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

Supreme Court briefMar 10, 2025

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No. 24-297

IN THE

Supreme Court of the United States

————

TAMER MAHMOUD, ET AL.,

Petitioners,

THOMAS W. TAYLOR, ET AL.,

Respondents.

————

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

————

BRIEF OF THE CHURCH OF JESUS CHRIST

OF LATTER-DAY SAINTS; UNITED STATES

CONFERENCE OF CATHOLIC BISHOPS;

THE ETHICS AND RELIGIOUS LIBERTY

COMMISSION OF THE SOUTHERN BAPTIST

CONVENTION; THE LUTHERAN CHURCH –

MISSOURI SYNOD; THE GENERAL

CONFERENCE OF SEVENTH-DAY

ADVENTISTS; THE ANGLICAN CHURCH

IN NORTH AMERICA; THE ORTHODOX

CHURCH IN AMERICA; THE DIOCESE OF

EASTERN AMERICA OF THE SERBIAN

ORTHODOX CHURCH; THE COALITION

FOR JEWISH VALUES; AND THE JEWISH

COALITION FOR RELIGIOUS LIBERTY AS

AMICI CURIAE SUPPORTING PETITIONERS

————

GENE C. SCHAERR

HANNAH C. SMITH

SCHAERR|JAFFE LLP

1717 K Street NW

Suite 900

Washington, DC 20006

(202) 787-1060

R. SHAWN GUNNARSON

Counsel of Record

CHRISTOPHER A. BATES

JAROM M. HARRISON

DONALD N. LUNDWALL

KIRTON | MCCONKIE

36 South State Street

Suite 1900

Salt Lake City, Utah 84111

(801) 328-3600

sgunnarson@kmclaw.com

Counsel for Amici Curiae

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

TABLE OF CONTENTS

Page

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

iii

INTRODUCTION AND INTERESTS OF

AMICI CURIAE ...............................................

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

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

PETITIONERS’ RELIGIOUS OBJECTIONS

TO THE COUNTY PROGRAM REFLECT

WIDESPREAD RELIGIOUS BELIEFS AND

PRACTICES ..................................................

A. Petitioners’ Objections Are Rooted

in Sincere Religious Beliefs About

Parental Duty, Sexuality, and

Gender..................................................

B. Petitioners’ Religious Beliefs Reflect

Mainstream

Religious

Faiths

Cherished by Many Americans ...........

1. Many diverse religions believe that

parents have a religious duty to

guide their children regarding

sexuality and gender ......................

2. Many diverse religions share

petitioners’ belief that sexual

expression belongs only between a

married man and woman ..............

3. Many diverse religions share

petitioners’ belief that gender is a

function of biological sex ................

(i)

TABLE OF CONTENTS—Continued

Page

II.

DIRECT COERCION IS NOT A NECESSARY

CONDITION FOR JUDICIAL PROTECTION

UNDER THE FREE EXERCISE CLAUSE .........

A. The First Amendment Guarantees

the “Free Exercise” of Religion—Not

Merely the Freedom from Government

Coercion ................................................

B. Treating Coercion as a Necessary

Condition Under the Free Exercise

Clause Conflicts with Decisions

Under the Establishment Clause .......

III. THE CONTESTED STORYBOOK PROGRAM

IMPOSES A SUBSTANTIAL BURDEN ON

PETITIONERS’ RIGHTS UNDER THE FREE

EXERCISE CLAUSE ......................................

A. MCPS

Has

Directly

Burdened

Petitioners’ Right to Direct their

Children’s Religious Education...........

B. Notice and Opt-Out Allow Public

Schools to Deliver Controversial

Content on Sexuality and Gender

While Respecting Parents’ First

Amendment Rights..............................

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

iii

TABLE OF AUTHORITIES

CASES

Page(s)

Abington Sch. Dist. v. Schempp,

374 U.S. 203 (1963) ............................. 17, 18, 19

Bauchman v. W. High Sch.,

132 F.3d 542 (10th Cir. 1997)...................

Bellotti v. Baird,

443 U.S. 622 (1979) ...................................

Cantwell v. Connecticut,

310 U.S. 296 (1940) .......................................

Carey v. Population Servs., Int’l,

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

Edwards v. Aguillard,

482 U.S. 578 (1987) ...................................

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

Smith,

494 U.S. 872 (1990) ................................... 11, 22

Engel v. Vitale,

370 U.S. 421 (1962) ............................. 17, 18, 19

Epperson v. Arkansas,

393 U.S. 97 (1968) .....................................

Espinoza v. Mont. Dep’t of Revenue,

591 U.S. 464 (2020) ...................................

Fleischfresser v. Dirs. of Sch. Dist. 200,

15 F.3d 680 (7th Cir. 1994).......................

Food Mktg. Inst. v. Argus Leader Media,

588 U.S. 427 (2019) ...................................

Fulton v. City of Philadelphia,

593 U.S. 522 (2021) ...................................

TABLE OF AUTHORITIES—Continued

Page(s)

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) ................................... 16, 20

Lee v. Weisman,

505 U.S. 577 (1992) ............................. 18, 19, 23

Masterpiece Cakeshop, Ltd. v. Colo. Civil

Rights Comm’n,

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

McCollum v. Bd. of Educ.,

333 U.S. 203 (1948) ................................... 17, 19

Meyer v. Nebraska,

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

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

827 F.2d 1058 (6th Cir. 1987) .................. 23, 26

Parker v. Hurley,

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

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

Names of Jesus & Mary,

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

Sherbert v. Verner,

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

Shurtleff v. City of Boston,

596 U.S. 243 (2022) ................................... 26–27

Stone v. Graham,

449 U.S. 39 (1980) .....................................

Thomas v. Rev. Bd. of Ind. Emp’t

Sec. Div.,

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

TABLE OF AUTHORITIES—Continued

Page(s)

Tinker v. Des Moines Indep. Cmty. Sch.

Dist., 393 U.S. 503 (1969) ......................... 22–23

Troxel v. Granville,

530 U.S. 57 (2000) .....................................

Wisconsin v. Yoder,

406 U.S. 205 (1972) ................... 4, 15–16, 21, 22

CONSTITUTION

U.S. Const. amend. I .................................... 12, 23

STATUTES

Fla. Stat. § 1001.42(8)(c)(3) ............................

Ohio Rev. Code Ann. § 3313.473(E). ............

S.C. Code § 59-32-50.....................................

Va. Code § 22.1-207.1(B) ..............................

Va. Code § 22.1-207.2 ...................................

W. Va. Code § 18-2-9(c) ................................

REGULATIONS

Code Md. Reg. § 13A.04.18.01(D)(2)(e)(i) .... 26, 28

COURT FILINGS

Defs.-Appellees’

Br.,

Mahmoud

McKnight, No. 23-1890 (4th Cir. Oct. 24,

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

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES

Page(s)

Al-Adab Al-Mufrad (2018)............................

