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

No. 24-297

In the

Supreme Court of the United States

TAMER MAHMOUD, et al.,

Petitioners,

v.

THOMAS W. TAYLOR, et al.,

Respondents.

On Writ of Certiorari to the United States

Courts of A ppeals for the Fourth Circuit

BRIEF OF AMICUS CURIAE

LEGAL INSURRECTION FOUNDATION

IN SUPPORT OF PETITIONERS

Eric Hudson

Counsel of Record

Terrazas PLLC

1001 South Capital of

Texas Highway

Building L, Suite 250

Austin, TX 78746

(512) 294-9891

ehudson@terrazaspllc.com

376847

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

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

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

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

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

I.

Parents’ Right to Control Their Children’s

Upbringing Is a Fundamental Liberty That

the Decision Below Failed to Honor . . . . . . . . . . . . 5

II.

Coercing Young Children to Embrace Views

of Sexuality Contrary to Their Family’s

Faith Burdens Their Religious Development

a nd T hus Bu rdens Petitioners’ Free

Exercise Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

III. Forcing Parents to Choose Between Public

Education and Adherence to Their Faith

Imposes an Unconstitutional Condition

on the Free Exercise of Religion . . . . . . . . . . . . . . 15

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

ii

TABLE OF CITED AUTHORITIES

Page

Cases

Abington Sch. Dist. v. Schempp,

374 U.S. 203 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Barnette v. West Virginia Bd. of Educ.,

319 U.S. 624 (1943) . . . . . . . . . . . . . . . . . . . . . . 9, 12, 13

Bd. of Educ. v. Pico,

457 U.S. 853 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Carson v. Makin,

596 U.S. 767 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . 4, 18

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

508 U.S. 520 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Edwards v. Aguillard,

482 U.S. 578 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Employment Division v. Smith,

494 U.S. 872 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Espinoza v. Montana Dept. of Revenue,

591 U.S. 464 (2020) . . . . . . . . . . . . . . . . . . . . . . . . 17, 21

Gruenke v. Seip,

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

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

iii

Cited Authorities

Page

Lee v. Weisman,

505 U.S. 577 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Mahmoud v. McKnight,

102 F.4th 191 (4th Cir. 2024) . . . . . . . . . . . . 8, 12, 13, 19

Meyer v. Nebraska,

262 U.S. 390 (1923) . . . . . . . . . . . . . . . . . . . . . . . . 2, 5, 8

Pierce v. Society of Sisters,

268 U.S. 510 (1925) . . . . . . . . . . . . . . . . . . . . . 2, 5, 8, 20

Prince v. Massachusetts,

321 U.S. 158 (1944) . . . . . . . . . . . . . . . . . . . . . . . . 3, 6, 9

Sherbert v. Verner,

374 U.S. 398 (1963) . . . . . . . . . . . . . . . . . . . 4, 14, 16, 21

Tatel v. Mt. Lebanon School District,

675 F. Supp. 3d 551 (W.D. Pa. 2023) . . . . . . . . . . . . . 13

Trinity Lutheran Church of Columbia, Inc. v.

Comer,

582 U.S. 449 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . 4, 21

Troxel v. Granville,

530 U.S. 57 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 7

Washington v. Glucksberg,

521 U.S. 702 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

iv

Cited Authorities

Page

West Virginia State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Wisconsin v. Yoder,

406 U.S. 205 (1972) . . . . . . . . . . . . . . . . . . 2, 3, 6, 10, 21

Constitutional Provisions

U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Regulations and Rules

Md. Code Regs. § 13A.04.18.01(D)(2)(e)(i) . . . . . . . . . . . 14

S. Ct. R. 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Other Authorities

Greenfield & Quiroz, Cultural Mismatch and the

Impact on Childhood Learning,

J. Applied Dev. Psychol., Vol. 34 (2013) . . . . . . . . . . . 11

https://criticalrace.org/ . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

https://equalprotect.org/ . . . . . . . . . . . . . . . . . . . . . . . . . . 1

https://legalinsurrection.com/ . . . . . . . . . . . . . . . . . . . . . . 1

v

Cited Authorities

Page

https://legalinsurrectionfoundation.org/ . . . . . . . . . . . . . 1

New guide helps parents protect kids against

‘woke’ ideologies in schools, available at

https://www.foxnews.com/media/new-guidehelps-parents-protect-kids-against-wokeideologies-schools . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Padilla-Walker & Thompson, Combating Conflicting

