincere

religious convictions. In other words, Petitioners

seek a protection “in terms of what the government

cannot do to” Petitioners—namely, demand they

submit their children to objectionable sexual contents at 5 years old.

“For decades, the Supreme Court has made clear

that the liberties of religion and expression may be

infringed by the denial of or placing of condition

upon a benefit or privilege.” Mahmoud, 102 F.4th at

221 (Quattlebaum, J., dissenting). The exclusion of

a religion’s followers from a state benefit, or the failure to accommodate the religious needs of religious

participants in a public benefit, “manifests patent

hostility toward, not neutrality respecting, religion[.]” McDaniel, 435 U.S. at 636 (Brennan, J., concurring). And, in fact, the First Amendment requires

that Respondents provide such recognition. Zorach

v. Clauson, 343 U.S. 306, 313 (1952). “To hold that it

may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups.” Id.

Indeed, as the Court has recognized, “we find no

constitutional requirement which makes it necessary for government to be hostile to religion and to

throw its weight against efforts to widen the

30

effective scope of religious influence.” Id. And, more

than that, the First Amendment demands not mere

tolerance, but affirmative accommodation and protection for Petitioners’ religious beliefs.

III. Employment Division v. Smith Fails to

Prevent Government Actions that Both

Directly and Indirectly Interfere with the

Free Exercise of Religion, Whereas

Sherbert

Protects

Against

Facially

Neutral State Action that Burdens the

Free Exercise of Religion.

Respondents have expressly discriminated

against religious exercise, denied a public benefit on

the basis of religion, and undermined the Free Exercise Clause, all while purportedly complying with

Smith by not “directly or indirectly coerc[ing] children into changing their religious views or practices.” Mahmoud, 102 F.4th at 213. The “proposition

– that the law does not interfere with free exercise

because it does not directly prohibit religious activity, but merely conditions eligibility for office on its

abandonment – is squarely … rejected by precedent.” McDaniel, 435 U.S. at 633 (Brennan, J., concurring). Smith should be similarly rejected and

abandoned.

A. The First Amendment’s Free Exercise

Clause has been demoted to a secondary

non-discrimination clause, rather than

applied, as intended, to prohibit the

infringement of religious liberty by civil

authority.

Pursuant to Smith, if a state action is “neutral”

and of “general applicability,” unless it more than

31

incidentally burdens a religion, it is likely free to restrict the exercise of that religion. Emp. Div., Dep’t

of Human Res. v. Smith, 494 U.S. 872, 879 (1990).

Smith fails to adequately protect the free exercise of

religion, and its requirement that State action directly coerce faith in order to trigger strict scrutiny,

reduces the Clause to a second and weaker Establishment Clause.

This Court in Smith declined to “breathe into

Sherbert some life beyond the unemployment compensation field,” instead choosing to merge the Free

Exercise and Establishment Clauses, by replacing

strict scrutiny with the rational basis test for all

neutral and generally applicable state action. Smith,

494 U.S. at 884. This represented an unfortunate

erosion of the Religion Clauses.

Prior to Smith this Court went to great lengths

to distinguish the two clauses, the later, “considered

many times here, withdraws from legislative power,

state and federal, the exertion of any restraint on the

free exercise of religion.” Sch. Dist. of Abington Twp.,

Pa. v. Schempp, 374 U.S. 203, 222-223 (1963) .“The

Religion Clauses of the First Amendment provide:

‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise

thereof.’ . . . [T]he Free Exercise Clause – requires

government respect for, and noninterference with,

the religious beliefs and practices of our Nation’s

people.” Cutter, 544 U.S. at 714 (citing Locke v.

Davey, 540 U.S. at 718; Walz v. Tax Comm’n of City

of New York, 397 U.S. at 668).

The purpose of the Free Exercise Clause is “to secure religious liberty in the individual by prohibiting

32

any invasions thereof by civil authority.” Id. (emphasis added). This would inevitably include the Board’s

compelled education, which clearly invades Petitioners’ faith.