Catechism of the Catholic Church (USCCB

2d ed. 2019) ............................................. 5, 8, 10

G.K. Chesterton, What’s Wrong with the

World (8th ed. 1910) ................................. 21–22

The Church of Jesus Christ of Latter-day

Saints, General Handbook: Serving in

The Church of Jesus Christ of Latter-day

Saints ........................................................ 7, 11

Congregation for Catholic Education, Male

and Female He Created Them: Towards a

Path of Dialogue on the Question of

Gender Theory in Education (2019) .........

Declaration of the Dicastery for the Doctrine

of the Faith: Dignitas Infinita (Apr. 8,

2024) ..........................................................

Derech Project, Sex and Relationships

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

Federal and State Constitutions, Colonial

Charters, and Other Organic Laws of the

United States (Benjamin Perley Poore

ed., 2d ed. 1878) ........................................ 12–13

The First Presidency and Council of the

Twelve Apostles of The Church of Jesus

Christ of Latter-day Saints, The Family:

A Proclamation to the World (Sept. 23,

1995) .......................................................... 9, 11

The Founders’ Constitution (Philip B.

Kurland & Ralph Lerner eds., 1987) .......

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Holy Bible ......................................... 5, 7, 8, 10, 11

Holy Synod of Bishops of the Orthodox

Church in America, Synodal Affirmations

on Marriage, Family, Sexuality, and the

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

Kecia Ali & Oliver Leaman, Islam: The Key

Concepts (2008) ......................................... 9–10

Man, Woman, and Priesthood (Peter Moore

ed., 1978) ...................................................

Melody Alemansour et al., Sex Education in

Schools, XX Geo. J. Gender & L. 467

(2019) .........................................................

Michael W. McConnell, The Origins and

Historical Understanding

of Free

Exercise of Religion, 103 Harv. L. Rev.

1409 (1990) ................................................

Mikraos Gedolos (Rabbi Yaakov Menken

trans., 1971) ..............................................

Navigating Differences: Clarifying Sexual

and Gender Ethics in Islam (May 23,

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

Philip Rieff, The Triumph of the

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

Pope John Paul II, Apostolic Exhortation:

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

Pope Paul VI, Dogmatic Constitution on the

Church: Lumen Gentium (Nov. 21, 1964)

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Privileged Communications to Clergymen,

1 Catholic Law. 199 (1955) ....................... 14, 15

Qur’an ...........................................................

4–5

Rabbi Tzvi Hersh Weinreb, Orthodox

Response to Same-Sex Marriage (June 5,

2006) ..........................................................

Siti Suhaila Ihwani et al., Sex Education:

An Overview from Quranic Approach, 1 J.

Quran Sunnah Educ. & Special Needs,

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

Southern Baptist Convention, Baptist Faith

& Message 2000 (June 14, 2000) ............ 7, 8, 10

Standing Conference of the Canonical

Orthodox Bishops in the Americas,

Statement on Moral Crisis in Our Nation

(Aug. 27, 2003) .................................. 8–9, 10–11

Statement of the Holy See, Beijing

Declaration and Platform for Action

(1996) .........................................................

The Writings of James Madison (Gaillard

Hunt ed., 1901) ......................................... 13–14

INTRODUCTION AND

INTERESTS OF AMICI CURIAE 1

The Constitution’s guarantee of religious freedom

includes the right of parents to decide how to educate

their children in the religiously significant matters of

sexuality and gender. Montgomery County Public

Schools (MCPS) has violated that right by denying

petitioners notice or an opportunity to remove their

children from a novel program teaching young students

LGBT-related topics from a viewpoint hostile to

traditional religion. Amici are religious organizations

with an overwhelming interest in the vigorous

application of the Constitution’s guarantee of religious

freedom. We urge the Court to reverse the Fourth

Circuit and to hold that petitioners have suffered a

burden on their free exercise of religion for which the

First Amendment requires relief.

SUMMARY OF ARGUMENT

The right of parents to transmit their religious faith

to their own children is one of the ancient landmarks

of our law. Without that right, no religion can survive

to the next generation. Yet Montgomery County has

violated that right by pursuing a novel reading

program that seeks to indoctrinate young children into

the County’s viewpoint on sexuality and gender

without accommodating objecting religious parents.

The Fourth Circuit affirmed the County’s position on

the extraordinary ground that the reading program

imposes no burden on the parents’ exercise of religion.

Pursuant to Supreme Court Rule 37.6, amici state that no

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

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

their counsel, made any monetary contribution toward the

preparation or submission of this brief.

That holding is wrong and should be reversed for all

the reasons expressed in petitioners’ briefs. We add

three arguments of our own.

First, petitioners’ objections to the Pride Storybooks

reading program arise from sincere religious beliefs

and practices. These parents sincerely believe that

they have a religious duty to guide their children

regarding sexuality and gender; that sexuality is

properly expressed only between a man and a woman

who are married; and that gender is exclusively a

function of biological sex. These beliefs are not the

province of a hard-to-accommodate minority. Diverse

religious denominations, Catholic and Protestant, The

Church of Jesus Christ, Jewish and Muslim—all teach

religious doctrines closely resembling those cherished

by petitioners. They merely ask for the same opt-out

rights long granted by Montgomery County for such

sensitive matters.

Second, actual coercion is not the sine qua non of a

valid claim under the Free Exercise Clause. Pressure

to abandon or change one’s religious beliefs or

practices is sufficiently burdensome to support a free

exercise claim. So is interference with efforts to

transmit one’s faith to others. This Court’s decisions

consistently teach that the Free Exercise Clause

protects the freedom to practice religion—not merely

the freedom from direct government coercion.

Third, petitioners suffer a substantial burden on

their religious exercise because of Montgomery

County’s Pride Storybook program and the County’s

refusal to accommodate parents’ religious objections.

Without accommodation, Maryland’s compulsory

attendance law requires petitioners’ children to attend

classes where sexuality and gender are presented in

ways contrary to the religious precepts petitioners

teach at home. Disrupting the parent-child relationship

on matters of religious significance such as sexuality

and gender poses an exceptionally serious burden on

the exercise of religion. And petitioners’ demand for

accommodation takes the modest form of prior notice

when their children’s teachers will be discussing

Storybooks from the reading program and an

opportunity for their children, on those occasions, to be

excused. That request is fully consistent with similar

laws in Maryland and elsewhere that strike sensible

balances between the educational judgments of publicschool officials and the religious judgments of parents.

In short, petitioners present a compelling claim for

relief under the Free Exercise Clause. Montgomery

County’s denial that its Storybook program interferes

with the parents’ exercise of religion is implausible.

Because the County lacks any compelling reason not

to accommodate petitioners’ religious objections, they

are entitled to the accommodations they seek.