Messages of Values: A Closer Look at Parental

Strategies. Soc. Dev., Vol. 14, No. 2 (2005) . . . . . . . . 11

Pride Puppy! . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

1

INTEREST OF AMICUS CURIAE1

Legal Insurrection Foundation (LIF) 2 , whose

tagline is “Liberty, Equality, Family,” is a Rhode Island

tax-exempt not-for-profit corporation devoted, among

other things, to advancing the liberty interests of

American citizens, including the rights of parents to direct

the upbringing of their children. LIF publishes the Legal

Insurrection website, 3 which provides news coverage

of these issues. LIF also publishes CriticalRace.org,4

which documents the now-pervasive and expansive racebased educational and training mandates at colleges and

universities; LIF’s “Parents’ Guide to CRT” is one of LIF’s

feature products in this arena. 5 Finally, in early 2023,

LIF created the Equal Protection Project (EPP),6 which

is devoted to the fair treatment of all persons without

regard to race or ethnicity. EPP’s guiding principle is that

there is no “good” form of racism, and that the remedy

for racism never is more racism. At bottom, LIF has long

1. This brief conforms to the Court’s Rule 37, in that no

counsel for a party authored this brief in whole or in part,

and no person or entity other than Amicus Curiae the Equal

Protection Project of the Legal Insurrection Foundation funded

its preparation or submission.

2. https://legalinsurrectionfoundation.org/.

3. https://legalinsurrection.com/.

4. https://criticalrace.org/.

5. See New guide helps parents protect kids against ‘woke’

ideologies in schools, available at https://www.foxnews.com/media/

new-guide-helps-parents-protect-kids-against-woke-ideologiesschools.

6. https://equalprotect.org/.

2

documented citizens’ struggles for religious liberty, free

expression and racial discrimination, and has long held a

deep and abiding interest in ensuring religious freedom

for all citizens of all faiths and parents’ rights to raise

their children in the religion of their choice. While LIF

supports Petitioner’s arguments, it submits this amicus

brief to highlight the fundamental constitutional nature

of parental rights, this Court’s established recognition of

the unique vulnerability of youth in matters of religious

liberty, and the unconstitutional Hobson’s choice imposed

by the Board.

SUMMARY OF THE ARGUMENT

The decision below conf licts with this Court’s

precedent, allowing the government to coerce parents

into choosing between their children’s right to a public

education and their right to raise them as observant

religious citizens. But parental authority over a child’s

upbringing is a fundamental liberty, deeply rooted in

this Nation’s history. For over a century, this Court has

affirmed that parents—not the State—hold primary

authority in the care, custody, and education of their

children.

This principle is settled law. In Meyer v. Nebraska,

262 U.S. 390 (1923), and Pierce v. Society of Sisters, 268

U.S. 510 (1925), this Court upheld parental rights against

state interference. Prince v. Massachusetts, 321 U.S.

158 (1944), and Wisconsin v. Yoder, 406 U.S. 205 (1972),

reaffirmed that parents—not the State—direct their

children’s religious upbringing. Most recently, in Troxel

v. Granville, the Court recognized parental control as

perhaps the oldest of the fundamental liberty interests.

3

530 U.S. 57, 65 (2000). Yoder further confirms that the

“primary role of the parents in the upbringing of their

children is now established beyond debate as an enduring

American tradition.” 406 U.S. at 232.

The Fourth Circuit disregarded this settled precedent.

By trivializing parental concerns in deference to stateimposed curricula, the lower court undermined “the

private realm of family life which the state cannot enter.”

Prince, 321 U.S. at 166. This Court must reaffirm that

parental authority over their children’s moral and religious

development is paramount. Government policies that

interfere with this right—such as the Board’s mandated

curriculum—demand strict scrutiny.