B. The requirement that Government

action be “neutral” does not prevent

Government

action

from

unconstitutionally

interfering

with

religion.

This Court has two choices – continue down the

bumpy and constitutionally dubious road of mere

non-discriminatory “neutrality” paved by Smith, or

it can reverse course and return to a firm foundation

that requires “forbidding or hindering unrestrained

religious practices or worship.” Fulton, 593 U.S. at

565 (Alito, J., concurring).

The Fourth Circuit improperly, and without supporting precedent, redefines the range of permissible

cognizable burdens on religious exercise. Mahmoud,

102 F.4th at 207. This opportunity for this error

would be eliminated if this Court relied on Sherbert

instead of allowing lower courts the opportunity to

creatively define “cognizable burden.” Instead, the

Fourth Circuit turned to Smith and stated, “to show

a cognizable burden, the Parents must show that the

absence of an opt-out opportunity coerces them or

their children to believe or act contrary to their religious views.” Id. That is simply incorrect. The Free

Exercise Clause does not require children be lured

off the gender-ideology cliff by the State’s

transgender pied piper before there is harm. The

First Amendment gives parents the right to prevent

the harm from ever occurring.

33

This Court correctly articulated the broad

bounds of the Free Exercise Clause and the low bar

for “cognizable burdens” in Masterpiece Cake Shop.

“The Constitution ‘commits government itself to religious tolerance, and upon even slight suspicion

that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty

to the Constitution and to the rights it secures.’”

Masterpiece Cakeshop, 584 U.S. at 638 (quoting

Lukumi, 508 U.S. at 534).

This Court’s Smith opinion warps that commission, instead asking religion to bend to the will of the

State. Smith reduces religion to convictions that can

neither contradict political society nor relieve the

faithful “‘from the discharge of political responsibility.’” Smith, 494 U.S. at 879-80 (quoting Minersville

Sch. Dist. v. Gobitis, 310 U.S. 586, 594-95 (1940)).

Whereas Sherbert recognizes a broader free exercise

protection that prevents State action that burdens

the free exercise of religion absent “‘compelling state

interest in the regulation of a subject within the

State’s constitutional power to regulate.’” Sherbert v.

Verner, 374 US. 398, 403 (1963) (quoting National

Ass’n for Advancement of Colored People v. Button,

371 U.S. 415, 438 (1963)).

Furthermore, under Sherbert, “if the purpose or

effect of a law is to impede the observation of one or

all religions or is to discriminate invidiously between

religions, that law is constitutionally invalid even

though the burden may be characterized as being indirect.” Id. at 404 (quoting Braunfeld v. Brown, supra, 366 U.S. 599, 607 (1961)). And, Sherbert recognizes that “liberties of religion and expression may

34

be infringed by the denial of or placing of conditions

upon a benefit or privilege.” Id. (citing American

Communications Ass’n v. Douds, 339 U.S. 382, 390

(1950); Wieman v. Upddegraff, 344 U.S. 183, 191-92

(1952); Hannegan v. Esquire, Inc., 327 U.S. 146, 155

(1946)).

The Court should restore the Free Exercise

Clause to its original purpose, presupposing the freedom to practice religion, and requiring States that

attempt to interfere with that practice, whether indirectly, with neutral and generally applicable laws,

or through the restriction of a public benefit, prove

the interest is of sufficient magnitude to override the

free exercise of religion. This Court should overrule

Smith and restore the Free Exercise Clause to its

rightful position.

CONCLUSION

The decision below should be reversed.

Respectfully submitted.

ANITA L. STAVER

HORATIO G. MIHET

DANIEL J. SCHMID

AVERY B. HILL

LIBERTY COUNSEL

P.O. Box 540774

Orlando, FL 32854

MATHEW D. STAVER

Counsel of Record

LIBERTY COUNSEL

109 Second Street NE

Washington, D.C. 20002

(202) 289-1776

court@lc.org

MARCH 2025

Counsel for Amicus