ARGUMENT

I. PETITIONERS’ RELIGIOUS OBJECTIONS TO THE

COUNTY PROGRAM REFLECT WIDESPREAD

RELIGIOUS BELIEFS AND PRACTICES.

Like the amici, petitioners represent diverse religions.

And like the amici, despite theological differences,

petitioners’ religious beliefs about marriage, sexuality,

and gender, and about parents’ religious duty to guide

their children, closely resemble each other. These

mutually overlapping beliefs are at the root of

petitioners’ objections to Montgomery County’s reading

program. By refusing to respect these beliefs, the

County has burdened petitioners’ exercise of religion

in a way that entitles them to relief under the Free

Exercise Clause. 2

A. Petitioners’ Objections Are Rooted in

Sincere

Religious

Beliefs

About

Parental Duty, Sexuality, and Gender.

1. Petitioners Tamer Mahmoud and Enas Barakat

are Muslims who consider themselves under a “sacred

obligation” to teach their children how religion informs

their understanding of marriage, sex, and gender.

App.531a Tamer and Enas say the Pride Storybooks

“directly undermine our efforts to raise our elementaryaged children in accordance with our faith.” Id. at 532a.

Petitioners Jeff and Svitlana Roman share similar

convictions. Jeff is Catholic and Svitlana is Ukrainian

Orthodox. They affirm, with respect to their beliefs

about marriage, sexuality, and gender, that they “have

a sacred obligation to teach these principles to our

son.” Id. at 538a.

Chris and Melissa Persak are Catholic and echo the

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

their children how Catholic beliefs shape their

understanding of sexuality and gender. Id. at 543a.

2. On matters of sexuality, Tamer and Enas believe

that “sex and sexuality are sacred gifts from God to be

expressed through the forming of a spiritual, marital

bond between spouses—one male and one female—

for the shared promise of security, tranquility,

The Free Exercise Clause protects the religious freedom of

both parents and children. See Wisconsin v. Yoder, 406 U.S. 205,

215–19 (1972). Here, the parents assert free exercise rights on

behalf of themselves and their children. See App.162a–163a.

compassion, contentment, and joy. Surah al-A’raf

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

The Romans likewise believe that “human sexuality

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

expressed only in marriage between a man and a

woman for creating life and strengthening the marital

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

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

The Persaks espouse similar Catholic beliefs. To

them, “following God’s commandments for marriage

and family is not only necessary for raising the next

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

to human flourishing and happiness. See John 8:51,

14:21, 15:10.” Id. at 543a.

3. On gender issues, Tamer and Enas also believe

that “as taught by the Qu’ran * * * mankind has been

divinely created as male and female, Surah al-Hujurat

49:13.” Id. at 530a. And “as a general rule, Islam

strictly prohibits medical procedures that attempt to

alter the sex of a healthy person” unless it is “medical

care” for “biological ambiguities.” Id. at 531a.

The Romans also believe that “a person’s biological

sex is not arbitrary, but rather a gift bestowed by God

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

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

See Genesis 5:2; Catechism of the Catholic Church,

§ 2393.” Id. at 536a.

The Persaks likewise believe that “all humans are

created as male or female, and that a person’s

biological sex is a gift bestowed by God that is both

unchanging and integral to that person’s being.

See Genesis 5:2.” Id. at 543a.

B. Petitioners’ Religious Beliefs Reflect

Mainstream Religious Faiths Cherished

by Many Americans.

1. Many diverse religions believe that parents

have a religious duty to guide their

children regarding sexuality and gender.

Petitioners’ statements of faith reflect not only

their own religious commitments, but religious beliefs

cherished by many other faith communities, including

amici.

Consider Islam. It recognizes the duty of parents to

guide their children. The Prophet Muhammad taught:

“All of you are shepherds and each of you is responsible

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

house and he is responsible. A woman is the shepherd

of the house of her husband and she is responsible.” AlAdab Al-Mufrad, Book 10, Hadith 212 (2018). Muslims

understand this teaching to encompass an obligation

to teach children regarding gender and sexuality. See

Siti Suhaila Ihwani et al., Sex Education: An Overview

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

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

In a similar vein, Roman Catholics understand the

family as “the domestic church. In it parents should,

by their word and example, be the first preachers of

the faith to their children.” Pope Paul VI, Dogmatic

Constitution on the Church: Lumen Gentium, para. 11

(Nov. 21, 1964). Pope John Paul II taught that “[s]ex

education, which is a basic right and duty of parents,

must always be carried out under their attentive

guidance, whether at home or in educational centers

chosen and controlled by them.” Pope John Paul II,

Apostolic Exhortation: Familiaris Consortio, para. 37

(Nov. 22, 1981).

Orthodox Christians believe in the sanctity of the

family and affirm that parents are charged with sacred

duties toward their children to “bring them up in the

discipline and instruction of the Lord (Ephesians 6:4).”

Holy Synod of Bishops of the Orthodox Church in

America, Synodal Affirmations on Marriage, Family,

Sexuality, and the Sanctity of Life, para. 48 (July 1992).

Southern Baptists believe that “[p]arents are to

teach their children spiritual and moral values and to

lead them, through consistent lifestyle example and

loving discipline, to make choices based on biblical

truth.” Southern Baptist Convention, Baptist Faith &

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

The Church of Jesus Christ of Latter-day Saints

declares that “[p]arents have primary responsibility

for the sex education of their children. Parents should

have honest, clear, and ongoing conversations with

their children about healthy, righteous sexuality.” The

Church of Jesus Christ of Latter-day Saints, General

Handbook: Serving in The Church of Jesus Christ of

Latter-day Saints § 38.6.17 (Handbook).

Jewish teachings follow a similar pattern. The

Shema prayer includes this instruction: “And you shall

teach them diligently to your children.” Devarim

(Deuteronomy) 6:7. As the commentary of Moses

Nachmanides explains, “this expressed commandment

was implied previously [where the Torah says your

children must know the laws and the Covenant] * * *

how were they to know if we did not teach them?”

Commentary of Nachmanides, in 5 Mikraos Gedolos

85–86 (Rabbi Yaakov Menken trans., 1971). Jews today

understand these ancient commands as an important

duty for parents to guide children on matters of

gender and sexuality. See Derech Project, Sex and

Relationships Education in Jewish Schools 11 (2006).

2. Many diverse religions share petitioners’

belief that sexual expression belongs only

between a married man and woman.

Petitioners’ beliefs about sexuality are also shared

by many large faith groups, including amici.

A consensus among Islamic scholars holds that

sexuality belongs only within marriage. “By a decree

from God, sexual relations are permitted within the

bounds of marriage, and marriage can only occur

between a man and a woman. * * * Moreover,

premarital and extramarital sexual acts are prohibited

in Islam.” Navigating Differences: Clarifying Sexual and

Gender Ethics in Islam (May 23, 2023).

Roman Catholics believe that “Holy Scripture

affirms that man and woman were created for one

another. ‘It is not good that the man should be alone.’”