Second, compelling young children to participate in

classroom activities that contradict their family’s religious

beliefs violates the Free Exercise Clause. What may be

exposure for adults is indoctrination for impressionable

children. Petitioners’ children are elementary-school

age—an age when authority figures heavily shape beliefs.

Coercing them to accept, or at minimum, refrain from

dissenting against, state-imposed moral views pressures

them to abandon their faith. The State has no authority

to override parents in shaping their children’s worldview

on profound moral questions. The Free Exercise Clause

prohibits not only bans on religious worship but also

government actions that burden religious upbringing.

Here, the burden is clear: the Board’s curriculum signals

to children that their family’s religious beliefs are invalid

or, at best, no more valid than their opposites. Courts have

rightly recognized this as coercive. The same holds true

here. The Board’s forced curriculum violates Petitioners’

4

religious exercise and cannot withstand constitutional

scrutiny.

Finally, the Board’s policy is coercive in another

way: it forces religious parents to choose between their

faith and a public benefit—access to public education.

Decades of Free Exercise jurisprudence confirm that

the government may not condition public benefits on the

surrender of religious rights. See Sherbert v. Verner, 374

U.S. 398 (1963); Trinity Lutheran Church of Columbia,

Inc. v. Comer, 582 U.S. 449 (2017). Here, the benefit is a

fundamental right—public education, an essential service

supported by taxpayers and legally mandated for all

children. The Board conditions full enjoyment of that

benefit on submission to state-imposed instruction that

violates religious convictions. Devout parents who cannot,

in good conscience, expose their children to such teachings

must either withdraw from public schools—bearing the

financial burdens of private or home education—or face

truancy penalties. The Free Exercise Clause prohibits

such coercion.

This Court has long held that government cannot

force citizens to choose between their religious beliefs and

receiving a government benefit. Carson v. Makin, 596 U.S.

767, 784 (2022). That principle controls here. The Board’s

policy excludes religious families from public schooling

unless they submit to ideologically charged curricula.

Each of these violations independently warrants

reversal. Together, they present an overwhelming case

that the Fourth Circuit erred. This Court should hold that

the Maryland school district’s no-opt-out policy violates

5

the Free Exercise Clause. At a minimum, the judgment

below should be reversed, and the case remanded for strict

scrutiny—scrutiny the Board’s policy cannot survive. The

First Amendment and our Nation’s traditions demand no

less.

ARGUMENT

I.

Parents’ Right to Control Their Children’s

Upbringing Is a Fundamental Liberty That the

Decision Below Failed to Honor

From the founding of the Republic, American law

has affirmed that parents—not the government—hold

the primary responsibility for raising their children.

This principle, deeply rooted in history and enshrined

in the Constitution, safeguards parental authority as a

fundamental liberty. Nearly a century ago, this Court

declared: “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.” Pierce v. Soc’y of Sisters,

268 U.S. 510, 535 (1925).

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

the Court struck down state efforts to override parental

authority in education, explicitly recognizing the liberty

interest of parents to bring up children and direct their

education in line with family values. These cases cemented

the Due Process Clause of the Fourteenth Amendment

as a safeguard against governmental encroachment on

parental rights.

6

Subsequent decisions reinforced this foundation.

In Prince v. Massachusetts, 321 U.S. 158 (1944), the

Court, while upholding a child labor law, reaffirmed that

custody, care, and nurture reside first with parents, who

are uniquely responsible for their children’s moral and

intellectual development. Yoder, 406 U.S. 205 (1972),

extended this principle further. There, the Court ruled

that compelling Amish children to attend public school

beyond eighth grade violated the Free Exercise Clause, as

it interfered with the parents’ right to raise their children

in accordance with their religious traditions. The Court

affirmed 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.” 406 U.S. at 213–14. The decision left no doubt:

“This primary role of the parents in the upbringing of

their children is now established beyond debate as an

enduring American tradition.” Id. at 232.

