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 A ppeals for the Fourth Circuit

BRIEF OF AMICA CURIAE

MELISSA MOSCHELLA, PH.D.

IN SUPPORT OF PETITIONERS

Robert P. George

Counsel of Record

William C. Porth

Jonathon C. Stanley

(admission pending)

Robinson & McElwee PLLC

400 Fifth Third Center

700 Virginia Street E

Charleston, West Virginia 25301

(304) 344-5800

pgeorge@princeton.edu

wcp@ramlaw.com

kjg@ramlaw.com

Counsel for Amica Curiae

131073

(800) 274-3321 • (800) 359-6859

TABLE OF CONTENTS

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

INTEREST OF AMICA CURIAE ............................... 1

SUMMARY OF ARGUMENT..................................... 3

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

The Free Exercise Clause Alone

Requires Granting Petitioners the

Relief They Seek .................................... 5

II.

Combining Free Exercise Claims

with Parental Rights Claims

Further Strengthens the Parents’

Case ........................................................ 9

III.

The Parental Rights Claim Alone

Warrants Strict Scrutiny and a

Ruling in Favor of the Parents............ 10

a. The Importance of Parental

Rights and the Need to Correct

the Confused, Inconsistent, and

Historically Inaccurate State of

Current

Parental

Rights

Jurisprudence .................................. 11

b. Meyer and Pierce Incorporated

the Common Law Understanding

of Parental Rights into the

Liberty

Protected

the

Fourteenth Amendment .................. 13

c. Parental Rights Are Essential to

Limited Government ....................... 17

d. Parental Rights Under Pierce,

Meyer, and the Common Law

Tradition Extend Beyond the

Schoolhouse Door ............................. 18

e. History and Tradition Indicate

that the Proper Standard of

Review in Parental Rights Cases

is Strict Scrutiny.............................. 24

f. Application to the Current Case ..... 28

CONCLUSION .......................................................... 29

iii

TABLE OF AUTHORITIES

Cases

Bartels v. Iowa,

262 U.S. 404 (1923) ............................................... 26

Brown v. Ent. Merchs. Ass’n.,

564 U.S. 786 (2011) ............................................... 16

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

68 F.3d 525 (1st Cir. 1995) ................................... 13

Dobbs v. Jackson,

597 U.S. 215 (2022) ........................................... 4, 13

Carson v. Makin,

596 U.S. 767 ........................................................ 5, 7

Emp. Div. v. Smith,

494 U.S. 872 (1990) ........................................... 9–10

Espinoza v. Mont. Dep’t of Revenue,

591 U.S. 464 (2020) ......................................... 3, 6, 7

Everson v. Board of Ed. of Ewing,

330 U.S. 1 (1947) ..................................................... 5

Farrington v. Tokushige,

273 U.S. 284 (1927) ............................................... 19

Fields v. Palmdale School District,

427 F.3d 1187 (9th Cir. 2005) ............................... 13

Gruenke v. Seip,

225 F.3d 290 (3d Cir. 2000) .................................. 13

McDonald v. City of Chicago,

561 U.S. 742 (2010) ............................................... 16

Meyer v. Nebraska,

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

Morrow v. Wood,

35 Wis. 59 (1874) ............................................. 21, 23

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

827 F.2d 1058 (6th Cir. 1987) ............................... 13

Parham v. J.R.,

422 U.S. 584 .......................................................... 23

People ex rel. O’Connell v. Turner,

55 Ill. 280 (1870) ................................................... 16

Pierce v. Soc’y of Sisters,

268 U.S. 510 (1925) ................................... 12, 15, 19

Prince v. Massachusetts,

321 U.S. 158 (1944) ............................................... 10

Rulison v. Post,

79 Ill. 567 (1875) ................................................... 21

San Antonio v. Rodriguez,

411 U.S. 1 (1973) ..................................................... 6

Sch. Bd. Dist. No 18 v. Thompson,

1909 OK 136 (Okla. 1909) .................. 21, 22, 23, 27

Shelton v. Tucker,

364 U.S. 479 (1960) ................................................. 3

Sherbert v. Verner,

374 U. S. 398 (1963) ................................................ 5

Society of Sisters v. Pierce,

296 F. 928 (D. Oregon 1924) ................................. 25

State v. Yoder,

49 Wis.2d 430 (1971) ....................................... 3, 8, 9

State ex rel. Andrew v. Webber,

108 Ind. 31 (1886) ........................................... 21, 27

State ex rel. Kelley v. Ferguson,

95 Neb. 63 (1914) .................................................. 21

State ex rel. Sheibley v.

School District No. 1, Dixon County,

31 Neb. 552 (1891) .......................................... 21, 22

Trinity Lutheran Church of Columbia, Inc. v.

Comer,

582 U. S. 449 (2017) ............................................ 5–6

Troxel v. Granville,

530 U.S. 57 (2000) ............................................. 3, 12

Trustees of Schools v. People,

87 Ill. 303 (1877) ................................................... 21

Washington v. Glucksberg,

521 U.S. 702 (1997) ........................................... 4, 29

Wisconsin v. Yoder,

406 U.S. 205 (1972) ................................. 3, 4, 11, 30

Commentaries

WILLIAM BLACKSTONE, COMMENTARIES ON THE

LAWS OF ENGLAND ................................................ 14

JAMES KENT, COMMENTARIES ON AMERICAN LAW

(New York, O. Halsted, 1827) ......................... 14, 23

JOSEPH STORY, COMMENTARIES ON EQUITY

JURISPRUDENCE (2d. ed., 1839) ............................. 15

Other Authorities

Helen Alvare, Families, Schools, and Religious

Freedom. 54 LOY. U. CHI. L.J. 579 (2022)....... 10, 28

Randy Barnett and Evan Bernick, The Privileges

or Immunities Clause, Abridged, 95 NOTRE

DAME L. REV. 499 (2019) ....................................... 16

Noa Ben-Asher, The Lawmaking Family,

90 WASH. U. L. REV. 363 (2012) ............................ 22

Justice William J. Brennan, Memorandum to

Chief Justice Warren E. Burger, RE: No. 70110 - Wisconsin v. Yoder (Apr. 12, 1972) (on

file at Library of Congress, Manuscript

Division, Box 141, Justice Harry A. Blackmun

Papers) ..................................................................... 9

Chief Justice Warren E. Burger, Memorandum to

Justice Potter Stewart, No. 70-110 - Wisconsin

v. Yoder (Apr. 11, 1972) (on file at Library of

Congress, Manuscript Division, Box 141,

Justice Harry A. Blackmun Papers) ...................... 9

Emily Buss, Passively Virtuous Parental Rights,

NOTRE DAME L. REV. (forthcoming 2025) ............. 12

Joseph Griffith II, “‘Tender and Sacred Ties’:

The Abolitionist Defense of Parental Rights

and

the

Thirteenth

and

Fourteenth

Amendments,” in CONSTITUTIONALISM AND

LIBERTY: ESSAYS IN HONOR OF DAVID K.