Catechism of the Catholic Church § 1605 (USCCB 2d

ed. 2019) (Catechism). Marriage is exclusively between

one man and one woman. See id. § 1601.

Southern Baptists believe that “[m]arriage is the

uniting of one man and one woman in covenant

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

intimate companionship, the channel of sexual

expression according to biblical standards, and the

means for procreation of the human race.” Baptist

Faith & Message 2000, art. XVIII.

So too for Orthodox Christians, who believe that

“[t]he union between a man and a woman in the

Sacrament of Marriage reflects the union between

Christ and His Church (Ephesians 5:21–33). As such,

marriage is necessarily monogamous and heterosexual.

Within this union, sexual relations between a husband

and wife are to be cherished and protected as a sacred

expression of their love that has been blessed by God.”

Standing Conference of the Canonical Orthodox

Bishops in the Americas, Statement on Moral Crisis in

Our Nation, para. 4 (Aug. 27, 2003) (Moral Crisis). 3

The Church of Jesus Christ of Latter-day Saints

“solemnly proclaim[s] that marriage between a man

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

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

His children.” The First Presidency and Council of the

Twelve Apostles of The Church of Jesus Christ of

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

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

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

commanded that the sacred powers of procreation are

to be employed only between man and woman,

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

Within Jewish tradition, “Judaism recognizes the

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

family as the vital institution in shaping the entire

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

marriage is a model not only for human relations but

for relations with the Divine.” Rabbi Tzvi Hersh

Weinreb, Orthodox Response to Same-Sex Marriage,

para. 4 (June 5, 2006).

3. Many diverse religions share petitioners’

belief that gender is a function of

biological sex.

Petitioners’ beliefs about gender are also common

among large faith communities, including amici.

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

humanity is divided into male and female and that sex

Although the Standing Conference has been replaced, this

organizational change has no effect on the validity of the Statement on

Moral Crisis as a correct expression of Orthodox beliefs.

or gender is a defining characteristic of human

experience is firmly embedded into the Muslim

worldview.” Kecia Ali & Oliver Leaman, Islam: The Key

Concepts 42 (2008) (emphasis omitted).

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

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

man and woman possess an inalienable dignity which

comes to them immediately from God their Creator.”

Catechism § 369. The Holy See understands the term

gender as grounded in biological sexual identity,

male or female. Statement of the Holy See, Beijing

Declaration and Platform for Action (1996). The

Church acknowledges that “biological sex and the

socio-cultural role of sex (gender) can be distinguished

but not separated.” Declaration of the Dicastery for the

Doctrine of the Faith: Dignitas Infinita, para. 59 (Apr.

8, 2024). At the same time, the Catholic Church

recognizes that “[i]n this cultural context, it is clear

that sex and gender are no longer synonyms or

interchangeable concepts, since they are used to

describe two different realities.” Congregation for

Catholic Education, Male and Female He Created

Them: Towards a Path of Dialogue on the Question of

Gender Theory in Education, para. 11 (2019)

(emphasis omitted).

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

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

them male and female as the crowning work of His

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

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

art. III.

And Orthodox Christian tradition holds that “God

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

Moral Crisis, para. 3. People with gender identity

conflicts “are to be cared for with the same mercy and

love that is bestowed by our Lord Jesus Christ upon

all of humanity.” Id. at para. 5.

The Church of Jesus Christ of Latter-day Saints

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

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

essential characteristic of individual premortal,

mortal, and eternal identity and purpose.” Family

Proclamation, para. 2. “Gender” is authoritatively

defined as “biological sex at birth.” Handbook § 38.6.23.

Traditional Judaism understands personal identity

as eternally male or female. The Torah records, “And

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

Created him, male and female He created them.”

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

Women in Judaism, in Man, Woman, and Priesthood

27, 29 (Peter Moore ed., 1978) (“Man as such—and

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

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

of the covenant between God and all humanity.”).

Petitioners’ objections to MCPS’s new reading

program thus reflect religious beliefs that are broadly

consistent with each other and mutually reinforced by

religious beliefs common among all Abrahamic faiths.

Those beliefs are not the preserve of an eccentric or

hard-to-accommodate minority. They are the honest

convictions of men and women trying to rear their

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

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

(recognizing that the Free Exercise Clause guards

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

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

II. DIRECT COERCION IS NOT A NECESSARY

CONDITION FOR JUDICIAL PROTECTION UNDER

THE FREE EXERCISE CLAUSE.

Requiring petitioners’ children to participate in the

MCPS Storybook program creates obvious burdens on

petitioners’ ability to transmit their faith to their

children. Yet the Fourth Circuit concluded there was

no burden on petitioners’ religious exercise because

the program does not “coerce[]” petitioners or their

children “to believe or act contrary to their religious

faith.” App.49a. But explicit coercion is not required for

a claim under the Free Exercise Clause. And the

Fourth Circuit’s holding to the contrary cannot be

reconciled with this Court’s Establishment Clause

decisions striking down religious content in schools

even when schools provide robust prior notice and

opportunity to opt out.

A. The First Amendment Guarantees the

“Free Exercise” of Religion—Not Merely

the Freedom from Government Coercion.

1. The Free Exercise Clause protects the “free

exercise” of religion, not merely freedom from direct

government coercion. U.S. Const. amend. I (emphasis

added). Colonial and early State protections for religious

freedom confirm this understanding. In 1649, Maryland

adopted the first colonial law securing the free exercise

of religion. It provided that “no person* * * professing

to believe in Jesus Christ, shall from henceforth be any

ways troubled * * * for * * * his or her religion nor in

the free exercise thereof.” Act Concerning Religion of

1649 (spelling modernized), reprinted in 5 The

Founders’ Constitution 49, 50 (Philip B. Kurland &

Ralph Lerner eds., 1987). Rhode Island’s 1663 charter

similarly protected residents from being “in any wise

molested, punished, disquieted, or called into question,

for any differences in opinion in matters of religion,

[who] do not actually disturb the civil peace of our said

colony.” R.I. Charter of 1663 (spelling modernized),

reprinted in 2 Federal and State Constitutions,

Colonial Charters, and Other Organic Laws of the

United States 1595, 1596 (Benjamin Perley Poore ed.,

2d ed. 1878) (Federal and State Constitutions).

Nowhere did these provisions require evidence of

government “coercion.”

State constitutions adopted immediately following

the American Revolution “defined the free exercise

right affirmatively, based on the scope of duties to God

perceived by the believer.” Michael W. McConnell, The

Origins and Historical Understanding of Free Exercise

of Religion, 103 Harv. L. Rev. 1409, 1459 (1990). New

York’s 1777 constitution guaranteed “the free exercise

and enjoyment of religious profession and worship,

without discrimination or preference.” N.Y. Const. of

1777, art. XXXVIII, reprinted in 2 Federal and State

Constitutions at 1328, 1338. New Hampshire’s 1784

constitution provided that “no subject shall be hurt,

molested, or restrained in his person, liberty or estate

for worshipping God, in the manner and season most

agreeable to the dictates of his own conscience.” N.H.