Though Yoder was grounded in Free Exercise, its

reasoning cannot be separated from the broader doctrine

of parental rights. The Court recognized that Wisconsin’s

school mandate “affirmatively compel[led] [the Amish

parents], under threat of criminal sanction, to perform

acts undeniably at odds with fundamental tenets of their

religious beliefs.” 406 U.S. at 218. The Amish way of life

depended on parental authority in shaping children’s

moral and vocational futures, which state-imposed

schooling threatened to erode. Yoder thus stands at the

intersection of religious liberty and parental authority,

emphasizing that government cannot intrude into the

“private realm of family life” to dictate a child’s moral

and religious development.

7

Decades later, Troxel v. Granville, reaffirmed that

parental rights remain fundamental. 530 U.S. 57 (2000). A

plurality of the Court described the right to direct a child’s

upbringing as “perhaps the oldest of the fundamental

liberty interests” protected by the Due Process Clause.

Id. at 65. Justice Thomas, in concurrence, argued that

parental rights warrant strict scrutiny, emphasizing

that the state may not infringe on the fundamental right

of parents to rear their children without some powerful

justification. Id. at 80 (Thomas, J., concurring). No Justice

disputed the fundamental nature of parental rights.

The Montgomery County policy in question defies this

established precedent. By mandating that all students,

regardless of parental objections, be subjected to

government-imposed views on gender and sexuality, the

Board usurps the very authority the Constitution reserves

for parents. This is not the case of the State intervening

to protect children from abuse or neglect. Instead, it is

an outright displacement of parental judgment on matters

of profound moral significance. The Board’s refusal to

permit opt-outs effectively dictates a six-year-old’s moral

education, overriding the family’s religious convictions.

That is a power the Constitution does not grant the State.

The Fourth Circuit’s approach compounds this error.

The majority ignored the parents’ well-established

liberty interest and framed the issue as though only the

children’s rights were at stake. It suggested that unless

the school actively forced a child to violate their religion—

such as compelling them to recite a creed—parents had

no constitutional claim. But this reasoning misreads

precedent. The question is not whether the child is directly

coerced into an act of worship; rather, it is whether the

8

State is interfering with parental authority over the child’s

moral upbringing. Pierce directly rejected the notion

that the government can “standardize its children” by

forcing them into state-mandated beliefs. 268 U.S. at 535.

By disregarding parents’ objections, the Board treated

children as mere creatures of the State, to be inculcated

with whatever values the government chooses—parental

opposition notwithstanding.

This approach contradicts our constitutional tradition.

In Meyer, the Court struck down a state law banning

foreign-language instruction before eighth grade,

recognizing that parents have a right to direct their child’s

education without unjustified government interference.

The Court condemned Nebraska’s goal of enforcing civic

unity through standardized schooling: “The desire of the

Legislature to foster a homogeneous people . . . is easy to

appreciate . . . But the means adopted, we think, exceed

the limitations upon the power of the State and conflict

with rights assured to [the plaintiffs].” 262 U.S. at 402–03.

If the State cannot dictate which language a child learns,

it surely cannot dictate when and how a child must be

introduced to sensitive questions of sexual morality—

especially in defiance of religious conviction.

It is true that public schools retain discretion in

shaping curricula. But as the Fourth Circuit dissent

rightly observed, that discretion is not absolute and must

comply with the transcendent imperatives of the First

Amendment. Mahmoud, 102 F.4th at 217-18 (quoting Bd. of

Educ. v. Pico, 457 U.S. 853, 864 (1982) (plurality op.)). The

Constitution does not allow the government to override

fundamental rights under the guise of pedagogical policy.

A school could not compel all students to affirm a particular

9

political ideology—such compulsion would violate freedom

of conscience. Likewise, compelling young children to

internalize values that contradict their family’s faith is

a direct affront to parental rights. At a minimum, the

Constitution demands that parents be given the right to

opt out. The Board’s refusal to permit any accommodation

reflects a dangerous assumption: that the government’s

interest in “inclusion” education categorically outweighs

parental rights. That assumption must be rejected.

Here, the infr ingement on parental r ights is

undeniable. The Petitioners do not seek to dictate what

other students learn; they simply seek the right to shield

their own children from exposure to materials that conflict

with their religious beliefs. This request aligns with the

Court’s precedent, which has consistently upheld the right

of individuals to opt out of government-imposed orthodoxy.