NICHOLS 216-231 (2025) ................................. 16–17

Martin Guggenheim, WHAT’S WRONG WITH

CHILDREN’S RIGHTS (2005) .................................... 18

Elizabeth Kirk, Parental Rights: In Search of

Coherence, 27 TEX. REV. L. & POL. 730 (2023) ..... 12

vii

Melissa Moschella, Beyond Equal Liberty:

Religion as a Distinct Human Good and the

Implications for Religious Freedom, JOURNAL

OF LAW AND RELIGION 32, 123 (2017) ...................... 1

Melissa Moschella, Carson v. Making, Free

Exercise, and the Selective Funding of StateRun Schools, JOURNAL OF RELIGION, CULTURE

AND DEMOCRACY (2025) ........................................... 1

Melissa Moschella, Defending the Fundamental

Rights of Parents, NOTRE DAME J.L. ETHICS &

PUB. POL'Y 397 (2023) ....................................... 1, 18

Melissa Moschella, Do Parental Rights Extend

Beyond the Schoolhouse Door? Correcting

Misinterpretations of Pierce in Light of History

and Tradition, NOTRE DAME L. REV.

(forthcoming 2025) ........................................ 1–2, 20

Melissa Moschella, Strict Scrutiny as the

Appropriate Standard of Review in Parental

Rights Cases: A Historical Argument,

TEX. REV. L. & POL. 771 (2024) ................... 1, 24, 27

Melissa Moschella, TO WHOM DO CHILDREN

BELONG? (Cambridge University Press,

2016) .................................................................. 1, 10

Margaret Ryznar, A Curious Parental Right,

71 SMU L. REV. 127 (2018) ................................... 12

Justice Potter Stewart, Memorandum to Chief

Justice Warren E. Burger, 70-110 - Wisconsin

v. Yoder (Apr. 11, 1972) (on file at Library of

Congress, Manuscript Division, Box 141,

Justice Harry A. Blackmun Papers) ...................... 9

viii

Daniel E. Witte, People v. Bennett: Analytic

Approaches to Recognizing a Fundamental

Parental Right Under the Ninth Amendment,

1996 B.Y.U. L. REV. 183 (1996)............................. 17

INTEREST OF AMICA CURIAE 1

Melissa Moschella (Ph.D., Princeton University; A.B.

Harvard University) is Professor of the Practice in

Philosophy at the University of Notre Dame’s

McGrath Institute for Church Life, and McDonald

Distinguished Fellow in the Center for Law and

Religion at Emory University School of Law.

(Affiliations are for identification purposes.) Dr.

Moschella’s curriculum vitae is available here:

https://mcgrath.nd.edu/about/faculty-staff/melissamoschella-ph-d/ Amica is a scholar of jurisprudence

and constitutional law, particularly with regard to the

issues of parental rights in education and religious

freedom. She is the author of TO WHOM DO CHILDREN

BELONG? PARENTAL RIGHTS, CIVIC EDUCATION AND

CHILDREN’S AUTONOMY (Cambridge University Press,

2016), and of Beyond Equal Liberty: Religion as a

Distinct Human Good and the Implications for

Religious Freedom, JOURNAL OF LAW AND RELIGION 32,

123 (2017), as well as Defending the Fundamental

Rights of Parents, NOTRE DAME J.L. ETHICS & PUB.

POL'Y 397 (2023); Strict Scrutiny as the Appropriate

Standard of Review in Parental Rights Cases: A

Historical Argument, TEXAS REV. OF L. AND POL. 771

(2024); Carson v. Making, Free Exercise, and the

Selective Funding of State-Run Schools, JOURNAL OF

RELIGION, CULTURE AND DEMOCRACY (2025); Do

Parental Rights Extend Beyond the Schoolhouse Door?

Correcting Misinterpretations of Pierce in Light of

History and Tradition, NOTRE DAME L. REV.

1 Amica Curiae affirms pursuant to Supreme Court Rule No. 37.6

that no counsel for any party authored or assisted in the drafting

of this brief, in whole or in part, and no person other than the

amica curiae and her counsel made any monetary contribution

intended to fund the preparation or submission of this brief.

(forthcoming 2025) and numerous other scholarly

publications on moral and legal questions regarding

parental rights and religious freedom. She also

delivered the 2024 Vaughan Lecture at Harvard Law

School on the subject: “How Broad and Strong are

Parental Rights Under Pierce?” (which can be seen at

https://www. youtube.com/watch?v=9OI0Dh5z4L4).

SUMMARY OF ARGUMENT

“The vigilant protection of constitutional

freedoms is nowhere more vital than in the

community of American schools.” Shelton v. Tucker,

364 U.S. 479, 487 (1960). Among these freedoms is the

right to the free exercise of religion. “No liberty

guaranteed by our constitution is more important or

vital to our free society than is a religious liberty

protected by the Free Exercise Clause of the First

Amendment.” State v. Yoder, 49 Wis.2d 430, 434

(1971).

This constitutionally protected religious

liberty includes “the rights of parents to direct ‘the

religious upbringing’ of their children.” Espinoza v.

Mont. Dep’t of Revenue, 591 U.S. 464, 486 (2020)

(quoting Wisconsin v. Yoder, 406 U.S. 205, 213-14).

On the basis of Carson v. Makin, Espinoza v.

Montana, Wisconsin v. Yoder, and related precedents,

the free exercise claims of the Petitioners in this case

are in themselves sufficient to warrant the application

of strict scrutiny, which in turn requires vindicating

Petitioners’ rights to exempt their children from

controversial instruction on sexuality and gender that

is contrary to their sincerely-held religious beliefs.