Const. of 1784, pt. I, art. V, reprinted in 2 Federal and

State Constitutions at 1280, 1281. Again, free exercise

was understood as a positive right to practice one’s

beliefs free from discrimination, harm, or restraint—not

merely as a negative right against government coercion.

James Madison made a similar point in his

Memorial and Remonstrance, where he wrote that it is

“the right of every man to exercise” his religion as his

“conviction and conscience” dictate and “the duty of

every man to render to the Creator such homage * * *

as he believes to be acceptable to him.” James

Madison, Memorial and Remonstrance Against

Religious Assessment, in 2 The Writings of James

Madison 183, 184 (Gaillard Hunt ed., 1901). For

Madison, the right of free exercise consisted in the

right to perform religious duties and obligations, not

just as a shield against government coercion.

2. Early case law following adoption of the Bill of

Rights lends further support. While reported cases on

federal and state religion clauses during this period

are sparse, two New York cases addressing the priestpenitent privilege reflect the view that religious

liberty encompasses more than the negative right

against government pressure to violate one’s beliefs.

In People v. Philips, the court rejected the prosecution’s request to order a Catholic priest to break the

seal of confession. See William Sampson, The

Catholic Question in America 8–9 (1813), excerpted in

Privileged Communications to Clergymen, 1 Catholic

Law. 199 (1955). The court ruled for the priest, not out

of concern that ordering him to breach the confessional

would coerce him to violate his religious beliefs, but

rather because the “ordinances,” “ceremonies,” and

“essentials” of religion “should be protected.” Id. at

207. The court explained: “To decide that the minister

shall promulgate what he receives in confession, is to

declare that there shall be no penance; and this

important branch of the Roman Catholic religion

would be thus annihilated.” Ibid.

Similarly, People v. Smith denied a defendant’s

motion to bar the testimony of a Protestant clergyman

the defendant had confessed to in prison. 2 City Hall

Recorder (Rogers) 77 (N.Y. 1817), reprinted in Privileged

Communications to Clergyman at 209. Because the

defendant’s confession was a communication with a

friend and not an act of religious observance, the

priest’s testimony did not raise free exercise concerns.

See ibid. As in Philips, the court’s holding turned on

the nature of the contested practice and whether it

constituted religious exercise.

3. This Court’s decisions likewise confirm that direct

government coercion is not a prerequisite for a free

exercise violation. Cantwell v. Connecticut held that

prosecuting Jehovah’s Witnesses for soliciting religious

donations without a state-issued certificate contravened

their free exercise rights. 310 U.S. 296, 301–04 (1940).

The Court struck down the certificate requirement not

because it “coerced” the Witnesses, but rather because

it conditioned their religious exercise based on “a

determination by state authority as to what is a

religious cause.” Id. at 307.

Sherbert v. Verner described how the government

may “burden” a person’s free exercise rights in terms

that reach beyond “coercion.” 374 U.S. 398, 403 (1963).

The government burdens religious practice, for

instance, when it “impede[s] the observance” of such

practices, “discriminate[s]” between religions, or

“inhibit[s] or deter[s] the exercise of First Amendment

freedoms.” Id. at 404–05. Although Sherbert found that

the South Carolina unemployment law “pressure[d]”

the plaintiff to abandon her Sabbatarian practices, id.

at 404, the Court identified multiple ways that the

government can impose a burden on free exercise. See

id. at 402–03.

As in this case, Wisconsin v. Yoder involved parents

who sought to excuse their children from religiously

objectionable school instruction. There, a group of

Amish parents challenged a Wisconsin law requiring

school attendance by children through age sixteen. 406

U.S. at 207. The Amish held sincere religious

objections to formal education past eighth grade. Id. at

210–11. Ruling for the parents, the Court identified

multiple burdens on religious exercise:

 First, the law “contravene[d] the basic religious

tenets and practice of the Amish faith” by

“interfering with the religious development of

the Amish child and his integration into the way

of life of the Amish faith community.” Id. at 218.

 Second, it “affirmatively compel[led]” the parents,

“under threat of criminal sanction, to perform

acts undeniably at odds with fundamental

tenets of their religious beliefs.” Ibid.

 Third, it “carrie[d] * * * a very real threat of

undermining the Amish community and

religious practice.” Ibid.

Yoder thus teaches that direct coercion is only one

way that the government can burden free exercise

rights. It is not a prerequisite for a viable claim under

the Free Exercise Clause. Because the Fourth Circuit

wrongly invoked coercion as a necessary condition of a

free exercise claim, the decision below is erroneous and

should be reversed.

B. Treating Coercion as a Necessary

Condition Under the Free Exercise

Clause Conflicts with Decisions Under

the Establishment Clause.

Decisions under the Establishment Clause illustrate

the flaws in the Fourth Circuit’s coercion-only conception

of the Free Exercise Clause.

1. Long before Kennedy v. Bremerton School District,

597 U.S. 507 (2022), a line of Establishment Clause

cases addressed religious content in public schools.

There, the Court took pains to guard students from the

possibility of “pressure” to change or conform their

views. That acute sensitivity to religious expression is

difficult to square with the Fourth Circuit’s demand

for proof of coercion before entertaining petitioners’

free exercise claims. The discrepancy suggests a

measure of hostility toward religion that the First

Amendment does not abide.

Take McCollum v. Board of Education, 333 U.S. 203

(1948). There, parents were allowed to send their

children to religious lessons on school grounds. Id. at

209. Parents who declined that opportunity could have

their children take a secular study hour instead. Ibid.

Although the religious instruction was voluntary, the

Court found the program invalid under the

Establishment Clause. Id. at 209–212.

Or consider Engel v. Vitale, 370 U.S. 421 (1962),

where the Court voided the practice of beginning the

school day with a 22-word nondenominational prayer.

“No student * * * [was] compelled to take part” in the

prayer, and State policy provided that neither “teachers

nor any school authority shall comment on participation or non-participation.” Id. at 438 (Douglas, J.,

concurring). A letter was sent to each parent, inviting

them to opt their children out “without fear of

reprisal or even comment by the teacher or any other

school official.” Ibid. Although any “governmental

encroachment[] upon religion” caused by the prayer

was “relatively insignificant,” the Court struck down

the practice. Id. at 436 (majority op.).

Abington School District v. Schempp, 374 U.S. 203

(1963), illustrates the same trend. There, the Court

declared unconstitutional a state law directing public

schools to open the school day with a reading of ten

Bible verses. School staff could not comment on the

meaning or importance of the verses, and parents were

given notice and a chance to opt their children out of

that exercise. Id. at 207. As in Engel, even though the

Bible-reading was a “minor encroachment[]” on religious

neutrality, the Court found the law contrary to the

Establishment Clause. Id. at 225.