Barnette v. West Virginia Bd. of Educ., 319 U.S. 624

(1943), upheld the right to be let alone by exempting

students from forced flag salutes. Yoder allowed Amish

families to withdraw their children from high school.

The present case is far less sweeping—Petitioners seek

only to remove their own children from lessons while

otherwise remaining in public school. That is a modest

accommodation well within the “enduring American

tradition” of respecting parental authority, particularly

in the domain of religious upbringing.

By insisting on absolute compliance, the Board

obliterates parental rights. It “respect[s]” no “private

realm of family life.” Prince, 321 U.S. at 166. Worse

still, its actions suggest open hostility toward religious

parents, treating them as obstacles rather than partners

in education. The Constitution does not allow such state-

10

mandated ideological conformity. As Yoder recognized,

even the government’s legitimate interest in education

yields when it directly collides w ith fundamental

constitutional rights. 406 U.S. at 221.

The right of parents to direct a child’s upbringing—

especially in matters of faith and morals—is among

the most cherished liberties in our legal tradition. It is

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

“implicit in the concept of ordered liberty.” Washington

v. Glucksberg, 521 U.S. 702, 720–21 (1997) (cleaned up).

That right does not dissolve at the schoolhouse gate. The

Fourth Circuit’s failure to recognize this fundamental

liberty was a grave error. This Court should reaffirm that

any government policy infringing upon parental rights—

particularly in the religious formation of children—must

withstand strict scrutiny. The Board’s policy cannot

survive such scrutiny. It must be struck down.

II. Coercing Young Children to Embrace Views

of Sexuality Contrary to Their Family’s Faith

Burdens Their Religious Development and Thus

Burdens Petitioners’ Free Exercise Rights

The Free Exercise Clause protects not only private

worship but also the right of parents to pass their faith to

their children. A fundamental aspect of religious liberty

is the parental right to direct the religious upbringing

of their children. Wisconsin v. Yoder, 406 U.S. at 21314. The Constitution recognizes that parents, not the

government, bear the primary duty to educate their

children in matters of faith and morality. When the State

undermines that right—by exposing young children to

teachings that contradict their family’s faith—it raises

11

serious constitutional concerns. This is especially true

when the children are too young to critically evaluate

conflicting messages and instead absorb them as truth.

Psychological research confirms that children at this stage

are highly impressionable, looking to authority figures for

moral guidance and struggling to distinguish between

competing perspectives. The State may not impose an

ideological orthodoxy on a captive audience of children

absent a compelling interest, and even then, it must tread

carefully. Here, the Board has disregarded that principle,

crossing from exposure into coercion.

The coercive effect of the Montgomery County

curriculum is evident when considering the audience:

children as young as three, up to ten or eleven. Studies in

child psychology confirm that children at this stage are

highly impressionable and dependent on authority figures

for moral guidance. Empirical research establishes that

exposure to ideological contradictions in early education

leads to cognitive dissonance, psychological stress, and

diminished parental influence.7

Studies show that young children lack the cognitive

maturity to compartmentalize conflicting values and

instead internalize what trusted adults present as

truth. Courts have recognized the same phenomena for

decades. As this Court noted in Edwards v. Aguillard,

“[s]tudents in [public schools] are impressionable and

their attendance is involuntary.” 482 U.S. 578, 584 (1987).

7. See, e.g., Greenfield & Quiroz, Cultural Mismatch and

the Impact on Childhood Learning, J. Applied Dev. Psychol., Vol.

34, pp. 108–118 (2013); Padilla-Walker & Thompson, Combating

Conf licting Messages of Values: A Closer Look at Parental

Strategies. Soc. Dev., Vol. 14, No. 2 (2005).

12

Similarly, in Abington Sch. Dist. v. Schempp, Justice

Goldberg emphasized that state-imposed religious or

anti-religious exercises affect children’s beliefs due to

their impressionability. 374 U.S. 203, 307 (1963) (Goldberg,

J., concurring). If the State cannot promote religion in

school, it likewise cannot undermine religion by imposing

conflicting moral teachings on impressionable students.