Also among the constitutional freedoms that

must be protected in the public schools is the related

“fundamental right of parents to make decisions

concerning the care, custody, and control of their

children” which the United States Supreme Court in

Troxel v. Granville referred to as “perhaps the oldest

of the fundamental liberty interests recognized by this

Court.” 530 U.S. 57, 65 (2000). When free exercise

rights and parental rights are both implicated – as

they are in this case – the warrant for stringent

constitutional protection is even stronger. Indeed, the

need to apply strict scrutiny becomes incontrovertible

“when the interests of parenthood are combined with

a free exercise claim.” Wisconsin v. Yoder, 406 U.S. at

233. The case currently before the court clearly falls

into this category.

Further, a proper, historically-informed

understanding of Meyer v. Nebraska and Pierce v.

Society of Sisters would indicate that the infringement

of parental rights in this case would also in itself be

sufficient to warrant strict scrutiny and a

corresponding vindication of the Petitioners’

constitutional rights. Yet the failure of the Supreme

Court to articulate a clear standard of review in

parental rights cases has left parental rights

jurisprudence in a state of confusion, resulting in

inconsistent lower court decisions, and leading many

lower courts to adopt a historically inaccurate, narrow

and weak interpretation of parents’ educational rights

under Meyer and Pierce. This approach is contrary to

the now well-established Glucksberg test for

identifying and defining purported substantive due

process rights by examining the relevant history and

tradition – a test reaffirmed and applied recently by

this Court in Dobbs. Washington v. Glucksberg, 521

US 702, 721 (1997); Dobbs v. Jackson, 597 U.S. 215

(2022).

Thus, although the parents’ free exercise claims

(either alone or in conjunction with their parental

rights’ claims) provide sufficient constitutional

grounds for applying strict scrutiny and finding the

School Board’s actions unconstitutional, this case

presents an important and timely opportunity for the

Court to clarify the confused and historically

inaccurate state of current parental rights

jurisprudence. This is especially true given that it has

been half a century since the Supreme Court took a

case concerning parental rights in education, and that

the increasingly controversial nature of what the

public schools teach on sensitive issues such as

sexuality and gender (as exemplified in the current

case) has led to a proliferation of conflicts between

parents and public schools.

ARGUMENT

The Free Exercise Clause Alone Requires

Granting Petitioners the Relief They Seek

“A State violates the Free Exercise Clause

when it excludes religious observers from otherwise

available public benefits.” Carson v. Makin, 596 U.S.

767, 778 (2022) (relying on Sherbert v. Verner, 374

U.S. 398, 404 and Everson v. Board of Ed. of Ewing,

330 U.S. 1, 16). To exemplify this principle, the

Carson court cites Sherbert (in which a Seventh-day

Adventist lost her job for refusing to work on the

sabbath, and was denied unemployment benefits),

noting that “[a] State may not withhold

unemployment benefits…on the ground that an

individual lost his job for refusing to abandon the

dictates of his faith.” Id. (citing Sherbert, 374 U. S. at

399-402). Similarly, both Trinity Lutheran v. Comer

and Espinoza v. Montana held that it is

unconstitutional to force individuals or institutions to

choose between forgoing their religious exercise or

forgoing a valuable public benefit. Trinity Lutheran

held that it is “odious to our constitution” to condition

a church’s “free[dom] to continue operating as a

church” on “exclusion from the benefits of a public

program.” Trinity Lutheran v. Comer, 582 U.S. 499,

467, 462 (2017). And Espinoza held that the state

policy at issue violated parents’ free exercise rights

“by cutting families off from otherwise available

benefits if they choose a religious private school rather

than a secular one.” 591 U.S. at 486.

The Petitioners in this case (“the Parents”) are

in a similar position, due to the Montgomery County

School Board’s refusal to allow their children to be

exempted from lessons contrary to their religious

beliefs. Because of this refusal, the Parents must

choose between failing to fulfill their religious

obligation to educate their children in line with their

faith, or forgoing the valuable benefit of a free public

education. And this Court has already recognized

that education is among the “services and benefits

provided by the State,” comparable to social

assistance programs like welfare or unemployment

benefits. San Antonio v. Rodriguez, 411 U.S. 1, 35, 37

(1973) (arguing against the claim that education

should be considered distinct from other state

benefits, and comparing state provision of education

to state provision of “food and shelter”). The same

principle applied in Sherbert, Trinity Lutheran,

Espinoza, and Carson – that it is unconstitutional for

the state to force someone to choose between living out

one’s faith and receiving a public benefit – therefore

applies here.

Indeed, due to the School Board’s refusal to

grant opt-outs, some of the Parents have already had

to remove their children from the public schools –

thereby losing a valuable public benefit – in order to

fulfill their religious obligation to educate their

children in line with their faith. Complaint at record

7, ¶35. Thus, their situation is analogous to that of

the woman in Sherbert who was denied

unemployment benefits because she lost her job for

refusing to violate her religious obligation to abstain

from work on the sabbath. It is also analogous to the

situation of Trinity Lutheran Child Learning Center,

which was forced to choose between exercising its

religious mission and eligibility for a public benefit

program. Finally, the situation of religious parents in

this case is analogous to that of the petitioners in

Espinoza, who were denied access to “scholarship

funds they otherwise would have used to fund their

children’s educations at religious schools.” Carson,

596 U.S. at 779 (describing the facts in Espinoza, 591

U.S. 464).

Just as in these analogous cases, requiring the

Parents in this case either to violate their religious

obligation to educate their children in line with their

faith or to forgo the benefit of a free public education

is state coercion inhibiting the free exercise of religion.

Moreover, given that education is compulsory, and

that many parents lack the means to pay for private

schooling, for some parents the state coercion to

violate their religious obligations is even more direct.

Parents in this situation must choose between

violating the compulsory education law or violating

their faith.

In either case, such state coercion inhibiting

the exercise of religion will only pass constitutional

muster if it meets the requirements of strict scrutiny

– that is, if it is narrowly tailored to a compelling state

interest. But the School Board’s refusal to allow the

parents to opt their children out of these controversial

lessons on sexuality and gender clearly fails to meet

these requirements.

Exposing impressionable

elementary-school children to highly contested views

about sexuality and gender could hardly be considered

a compelling state interest. And even if one grants a

compelling state interest in promoting tolerance and

civic respect, there are countless other ways of

achieving this interest that are less burdensome to the

Parents’ religious exercise.

It is, at any rate,

implausible to claim that the state’s interest in

tolerance and civic respect will be defeated unless it

forces every child to participate in these controversial

lessons, regardless of the parents’ religious objections.