Consider also Stone v. Graham, 449 U.S. 39 (1980).

There, the Court invalidated a state law requiring

public schools to post privately funded copies of the

Ten Commandments in classrooms. Students and

teachers did not have to read or discuss the

Commandments. Id. at 42. Yet the Court struck down

the law out of concern that placing a copy of the

Commandments in the classroom could “induce the

schoolchildren to read, meditate upon, and perhaps to

venerate and obey” them. Ibid.

Finally, in Lee v. Weisman, 505 U.S. 577 (1992), the

Court held that the Establishment Clause barred a

nondenominational prayer offered at high school

graduation. Attendance was voluntary, but the

Court concluded that the special significance of the

graduation ceremony, coupled with the school’s “high

degree of control over the precise contents of the

program,” made the prayer “a state-sanctioned

religious exercise in which the student was left with

no alternative but to submit.” Id. at 597.

2. These decisions stand in considerable tension

with the Fourth Circuit’s demand for evidence of

actual coercion before hearing petitioners’ claims

under the Free Exercise Clause.

Graham did not allow religious materials to be

passively displayed in the classroom on the off-chance

schoolchildren might “read” or “meditate upon” them.

449 U.S. at 42. In contrast, MCPS devoted an entire

unit to the Pride Storybooks and invested in special

training for teachers on how best to instill the books’

values in children. App.272a–278a.

McCollum, Engel, and Schempp likewise disallowed

contested religious instruction even when parents

received prior notice and a chance for their children to

opt out. See McCollum, 333 U.S. at 209; Engel, 370 U.S.

at 438; Schempp, 374 U.S. at 207. But here, when

MCPS realized that the Pride Storybooks were

controversial, it eliminated parental notice and optout. App.657a.

Then there’s Schempp, which prohibited the neutral

presentation of religious materials even when

teachers could not comment on the material. 374 U.S.

at 207. Yet here, Montgomery County’s guidance

directs teachers to defend the Pride Storybooks and

correct a schoolchild who questions the viewpoints

presented in them. See App.628a–635a (instructing

teachers to label differing views as “hurtful” or

“disrespectful” and “disrupt” any contrary beliefs).

Engel similarly prohibited the contested religious

instruction even though parents could opt out “without

fear of reprisal or even comment by the teacher or any

other school official.” 370 U.S. at 438 (Douglas, J.,

concurring). Here, an MCPS board member publicly

accused parents who objected to the Pride Storybooks

of promoting “hate” and compared them to “white

supremacists” and “xenophobes.” App.103a, 107a, 187a.

Lastly, there’s Weisman, which considered high school

seniors as uniquely susceptible to “pressure” from

school authorities and declared “the government may

no[t] * * * use social pressure to enforce orthodoxy.”

505 U.S. at 593–94. In sharp contrast, MCPS’s Pride

Storybooks are taught to schoolchildren as young as

five or six, whose susceptibility to pressure by teachers

to conform to secular orthodoxy is greater by orders of

magnitude. App.239a–240a.

We do not offer these comparisons to argue that the

County’s actions violate the Establishment Clause.

Rather, the comparisons highlight the flaws in the

Fourth Circuit’s interpretation of the Free Exercise

Clause. To say that that Clause applies only on proof

of government coercion reads the First Amendment’s

Religion Clauses in opposition to each other. That

would mean that, under the Establishment Clause,

parents offended by religious material may demand its

complete removal from the classroom while under the

Free Exercise Clause, parents whose religious

exercise is burdened by instruction on sexuality and

gender cannot even obtain notice and opt-out. Such

inconsistency defies this Court’s teaching that the

Religion Clauses should be read in harmony. See, e.g.,

Kennedy, 597 U.S. at 542 (“[T]here is no conflict

between the constitutional commands before us.”).

The upshot is this: If the Establishment Clause

empowers secular students and parents to remove

religious materials without proof of coercion, then

surely the Free Exercise Clause—at a minimum—

applies when religious parents request the more

modest relief of notice and opt-out. See Pet. Br. 11–12.

III. THE CONTESTED STORYBOOK PROGRAM

IMPOSES A SUBSTANTIAL BURDEN ON

PETITIONERS’ RIGHTS UNDER THE FREE

EXERCISE CLAUSE.

Yet the Fourth Circuit affirmed the dismissal of

petitioners’ free exercise claim, holding that “the

Parents have not shown a cognizable burden to

support their free exercise claim.” App.34a. Quoting

the district court, the court of appeals brushed aside

petitioners’ claim because they “still may instruct their

children on their religious beliefs regarding sexuality,

marriage, and gender, and each family may place

contrary views in its religious context.” Id. at 35a

(quoting id. at 136a). The court added that “[n]o

government action prevents the parents from freely

discussing the topics raised in the [S]torybooks with

their children or teaching their children as they

wish.” Ibid. (quoting id. at 136a–137a). Actually, the

County’s policy substantially burdens petitioners’

religious exercise.

A. MCPS Has Directly Burdened Petitioners’

Right to Direct their Children’s

Religious Education.

1. By concluding that the Free Exercise Clause is not

implicated by what petitioners’ children are compelled

to hear in government-operated classrooms, the

Fourth Circuit trivialized the constitutional issues. At

stake is the right of parents to transmit their faith to

their children without government interference.

That right is fundamental. “The history and culture of

Western civilization reflect a strong tradition of

parental concern for the nurture and upbringing of

their children. This primary role of the parents in the

upbringing of their children is now established beyond

debate as an enduring American tradition.” Yoder, 406

U.S. at 232. 4 The institution of the family—father,

mother, and children—is “older than law, and stands

A related line of decisions under the Due Process Clause

affirms “the fundamental right of parents to make decisions

concerning the care, custody, and control of their children.” Troxel

v. Granville, 530 U.S. 57, 66 (2000); accord Pierce v. Soc’y of the

Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510 (1925);

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

outside the State.” G.K. Chesterton, What’s Wrong

with the World 50 (8th ed. 1910).

Parental authority necessarily “include[s] the

inculcation of moral standards, religious beliefs, and

elements of good citizenship.” Yoder, 406 U.S. at 233.

Central to that authority is “the guiding role of parents

in the upbringing of their children.” Bellotti v. Baird,

443 U.S. 622, 637 (1979) (plurality op.). The Court has

explained that “[t]his affirmative process of teaching,

guiding, and inspiring by precept and example is

essential to the growth of young people into mature,

socially responsible citizens.” Id. at 638. Indeed, our

legal tradition disclaims any authority for the State to

act as the moral guardian for children. See ibid.

By contrast, directing a child’s religious education is

a well-recognized aspect of parental authority. See, e.g.,

Yoder, 406 U.S. at 213–14 (affirming that “the values

of parental direction of the religious upbringing and

education of their children in their early and formative

years have a high place in our society”); Espinoza v.