The purpose of the Board’s LGBTQ-inclusion

curriculum is to reshape children’s beliefs on gender and

marriage. The Board openly seeks to replace traditional

religious teachings with the view that all gender identities

and family structures are equally valid. Books like

Pride Puppy! introduce concepts such as drag queens to

impressionable, young minds. Mahmoud v. McKnight, 102

F.4th 191, 198 (4th Cir. 2024). Other books depict same-sex

couples or transgender characters, portraying dissenters

as intolerant. The curriculum does not neutrally present

different views; it affirms one side of a moral debate while

dismissing religious perspectives. Teachers are instructed

to deflect religious-based objections, reinforcing the

school’s ideological stance. This effectively pressures

children to reject their parents’ faith and conform to the

school’s message. Psychological coercion of this kind—

especially against children—is no less unconstitutional

than direct compulsion.

The Free Exercise Clause forbids government officials

from coercing religious believers into changing or silencing

their convictions. As Justice Jackson declared, “If there is

any fixed star in our constitutional constellation, it is that

no official . . . can prescribe what shall be orthodox in . . .

religion.” West Virginia State Bd. of Educ. v. Barnette,

319 U.S. 624, 642 (1943). In Barnette, the Court struck

13

down mandatory flag salutes for Jehovah’s Witness

students, recognizing that coerced affirmation of belief

violates the First Amendment. The principle applies

here. The Board’s policy forces children to internalize a

secular moral orthodoxy that contradicts their religious

beliefs. Unlike Barnette, where children could refuse to

salute the flag, here, students are a captive audience with

no opt-out. The Board eliminated exemptions precisely

to ensure exposure to its message. This is coercion, not

mere education.

Courts have recognized that compulsory ideological

instruction burdens religious freedom. In Tatel, a federal

court allowed parents’ Free Exercise claims to proceed

after a teacher introduced transgender topics to firstgraders without parental notice or opt-out. 675 F. Supp.

3d 551 (W.D. Pa. 2023). Citing Third Circuit and Supreme

Court precedent, the court emphasized that “[p]ublic

schools must not forget that ‘in loco parentis’ does not

mean ‘displace parents.’” Id. at 561 (quoting Gruenke v.

Seip, 225 F.3d 290, 305 (3d Cir. 2000)). Instead, “parents,

not schools, have the primary responsibility to inculcate

moral standards, religious beliefs, and elements of good

citizenship.” Id. Likewise, in Mahmoud, the Fourth Circuit

dissent recognized that the Board’s policy prioritizes

ideological goals over religious rights. 102 F.4th at 217.

These rulings underscore that the Free Exercise Clause

extends beyond formal worship to protecting parental

authority over religious upbringing.

The burden here is clear: the Board’s policy directly

interferes with parents’ ability to raise their children in

their faith. Free Exercise violations are not limited to

outright prohibitions on worship; they include policies that

14

force religious believers to act against their conscience

or create undue burdens on religious practice. See

Sherbert, 374 U.S. at 404. The Board’s curriculum makes

it significantly harder for Petitioners to instruct their

children in their faith, as the school actively contradicts

their teachings. Parents are left to counteract the school’s

influence, creating confusion for young children. The

Constitution does not permit the State to impose such

burdens on religious families.

For many faiths, religious practice includes avoiding

the normalization of conduct deemed sinful. By compelling

students to participate in LGBTQ-affirming instruction,

the Board forces them into an ideological exercise contrary

to their beliefs. This situation is analogous to Lee v.

Weisman, 505 U.S. 577 (1992), where the Court found a

school’s graduation prayer coercive because it pressured

students to participate in religious exercises. Here, the

school imposes a secular moral doctrine, coercing religious

students into exposure without an opt-out. If psychological

coercion in religious settings is impermissible under Lee,

then psychological coercion against religious beliefs must

also be unconstitutional.

The State’s interest does not justify this infringement.

Accommodating Petitioners would not disrupt the Board’s

broader educational mission. Petitioners do not seek to

prevent others from learning this material; they simply

request an exemption for their children. Indeed, religious

accommodations in public education are well-established.