The Supreme Court of Wisconsin’s comment in State

v. Yoder regarding the unwillingness of the state to

exempt Amish children from the last two years of the

compulsory

education

requirement

–

unwillingness that failed to meet the requirements of

strict scrutiny – applies equally to this case: “Here,

the state has substituted its judgment of the type of

education for the judgment of the natural parent and

has made no allowance for the religion of the child or

the religion of the parent.” 49 Wis.2d at 440. The

Supreme Court of Wisconsin – and eventually the

United States Supreme Court – ruled that failure to

grant the exemption was a violation of Amish families’

free exercise rights that could not survive strict

scrutiny, because granting the exemption would not

“defeat the purpose” of the compulsory education law.

Id. at 441. Applying the same standard, the Court in

this case should rule that it is a violation of the

Parents’ free exercise rights to deny their request to

opt their children out of these controversial lessons on

sexuality and gender.

It is also noteworthy that State v. Yoder was

decided purely on free exercise grounds. “We view this

case as involving solely a parent's right of religious

freedom to bring up his children as he believes God

dictates.” Id. at 438. Further, although Wisconsin v.

Yoder

mentions

parental

rights,

written

correspondence between Justices Stewart and

Brennan and Chief Justice Burger indicates that the

constitutional basis of the decision was solely the First

Amendment’s Free Exercise Clause (applied to the

states via the Fourteenth Amendment). Justice Potter

Stewart, Memorandum to Chief Justice Warren E.

Burger, No. 70-110 - Wisconsin v. Yoder (Apr. 11,

1972); Chief Justice Warren E. Burger, Memorandum

to Justice Potter Stewart, No. 70-110 - Wisconsin v.

Yoder (Apr. 11, 1972); Justice William J. Brennan,

Memorandum to Chief Justice Warren E. Burger, re:

No. 70-110 - Wisconsin v. Yoder (Apr. 12, 1972).

These precedents therefore indicate that

remedying the free exercise violation in the current

case is sufficient reason to rule in favor of the Parents.

II.

Combining Free Exercise Claims With

Parental

Rights

Claims

Further

Strengthens the Parents’ Case

Although – as argued above – the Parents’ free

exercise claim should itself trigger strict scrutiny and

be a sufficient basis for a ruling in their favor, the

Parents’ case is further strengthened by recognizing

that the School Board’s actions violate not only free

exercise rights but also parental rights. Under

Employment Division v. Smith, in a “hybrid situation”

in which “free exercise rights” are combined with

another constitutional right such as “the right of

parents … to direct the education of their children,”

strict scrutiny is required even when considering a

“neutral, generally applicable law.” 494 U.S. 872, 881

(1990). If such hybrid situations exist, this case is

clearly one. Thus, even if the policy at issue in this

case were neutral or generally applicable – I argue

below that it is neither – strict scrutiny ought to apply.

The religious obligation that the School Board’s

policy interferes with is precisely the Parents’

religious obligation to educate their children in

accordance with their faith. The books/lessons to

which the Parents object touch upon sensitive and

intimate matters regarding sexuality and family life

that are central to their religious beliefs. Complaint

at record 8-12, ¶50-83. As one scholar explains, “Old

and New Testament scriptures persistently point to

human beings’ ordinary romantic and familial

relationships and experiences as pathways for

glimpsing foundational religious beliefs.” Helen

Alvare, Families, Schools, and Religious Freedom. 54

LOY. U. CHI. L.J. 579, 580 (2022). Moreover –

precisely because these books deal with intimate

moral and religious beliefs – failing to accommodate

parents’ objections to them strikes at the core of

parents’ educational rights. “The parent’s conflict

with the state over control of the child and his training

is serious enough when only secular matters are

concerned. It becomes the more so when an element of

religious conviction enters.” Prince v. Massachusetts,

321 U.S. 158, 165 (1944). See also Melissa Moschella,

To Whom Do Children Belong? 2016, 66 (“The

particularly weighty and personal nature of parents’

obligation to educate their children morally and

religiously implies that respecting parents’ right[s] ...

requires granting them a highly protected sphere of

authority to make decisions about the moral and

religious content of education.”) And all of these

concerns are magnified due to the very young ages of

the children involved. “[T]he 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.” Wisconsin v. Yoder, 406

U.S. at 213-214. Thus, the Petitioners’ parental rights

claim strengthens and is closely connected to their

free exercise claim.

The policy at issue in this case is neither

neutral nor generally applicable, given that the very

accommodation requested by the parents was

routinely granted in the past, that similar opt-outs

continue to be routinely granted, and that officials’

defenses of the policy reflect hostility toward religion.

Complaint at record 30-31, ¶200-209, 225-233.

Nonetheless, even if the policy were neutral and

generally applicable, strict scrutiny should still apply

under Smith because the case presents a hybrid

situation in which the policy infringes upon both

parental rights and free exercise rights. And, as

explained in the previous section, the policy clearly

fails to meet the requirements of strict scrutiny.

III.

The Parental Rights Claim Alone

Warrants Strict Scrutiny and a Ruling in

Favor of the Parents

A. The Importance of Parental Rights and

the Need to Correct the Confused,

Inconsistent,

and

Historically

Inaccurate State of Current Parental

Rights Jurisprudence

In Pierce v. Society of Sisters, Justice

McReynolds, writing for a unanimous court, famously

stated: “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. The child is not the mere creature of the

State; those who nurture him and direct his destiny

have the right, coupled with the high duty, to

recognize and prepare him for additional obligations.”

268 U.S. 510, 534 (1925). Every Supreme Court

decision touching upon parental rights – including

those reversing other Lochner-era substantive due

process decisions – has reaffirmed Pierce

unequivocally. See Emily Buss, Passively Virtuous

Parental Rights, NOTRE DAME L. REV. (forthcoming

2025). Most recently, the Supreme Court in Troxel

spoke of the “fundamental right of parents to make

decisions concerning the care, custody, and control of

their children” as “perhaps the oldest of the

fundamental liberty interests recognized by this

Court.” 530 U.S. 66, 65 (2000). Nonetheless, Troxel,

like previous decisions related to parental rights,

failed to clarify the appropriate standard of review for

parental rights cases, leading to confusions and

inconsistencies in lower courts, which have applied

“various levels of scrutiny…without much method,

logic, or reason.” Margaret Ryznar, A Curious

Parental Right, 71 SMU L. REV. 127, 130 (2018). See

also Elizabeth Kirk, Parental Rights: In Search of

Coherence, 27 TEX. REV. L. & POL. 730, 742 (2023)

(concluding that parental rights jurisprudence

currently is “weak, chaotic, and inconsistent”).