Mont. Dep’t of Revenue, 591 U.S. 464, 486 (2020) (“[W]e

have long recognized the rights of parents to direct ‘the

religious upbringing’ of their children.” (quoting Yoder,

406 U.S. at 213–14)); Smith, 494 U.S. at 881 (1990)

(acknowledging “the right of parents * * * to direct the

education of their children”). That right holds

preeminent importance for petitioners here.

2. Parents, no less than students and teachers, do

not “shed their constitutional rights * * * at the

schoolhouse gate.” Tinker v. Des Moines Indep. Cmty.

Sch. Dist., 393 U.S. 503, 506 (1969). This Court has

disavowed the notion that “the State may impose and

enforce any conditions that it chooses upon attendance

at public institutions of learning, however violative

they may be of fundamental constitutional guarantees.”

Id. at 506 n.2. Instead, “[f]amilies entrust public

schools with the education of their children, but

condition their trust on the understanding that the

classroom will not purposely be used to advance

religious views that may conflict with the private

beliefs of the student and his or her family.” Edwards

v. Aguillard, 482 U.S. 578, 584 (1987). Parents have the

authority to direct their children’s religious education—

both at home and wherever the government acts on

their behalf, in loco parentis. U.S. Const. amend. I.

MCPS cannot shirk its constitutional responsibility

to respect the constitutional rights of parents by

reciting its aim of LGBT equality. See App.71a. “The

question, then, is not whether the [County] has a

compelling interest in enforcing its non-discrimination

policies generally, but whether it has such an interest

in denying an exception to [petitioners].” Fulton v. City

of Philadelphia, 593 U.S. 522, 541 (2021). By teaching

young children about sexuality and gender in ways

that contradict their families’ religious faith, the

challenged reading program “raise[s] special concerns

regarding state interference with the liberty of parents

to direct the religious upbringing of their children.”

Weisman, 505 U.S. at 643 (Scalia, J., dissenting).

3. MCPS still asserts that “mere exposure in public

school to ideas that contradict religious beliefs does

not burden the religious exercise of students or

parents.” Defs.-Appellees’ Br. 24, Mahmoud v. McKnight,

No. 23-1890 (4th Cir. Oct. 24, 2023) (quotation omitted)

(Resp.). For support, MCPS turns to cherry-picked

circuit court decisions—only one of which remotely

resembles this case. Unlike Mozert v. Hawkins County

Board of Education, 827 F.2d 1058 (6th Cir. 1987), this

case does not involve parental objections to a broad

range of classroom instruction. Id. at 1062. Unlike

Fleischfresser v. Directors of School District 200, 15

F.3d 680 (7th Cir. 1994), petitioners’ free exercise

challenge does not implicate vague objections to

“foster[ing] a religious belief in the existence of

superior beings exercising power over human beings

by imposing rules of conduct, with the promise and

threat of future rewards and punishments.” Id. at 683

(quotation omitted). And unlike Bauchman v. West

High School, 132 F.3d 542 (10th Cir. 1997), the reading

program here involves impressionable children in the

youngest grades, not high school. See id. at 546.

That leaves Parker v. Hurley, 514 F.3d 87 (1st Cir.

2008). There, the First Circuit held that public schools

did not violate parents’ free exercise rights by

declining to excuse their children from reading books

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

Id. at 106. Parker rests on the same mistaken ground

as the decision below—that the Free Exercise Clause

requires evidence of actual coercion. See id. at 105.

Unlike Parker, petitioners’ claim does not rest on “the

mere fact that a child is exposed on occasion in public

school to a concept offensive to a parent’s religious

belief.” 514 F.3d at 105. Here, the County’s program

pressures students to accept contested viewpoints

about sexuality and gender and to blunt objections

based on a child’s and parent’s religious beliefs. See

Pet. Br. 29–30. The program intentionally seeks to

inculcate secular orthodoxy in direct opposition to

students’ and parents’ religious beliefs—not merely to

expose students to different viewpoints. Parker is

troubling—and wrong.

4. These lower court decisions thus fail to prop up

the County’s threadbare position, because mischaracterizing the Pride Storybook program as “mere

exposure” turns out to be inaccurate. Resp. 24.

Requiring children to hear lessons aimed at contradicting their parents’ faith on the religiously sensitive

topics of sexuality and gender seeks to supplant the

parents’ moral judgments with the County’s own and

involves risks for the faith of every family represented

in that classroom.

Coercion lurks in this case, even if it were a

necessary condition of relief under the Free Exercise

Clause. Age matters when discussing controversial

topics such as sexuality and gender, as any sensible

teacher will affirm. A class discussion with teenagers

about same-sex attraction will spark a debate. But

introducing the same topic in a classroom of five- and

six-year-olds will find an impressionable audience.

Classroom discussions of sexual orientation and

gender identity hold profound religious significance for

parents of young children. As we have explained, many

religions have beliefs and proscriptions governing the

gendered nature of human beings and the appropriate

exercise of sexual powers. The record in this case

attests to the petitioners’ sincerity on these points.

Given such sensitivities, some States have erected a

statutory bar to public school instruction regarding

sexuality and gender for young children. See, e.g., Fla.

Stat. § 1001.42(8)(c)(3) (prohibiting classroom instruction

on “sexual orientation or gender identity” among

“prekindergarten through grade 8” students except

when required to provide instruction on sexual

abstinence or health education); Ohio Rev. Code Ann.

§ 3313.473(E) (prohibiting classroom instruction on

“sexuality content” among “kindergarten through [grade]

three” students, where “sexuality content” excludes

“[i]ncidental references to sexual concepts or gender

ideology” outside of formal classroom instruction or

presentations). MCPS did not need to go that far to

support the rights of objecting parents. It could have

simply directed its schools to offer parents an optout—the same accommodation that petitioners seek.

See, e.g., Code Md. Reg. § 13A.04.18.01(D)(2)(e)(i).

Admittedly, in our religiously pluralistic society,

petitioners’ free exercise right to direct a child’s

religious upbringing cannot be unbounded. There are

cases where parental concerns about public school

curriculum amount almost to a demand for individualized educational instruction at public expense. See

Mozert, 827 F.2d at 1062. That is not this case. Here,

petitioners’ religious objections are focused, laser-like,

on a single unprecedented reading program aimed at

teaching children in the youngest grades highly

controversial ideas about romantic attraction and

gender identity. Acknowledging the resulting burden

on petitioners’ religious exercise does not open the door

to parental demands for individualized instruction. It

simply respects the Constitution’s guarantee that

religious exercise must be free.