This lack of clarity and consistency regarding

both the strength and scope of parents’ constitutional

rights, particularly in the educational arena, has led

many lower courts to be dismissive of parental rights

in education, claiming, for instance, that “the MeyerPierce right does not extend beyond the threshold of

the schoolhouse door.” Fields v. Palmdale School

District, 427 F.3d 1187, 1207 (9th Cir. 2005). 2 Some

lower courts – including the Fourth Circuit in the

current case – have failed to apply strict scrutiny even

in hybrid cases involving both parental rights and free

exercise rights (see, e.g. Mozert v. Hawkins Cnty. Bd.

of Educ., 827 F.2d 1058 (6th Cir. 1987); Brown v. Hot,

Sexy & Safer, 68 F.3d 525 (1st Cir. 1995)), while

others have argued that parental rights violations

merit strict scrutiny in and of themselves. See, e.g.

Gruenke v. Seip, 225 F.3d 290, 305 (3d Cir. 2000). The

Supreme Court should put an end to this legal

confusion and inconsistency, and should do so by

rectifying the historically inaccurate narrow and

weak reading of Pierce that many lower courts have

adopted.

The need to rectify the confused and frequently

mistaken state of current parental rights

jurisprudence is strengthened by this Court’s

affirmation in Dobbs v. Jackson that substantive due

process rights need to be identified and defined in

light of our Nation’s history and tradition. 572 US __

(2022). Reading Pierce and Meyer in light of the

common law tradition’s understanding of parental

rights leads to the conclusion that parents do have

constitutional rights to direct the education and

upbringing of their children, and that those rights are

both broad and strong. Parents’ educational rights are

broad in encompassing rights of educational control

well beyond the right to send one’s child to a private

2 This line was later amended to soften and add more nuance to

the claim (Id. at 1191 (9th Cir. 2006). Nonetheless, the Ninth

Circuit’s narrow interpretation of Pierce in this case remained

unaltered.

school at one’s own expense – including the right to

certain exemptions and accommodations within the

public schools. And they are strong in the sense that

violations of these rights merit strict scrutiny.

B. Meyer and Pierce Incorporated the

Common

Law

Understanding

Parental Rights into the Liberty

Protected

the

Fourteenth

Amendment

Properly understanding Meyer and Pierce

requires recognizing that Meyer – and by extension,

Pierce, which built upon Meyer – declared parental

rights as understood by the common law tradition to

be part of the liberty protected by the Fourteenth

Amendment. As the Meyer Court states: The “liberty

guaranteed … by the Fourteenth Amendment”

includes, “without doubt,” the right “to marry,

establish a home and bring up children,” along with

other “privileges long recognized at common law as

essential to the ordered pursuit of happiness by free

men.” Meyer v. Nebraska, 262 U.S. 390, 399 (1923).

Further,

Meyer

echoes

the

common

law

understanding of parental rights as based on parents’

natural, pre-political obligations to maintain, protect,

and educate their children: “[I]t is the natural duty of

the parent to give his children education suitable to

their station in life.” Id. See 1 WILLIAM BLACKSTONE,

COMMENTARIES *435 (“The duty of parents … is a

principle of natural law; an obligation … laid on them

not only by nature herself, but by their own proper act,

in bringing them into the world.”); 2 JAMES KENT,

COMMENTARIES ON AMERICAN LAW 159, 169

(indicating that parents’ natural duties to their

children “consist in maintaining and educating them,”

and explaining that these duties fall naturally to

parents because “[t]he wants and weaknesses of

children render it necessary that some person

maintain them, and the voice of nature has pointed

out the parent as the most fit and proper person.”)

This same common law view of parental duties, and

corresponding rights to perform those duties without

undue state interference, is even more strongly

articulated in Pierce: “The child is not the mere

creature of the state; those who nurture him and

direct his destiny have the right, coupled with the

high duty, to recognize and prepare him for additional

obligations.” 268 U.S. at 534.

The common law tradition regarding parental

rights that Meyer and Pierce incorporate into the

liberty protected by the Fourteenth Amendment

recognizes children to be primarily (and naturally)

under the jurisdiction of parents, with the state’s role

being viewed as subsidiary to that of parents. In other

words, the state’s role is to ensure that parents are at

least minimally fulfilling their duties, and to assist

parents in fulfilling those duties when needed, but to

do so in a way that respects the primacy of parents’

authority insofar as possible. Joseph Story writes

that the state is justified in interfering “with the

ordinary rights of parents, as guardians by nature, or

by nurture, in regard to the custody and care of their

children” only in exceptional cases in which the

“natural presumption … that the children will be

properly taken care of” is overridden by proof of “gross

ill treatment” on the part of the parent.” 2 JOSEPH

STORY, COMMENTARIES ON EQUITY JURISPRUDENCE

§1341 (2d. ed., 1839). Courts in the mid-nineteenth

century (around the time of the ratification of the

Fourteenth Amendment) frequently echoed this

language as well. For instance, the Illinois Supreme

Court stated that “[t]he parent has the right to the

care, custody and assistance of his child. The duty to

maintain and protect it, is a principle of natural law.

. . . Before any abridgment of the right, gross

misconduct or almost total unfitness on the part of the

parent, should be clearly proved.” People ex rel.

O’Connell v. Turner, 55 Ill. 280, 284-85 (1870).

It should also be noted that, although Meyer

rooted parental rights in the Fourteenth

Amendment’s Due Process Clause – following the

favored jurisprudence of the day – the deeply-rooted

history and tradition of respect for parental rights at

common law (as well as in statutory law and in

common-law based state supreme court decisions

around the time of the ratification of the Fourteenth

Amendment) could also be the basis for anchoring

parents’ constitutional rights in the Privileges or

Immunities Clause, or in the Ninth Amendment. See

Brown v. Ent. Merchs. Ass’n., 564 U.S. 786, 834 (2011)

(Thomas, J., dissenting) (providing further evidence of

our nation’s strong tradition of respect for parental

rights); McDonald v. City of Chicago, 561 U.S. 742,

806 (2010) (Thomas, J., concurring in part and

concurring in the judgment) (suggesting that some

unenumerated constitutional rights could be rooted in

the Privileges or Immunities Clause). See also Randy

Barnett and Evan Bernick, The Privileges or

Immunities Clause, Abridged, 95 Notre Dame L. Rev.

499 (2019) (arguing that the original meaning of the

14th Amendment’s privileges or immunities clause

protects unenumerated rights); Joseph Griffith II,

“‘Tender and Sacred Ties’: The Abolitionist Defense of

Parental Rights and the Thirteenth and Fourteenth

Amendments,” in CONSTITUTIONALISM AND LIBERTY

216-231 (2025); and Daniel E. Witte, People v.

Bennett: Analytic Approaches to Recognizing a

Fundamental Parental Right Under the Ninth

Amendment, B.Y.U. L. REV. 183, 261 (1996). Thus, the

analysis provided here will be relevant regardless of

one’s views regarding the best constitutional anchor

for parental rights.

C. Parental Rights Are

Limited Government

Essential

Meyer also emphasizes that respect for parental

rights is at the core of limited, constitutional

government.

Discussing Plato’s proposal for

communal childrearing in the Republic and the

Ancient Spartan practice of taking male children

away from their parents at age seven to be educated

by state officials, the Meyer Court comments that such

measures could not be imposed “without doing

violence to both the letter and the spirit of the

Constitution.” 262 U.S. at 402. Although it may seem

hyperbolic to compare Plato’s communal childrearing

proposal or the practices of Ancient Sparta with the

Nebraska law at issue – which merely forbade the

teaching of foreign languages prior to the ninth grade

– the Court’s point was to highlight that these policies

all reflect an erroneous, statist denial of the primacy

of parental educational authority over the state’s

authority in this arena. And this denial is

fundamentally

incompatible

with

limited,

constitutional government committed to preserving

the liberty of the people. Indeed, the connection

between respect for the primacy of parents’

educational authority and limited government is a

matter of common sense, for “the ideal of government

serving the people’s will” is incompatible with the

state using its power to mold people’s will by

controlling

children’s

education.

MARTIN

GUGGENHEIM, WHAT’S WRONG WITH CHILDREN’S

RIGHTS 24-25 (2005). See also Melissa Moschella,

Defending the Fundamental Rights of Parents, NOTRE

DAME J.L. ETHICS & PUB. POL'Y 397, 411-12 (2023)

(“Recognizing and respecting that the family … is an

authoritative community with the right to direct its

own internal affairs is an essential and crucial feature

of limited government. Indeed … a hallmark of

totalitarianism is the effective elimination of all

mediating institutions between the individual and the

state. The family is arguably the original and most

crucial of these mediating institutions.”).

D. Parental Rights Under Pierce, Meyer,

and the Common Law Tradition

Extend Beyond the Schoolhouse Door

The narrow reading of Pierce common in lower

courts – as requiring only that parents be legally free

to educate their children at private schools – is

mistaken, out of step not only with the text of Pierce,

but also with the common law understanding of

parental rights that Pierce (following Meyer)

presupposes and affirms. Although Pierce explicitly

forbids the state from “standardiz[ing] its children by

forcing them to accept instruction from public

teachers only,” the historical context indicates that

Pierce mentioned this particular mode of

standardizing children simply because the freedom to

educate one’s child at a private school was the issue in

the case, but not because the Pierce court thought this

was the only constitutionally-forbidden way for the

state to attempt to standardize children. Those same

justices’ interpretation of their own ruling two years

later in Farrington v. Tokushige makes this clear.

Relying on Pierce and Meyer, Farrington held that

undermining private schools’ autonomy through

extensive government regulation was also an

unconstitutional violation of parental rights.

Farrington v. Tokushige, 273 U.S. 284, 298 (1927).

Further, the text of the Pierce Opinion suggests

that the state’s educational authority has limited

scope and should be understood as subsidiary to the

educational authority of parents. Pierce states: “No

question is raised concerning the power of the State

reasonably to regulate all schools, to inspect,

supervise and examine them, their teachers and

pupils; to require that all children of proper age attend

some school, that teachers shall be of good moral

character and patriotic disposition, that certain

studies plainly essential to good citizenship must be

taught, and that nothing be taught which is

manifestly inimical to the public welfare.” 268 U.S. at

534. Note the semicolon after the first clause. The

four things listed after the semicolon should therefore

be understood to indicate the scope of reasonable state

educational regulation about which “no question is

raised.” Thus the state may require: (1) “that all

children of proper age attend some school,” (2) “that

teachers shall be of good moral character and patriotic

disposition,” (3) that certain studies plainly essential

to good citizenship must be taught,” and (4) “that

nothing be taught which is manifestly inimical to the

public welfare.” Any state action in the educational

arena falling outside of these four categories is

therefore an action about which constitutional

questions would be raised. Farrington supports this

interpretation, because the regulations deemed

unconstitutional in that case were outside these

categories. Moreover, unless one interprets Pierce in

this way, the Opinion’s claim that the Act in question

“has no reasonable relation to some purpose within

the competency of the State” makes no sense, for the

Act has a clear relation to many state interests (such

as the assimilation of immigrants). Nonetheless,

requiring all students to attend public schools is an

educational regulation that goes beyond the four

categories listed above, and arguably for that reason

falls outside the competency of the state and intrudes

upon the prior educational authority of parents. (For

a more detailed defense of this interpretation, see

Melissa Moschella Do Parental Rights Extend Beyond

the Schoolhouse Door? Correcting Misinterpretations

of Pierce in Light of History and Tradition, NOTRE

DAME L. REV., forthcoming 2025.)

The idea that state educational authority

should be limited in this way also follows from the

general common law principles that Pierce and Meyer

presupposed, for those principles make it clear that

parents have the primary duty and corresponding

authority to control their children’s education and

upbringing, and thus that state action in this arena

should respect parental authority except when this is

incompatible with the state’s interest in ensuring that

all children have access to an education that will

prepare them to be law-abiding and productive

citizens. Pierce’s enumeration of constitutionally

unquestionable state educational regulations – i.e.

that all children receive a basic education, that

teachers themselves be good citizens, that studies

“plainly essential to good citizenship” be taught, and

that those “manifestly inimical to the public welfare”

be forbidden – makes sense in light of this general

principle.

State supreme court decisions based upon

common law likewise support this interpretation, and

provide even clearer evidence that parents’ rights

were historically understood to include the right to

direct their children’s education even within the public

schools.

From the mid-nineteenth to the early

twentieth century, there was a string of eight cases in

which parents sought to exempt their children from

some aspect of the public school curriculum, while still

being able to enjoy the benefit of a free public school

education for their children. In seven out of eight such

cases, the parents prevailed. The state supreme

courts in these seven cases argued on the basis of

common law that parents by nature possess primary

educational authority over their children, and that

this implies a right to control their children’s

education even within the public schools, as long as

this is not incompatible with the discipline and

efficiency of the schools. Sch. Bd. Dist. No 18 v.