Against all this, MCPS cites Epperson v. Arkansas,

393 U.S. 97 (1968), for the notion that “[j]udicial

interposition in the operation of the public school

system of the Nation raises problems requiring care

and restraint.” Resp. 32 (quoting Epperson, 393 U.S. at

104). But that statement, even taken at face value,

does not suggest that courts should look the other way

when public schools deprive parents of their First

Amendment rights. And any suggestion that local

school boards hold near-absolute power over the

content of public education because of some ephemeral

concern vaguely tied to the Establishment Clause

should be discarded as a relic of “a ‘bygone era’ when

this Court took a more freewheeling approach to

interpreting legal texts.” Shurtleff v. City of Boston,

596 U.S. 243, 276 (2022) (quoting Food Mktg. Inst. v.

Argus Leader Media, 588 U.S. 427, 437 (2019)).

Petitioners, in short, have suffered a substantial

burden on their exercise of religion.

B. Notice and Opt-Out Allow Public Schools

to Deliver Controversial Content on

Sexuality and Gender While Respecting

Parents’ First Amendment Rights.

1. Because MCPS has burdened petitioners’

religious exercise, the County’s actions must survive

strict scrutiny. The record supports two grounds for

that conclusion.

One, strict scrutiny is required when the government indulges in “official expressions of hostility to

religion.” Masterpiece Cakeshop, Ltd. v. Colo. Civil

Rights Comm’n, 584 U.S. 617, 639 (2018). As petitioners

show, Pet. Br. 15, that constitutional line was crossed

by county officials who expressed open hostility to the

religious viewpoints of petitioners and others.

See App.187a (disparaging parents for engaging in

a “dehumanizing form of erasure”); id. at 107a

(comparing

religious

parents

with

“white

supremacists” and “xenophobes”).

Two, the government may not require someone to

forego the exercise of religion as a condition of

receiving a public benefit. See Thomas v. Rev. Bd. of

Ind. Emp’t Sec. Div., 450 U.S. 707, 717–18 (1981).

That principle applies here, as Judge Quattlebaum

discerned. App.60a–61a (Quattlebaum, J., dissenting).

As petitioners have shown, Pet. Br. 21, MCPS’s pursuit

of the controversial Storybook program without

accommodating petitioners’ religious beliefs puts them

to an intolerable choice: “[E]ither adhere to their faith

or receive a free public education for the children”—

but not both. App.62a (Quattlebaum, J., dissenting).

Since the County does not even try to satisfy strict

scrutiny, it seems highly unlikely that MCPS’s program

can survive without accommodating petitioners’ religion.

2. Accommodation should be easy. Petitioners ask

only for notice and the right to have their children

excused from the objectionable class discussions. Id. at

74a (emphasizing “the limited nature of the relief the

parents seek”).

Granting petitioners’ relief is even consistent with

Maryland law. State regulations require schools to

provide opt-outs for any “instruction related to family

life and human sexuality objectives” other than

menstruation. Code Md. Reg. § 13A.04.18.01(D)(2)(e)(i).

It’s hard to see how MCPS can refuse that remedy to

petitioners when the reading program operated for a

year with the accommodations MCPS now stubbornly

denies. App.97a–98a.

By requiring opt-outs from controversial coursework,

Maryland law reflects the widely accepted means of

accommodating religious and moral objections when it

comes to sex education in public schools. 5 That is the

device adopted by many States to accommodate

parental concerns about such issues. See, e.g., S.C.

Code § 59-32-50 (requiring school boards to notify

parents of the content of instructional materials

regarding “reproductive health” and the option to

“exempt” their child from instruction); Va. Code

§§ 22.1-207.1(B), -207.2 (requiring public schools to

give parents an opportunity to review instructional

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

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

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

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

materials regarding family life education, including

“human sexuality” and “human reproduction,” along

with the option to “excuse” their child from all or part

of such instruction); W. Va. Code § 18-2-9(c) (requiring

public schools to give parents an opportunity to review

curriculum materials and the option to “exempt” their

child from participation in lessons concerning AIDS

“and other sexually transmitted diseases”).

Indeed, out of 44 states and the District of Columbia

that require or permit sex education in public schools,

33 of them offer parental opt-out rights, “some for

religious reasons only, others for moral or other

objections as well.” Melody Alemansour et al., Sex

Education in Schools, XX Geo. J. Gender & L. 467,

477–478 (2019). Only five states—Delaware,

Hawaii, Indiana, Kentucky, and Montana—require sex

education with no provisions for parental notice and

opt-out rights. Id. at 478.

Threats to parents’ ability to rear their children in

their faith cannot be brushed aside merely because the

County weaves its viewpoint on sexuality and gender

identity into classroom instruction on “language arts.”

See Resp. 2 (asserting that the Pride Storybook

program “do[es] not belong in the Family Life and

Human Sexuality Unit of the health-education

curriculum”). Relabeling the instruction does not

change its character or remove the religious burden it

imposes on children and parents. The same basic

conflict remains between the County’s desired teachings

and parents’ right to be free from governmental

interference in their children’s religious upbringing.

The suggestion that the Pride Storybooks benignly

“reflect the communities in which MCPS students live”

is divorced from reality. Ibid. Concepts such as gender

fluidity, figures such as drag queens, and relationships

of romantic attraction between two young girls—

these are not the stuff of ordinary “language arts”

instruction for children still learning the alphabet and

how to spell their own names.

The County’s other objections fall flat. That the optout carried administrative burdens does not relieve

the County of its duties under the First Amendment.

As this Court put it in Carey v. Population Services,

International, 431 U.S. 678 (1977), “the prospect of

additional administrative inconvenience has not been

thought to justify invasion of fundamental constitutional

rights.” Id. at 691. Nor does the County get any

mileage out of its complaint that respecting parents’

constitutional rights might mean that some students

feel isolated in a classroom with fewer students. See

Resp. 51. Surely the County can find other ways to

avoid such discomfort without violating petitioners’

constitutional rights. One option would be to combine

classes when materials from the MCPS Storybook

program are taught. At all events, the County has no

right to use the State’s compulsory attendance law to

create a forum for indoctrinating children against the

objections of religious parents.

CONCLUSION

Petitioners seek to exercise their religion by guiding

their children in matters concerning sexuality and

gender. MCPS has instituted a reading program that

teaches young children about LGBT characters and

concerns from a viewpoint that is antithetical to

petitioners’ sincere religious beliefs. Petitioners do not

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

notice and an opportunity for their children to be

excused. Under the First Amendment, their claim is

sound. The Fourth Circuit should be reversed.

Respectfully submitted,

GENE C. SCHAERR

HANNAH C. SMITH

SCHAERR|JAFFE LLP

1717 K Street NW

Suite 900

Washington, DC 20006

(202) 787-1060

R. SHAWN GUNNARSON

Counsel of Record

CHRISTOPHER A. BATES

JAROM M. HARRISON

DONALD N. LUNDWALL

KIRTON | MCCONKIE

36 South State Street

Suite 1900

Salt Lake City, Utah 84111

(801) 328-3600

sgunnarson@kmclaw.com

Counsel for Amici Curiae

March 10, 2024

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