Thompson, 1909 OK 136 (Okla. 1909); Morrow v.

Wood, 35 Wis. 59 (1874), Rulison v. Post, 79 Ill. 567

(1875), Trustees of Schools v. People, 87 Ill. 303 (1877),

State ex rel. Sheibley v. School District No. 1, Dixon

County, 31 Neb. 552 (1891), State ex rel. Kelley v.

Ferguson, 95 Neb. 63 (1914). (The outlier is State ex

rel. Andrew v. Webber, 108 Ind. 31 (1886), which ruled

against the parents.)

To take just one example that is representative

of (and makes reference to) parallel cases from other

states, Thompson is an Oklahoma case in which

parents brought suit because their children were

expelled from the public school due to their refusal (at

their parents’ command) to participate in singing

lessons. The parents sought for their children to be

reinstated in the schools, but exempted from the

singing lessons, and the Oklahoma Supreme Court

decided in their favor.

The court’s argument is based explicitly on the

common law view that parents possess natural duties

and corresponding rights to direct the education and

upbringing of their children: “At common law the

principal duties of parents to their legitimate children

consisted in their maintenance, their protection, and

their education. These duties were imposed upon

principles of natural law and affection laid on them

not only by Nature herself, but by their own proper act

of bringing them into the world.” Thompson, 103 at p.

578-79 (citing Blackstone). The court also clarifies

that the “common-law doctrine that the parent had

entire control over the education of his child” remains

intact even after the introduction of compulsory

education laws, because such laws simply make it

legally compulsory for parents to fulfill their natural

duty in a minimally-satisfactory way. Further, the

court emphatically denies that “the mere act of

sending children to school amounts to a delegation of

parental authority which the law of the land places in

the hands of the parent.” Id. at p.580, quoting State v.

School District No. 1, Dixon County, 31 Neb. 552

(1891) (internal quotation marks omitted). As one

scholar observes, “[s]chools in the common-law era

were viewed as service providers whose authority

stems from the delegation of the parents.” Noa BenAsher, The Lawmaking Family, 90 WASH. U. L. REV.

363, 381 (2012). Thus, parents are “free to a great

extent to select the course of study” within the public

schools, as long as this is compatible with the “proper

discipline, efficiency and well-being of the common

schools” - and the Thompson court, along with the

other courts that made similar rulings, judges that it

is indeed compatible. Thompson, 103 at p.580, quoting

Morrow v. Wood, 35 Wis. 59 (internal quotation marks

omitted).

The court further argues that one strong reason

for deferring to parents’ judgments about what their

child should (and shouldn’t) be taught is that parents

generally have a much greater interest in the child’s

welfare and knowledge of the child’s needs and

capacities than any teacher or school official. Id. at

p.580. This argument also echoes the common-law

presumption that “the voice of nature has pointed out

the parent as the most fit and proper person” to make

child-rearing

decisions.

JAMES

KENT,

COMMENTARIES ON AMERICAN LAW 169. See also

Parham v. J.R. 422 U.S. 584, 602 (1979) (The law

“historically … has recognized that natural bonds of

affection lead parents to act in the best interests of

their children.”)

The Thompson court therefore ruled in favor of

the parents, holding that “The parent … has a right to

make a reasonable selection from the prescribed

course of study for his child to pursue, and this

selection must be respected by the school authorities,

as the right of the parent in that regard is superior to

that of the school officers and the teachers.” Id. at

p.581. And the right of the parent is superior for the

reasons noted above: that, by nature and common law,

education is primarily the duty of the parent; and that

the parent has greater interest in the child’s welfare

and knowledge of the child’s capacities.

E. History and Tradition Indicate that the

Proper Standard of Review in Parental

Rights Cases is Strict Scrutiny

Correcting

the

historically-inaccurate

interpretation of parents’ Meyer-Pierce rights requires

not only recognizing that parents’ educational rights

extend far beyond the right to send one’s child to a

private school at one’s own expense, but also

recognizing that strict scrutiny is the appropriate

standard of review in parental rights cases. Indeed,

looking carefully not only at Meyer and Pierce but also

at the string of state supreme court cases discussed in

the previous section indicates that in these cases the

courts were implicitly applying what today would be

called a strict scrutiny test. Further, the requirement

that laws interfering with parental rights be narrowly

tailored to a compelling state interest is simply a way

of capturing the strong deference to parental

authority that has been present throughout our

nation’s legal history and tradition. See Melissa

Moschella, Strict Scrutiny as the Appropriate

Standard of Review in Parental Rights Cases: A

Historical Argument, TEX. REV. L. & POL. 771 (2024)

Of course, Meyer, Pierce, and the preceding

state supreme court cases related to parental rights in

education were decided prior to the development of

current doctrine regarding tiers of scrutiny. Thus, we

cannot expect them to explicitly indicate that they are

applying a heightened level of scrutiny. To determine

this, we therefore need to examine their reasoning to

see if they are effectively requiring that the laws or

policies at issue be narrowly tailored to a compelling

state interest, and also to see if the courts are placing

the burden of proof on the state (which is also

indicative of heightened scrutiny). Even a fairly

superficial reading of these cases makes it clear that

this is in fact what they were doing.

In Pierce, for instance, the law at issue did have

a reasonable relationship to a legitimate state

interest. If Pierce had been applying what we today

call the rational basis test, the Court would have

upheld the law. Instead, following the reasoning of

the Oregon District Court whose ruling Pierce

affirmed, we see that the burden of proof is being

placed on the state to defend its law, rather than on

the petitioners to prove that the act lacks a reasonable

relation to a legitimate state interest. Consider the

core of the Oregon District Court’s argument:

Compulsory

education

being

the

paramount policy of the state, can it be

said, with reason and justice, that the

right and privilege of parochial and

private schools to teach in the common

school grades is inimical or detrimental

to, or destructive of, that policy? … No one

has advanced the argument that teaching

by these schools is harmful, or that their

existence with the privilege of teaching in

the grammar grades is a menace, or of

vicious potency, to the state or the

community at large… It would seem that

the act in question is neither necessary

nor essential for the proper enforcement

of the state's school policy. Society of

Sisters v. Pierce, 296 F. 928, 937 (D.

Oregon 1924).

The court clearly puts the burden of proof on

the state here, and requires the state to prove not

merely that the law is related to some legitimate

interest, but rather that the law is “necessary” or

“essential” to the state’s compulsory education policy

and the interests it serves. This is the language of

what we today call strict scrutiny, not the language of

the rational basis test.

Similar things could be said about the

reasoning in Meyer. Indeed, Justice Holmes explicitly

pointed out in his dissent in Bartels v. Iowa that the

law at issue in Meyer had a reasonable relationship to

a legitimate state interest, and should therefore have

survived a rational basis test. Bartels v. Iowa, 262

U.S. 404 (1923).

Finally, the same is true of Thompson and of

the six similar pre-Meyer state supreme court cases

related to parental rights in education. Like the Meyer

and Pierce courts, the Thompson court places the

burden of the proof on the state to justify its action,

and criticizes the one outlier case in which the parents

lost because the burden of proof was placed upon them

rather than the state:

We think it would be a reversal of the

natural order of things to presume that a

parent would arbitrarily and without

cause or reason insist on dictating the

course of study of his child in opposition

to the course established by the school

authorities. A better rule, we think, would

be to presume, in the absence of proof to

the contrary, that the request of the

parent was reasonable and just, to the

best interest of the child, and not

detrimental to the discipline and

efficiency of the school. Thompson, 103 at

p.582. (Criticizing the reasoning in State

ex rel. Andrew v. Webber, 108 Ind. 31

(1886).)

Further, the Thompson court effectively

requires the state to show that its action is narrowly

tailored to its interest in the education of future

citizens, and in the efficiency of the public schools

established for that end – an interest presumed to be

compelling. Due to the lack of evidence proving that

accommodating the parents’ request would be

incompatible with that interest, the court rules that it

is unnecessarily restrictive of parents’ educational

authority to require that all students participate in all

the lessons offered in the public school.

Even though doctrines regarding tiers of

scrutiny are a relatively recent development,

examination of these cases shows that there is clear

historical precedent for using heightened scrutiny

when fundamental rights – like parental rights – are

at stake, and therefore provides strong historical

grounds for recognizing strict scrutiny to be the

appropriate standard of review for parental rights

cases. (For more detailed arguments in defense of

these claims, see Melissa Moschella, Strict Scrutiny as

the Appropriate Standard of Review in Parental

Rights Cases: A Historical Argument, Tex. Rev. L. &

Pol. 771 (2024).)

F. Application to the Current Case

The application to the case currently before this

Court is obvious.

A historically-informed

understanding of parental rights under Pierce and

Meyer indicates that parents have the right to opt

their children out of certain lessons in the public

schools, as long as this is not incompatible with the

ability of the schools to operate in a reasonablyefficient manner. And this opt-out right is precisely

what the Petitioners are asking this Court to

vindicate.

The Court might worry that the broad

interpretation of parents’ educational rights

recommended here will lead to a flurry of litigation.

But this worry is unfounded. 3 Litigation is extremely

costly, so parents are unlikely to litigate without

serious cause. Further, if the Supreme Court clarifies

that parents have rights to opt their children out of

lessons to which they object, schools will take notice

and be more accommodating at the outset,

eliminating the need for litigation. It might then be

objected that such accommodations will be

unworkable for schools, but it has long been common

practice to offer opt-outs for sex ed lessons, and public

schools already offer individualized education

programs for special needs students as well as

programs for gifted students. Surely they ought to be

willing to do at least as much to respect parents’

constitutional rights.

For a refutation, see Helen Alvare, Families, Schools and

Religious Freedom, 54 LOY. U. CHI. L.J. 579, 621 (2022).

Further, it is essential to the rule of law that

there be clarity and consistency regarding the law’s

requirements and application. Such clarity and

consistency are sorely lacking with regard to parents’

constitutional rights, especially in the educational

sphere. Such rights touch upon a matter of no small

importance to the millions of conscientious parents

who take seriously their child-rearing responsibilities.

For many of these parents – including the Petitioners

in this case – educating their children in accord with

their beliefs is not only a natural duty that love for

their children moves them to fulfill solicitously, but

also a grave religious obligation. And in striving to

fulfill these duties conscientiously, they are not only

seeking to promote the welfare of their children, but

are also providing a crucial service to the nation as a

whole. The Court should therefore not only vindicate

the fundamental rights of the parents in this case, but

should also take this opportunity to remedy the

confused and largely erroneous state of parental

rights jurisprudence, bringing it into line with the

broad and strong respect for parental rights that is

“deeply rooted in this Nation’s history and tradition,”

and that is essential to limited government and

“implicit in the concept of ordered liberty.”

Washington v. Glucksberg, 521 US 721 (internal

quotations and citations omitted).

CONCLUSION

There are (at least) three conclusive reasons for

the Court to rule in favor of the Parents in this case

and vindicate their fundamental constitutional rights.

First, the School Board’s refusal to grant the Parents

the opt-out they seek for their children is a violation

of their religious free exercise rights under the First

Amendment. As result of this refusal, the Parents

must either forgo the valuable public benefit of a free

public education for their children, or fail to fulfill

their grave religious obligation to educate their

children in accord with their faith. Under Carson,

Espinoza, and their precedents, the School Board’s

refusal therefore amounts to an unconstitutional

condition on the Parents’ free exercise of religion.

Second, this is a case in which “the interests of

parenthood are combined with a free exercise claim.”

Wisconsin v. Yoder, 406 U.S. at 233. These two rights’

claims mutually reinforce one another, creating a

situation in which the need to apply strict scrutiny

and rule in favor of the Parents becomes even more

incontrovertible.

Third, and finally, the School Board’s actions

also violate the fundamental constitutional rights of

parents to direct the education and upbringing of their

children under Meyer and Pierce. If the Meyer-Pierce

rights of parents are correctly understood in light of

our nation’s history and tradition of state deference

toward parents as possessing primary educational

authority even within the public schools, these rights

should in themselves be a sufficient basis for a ruling

in favor of the Parents. Even though the Parents’ free

exercise claims alone would warrant granting them

the relief they seek, the Court should take this

opportunity to clarify the confused, inconsistent, and

in most cases historically inaccurate state of

constitutional jurisprudence regarding parental

rights in education. Using the approach outlined in

Glucksberg and reaffirmed in Dobbs, the Court should

bring constitutional jurisprudence on this matter into

line with our nation’s strong history and tradition of

respect for parental rights, making it clear that state

infringements on parental rights warrant strict

scrutiny, and that parents’ educational rights extend

well beyond the schoolhouse door.

Respectfully Submitted,