Maryland law itself mandates opt-out policies for

instruction on “family life” and “human sexuality.” Md.

Code Regs. § 13A.04.18.01(D)(2)(e)(i). The existence of

such policies undermines the Board’s claim that universal

15

participation is necessary. That the Board refuses to

provide an opt-out suggests not necessity, but hostility

toward religious dissent. This hostility violates the Free

Exercise Clause’s neutrality requirement. In Church of

Lukumi Babalu Aye, Inc. v. Hialeah, the Court struck

down laws targeting religious practice, holding that the

government may not craft policies to suppress religious

views. Here, the Board’s refusal to accommodate religious

objectors demonstrates an intent to override their beliefs,

not merely educate. 508 U.S. 520, 534 (1993). Therefore,

the policy burdens religious exercise, not as an unintended

consequence, but as its very design.

The Board’s curriculum, as applied to Petitioners’

children without opt-out, constitutes religious coercion.

It disrupts the children’s faith formation and obstructs

parents’ right to raise their children in accordance with

their beliefs. The Free Exercise Clause forbids such statemandated indoctrination. The Court should recognize

that Petitioners have demonstrated a likely Free Exercise

violation and are entitled to constitutional protection. At

minimum, the case should be remanded with instructions

that the burden triggers strict scrutiny—a standard the

Board’s policy cannot survive.

III. Forcing Parents to Choose Between Public

Education and Adherence to Their Faith Imposes

an Unconstitutional Condition on the Free Exercise

of Religion

In addition to the direct burden on relig ious

upbringing discussed above, the Board’s no-opt-out policy

is independently unconstitutional because it conditions

a public benefit on the surrender of religious rights.

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The benefit here is the free public education to which

all children in Maryland are entitled by law. Public

schooling is funded by taxpayers (including Petitioners)

and is a baseline government service. The Supreme

Court has long held that the government may not deny

or penalize a generally available benefit because of a

person’s religious exercise. To do so is to exert a form of

coercion—pressuring individuals to forsake their religious

convictions to receive an otherwise available public good.

This doctrine, sometimes called the “unconstitutional

conditions” doctrine in the religion context, traces back

to at least the 1960s and has been robustly reaffirmed

in recent decisions. Under it, the Board’s ultimatum to

Petitioners—“you can have public education for your

kids or you can live by your faith, pick one”—is blatantly

unlawful.

As noted, Sherbert v. Verner, is a foundational

case. There, a Seventh-day Adventist was denied state

unemployment benefits after refusing a job that required

work on Saturday (her Sabbath). 374 U.S. 398 (1963). The

Court held this violated the Free Exercise Clause. Justice

Brennan wrote: “It is too late in the day to doubt that

the liberties of religion and expression may be infringed

by the denial of or placing of conditions upon a benefit or

privilege.” Id. at 404. The Sherbert Court reasoned that

forcing a person to choose between following her religion

(not working on Sabbath) and receiving a government

benefit (unemployment compensation) effectively penalized

her religion. This principle was not new even then; the

Court cited earlier cases involving conditioned benefits

and speech. What Sherbert crystallized for religion is

that the withdrawal of a generally available public benefit,

17

because of religious conduct, imposes a burden requiring

compelling justification.

Although the Sherbert test (which asked whether a

law substantially burdened religion and, if so, applied

strict scrutiny) was effectively overruled for most cases

by Employment Division v. Smith, 494 U.S. 872 (1990)

for neutral laws, the fundamental insight about conditions

on benefits remains vital. Indeed, post-Smith, the Court

has continued to enforce the rule that the government

cannot target religious adherents by disqualifying them

from public benefits on account of their religion. Trinity

Lutheran Church v. Comer, 582 U.S. 449, (2017), is directly

on point. Missouri had a program providing grants to

resurface playgrounds with rubber material; it excluded a

church-run preschool from eligibility solely because it was

religious. The Court ruled this violated the Free Exercise

Clause, holding that the policy “puts Trinity Lutheran to a

choice: It may participate in an otherwise available benefit

program or remain a religious institution.” 582 U.S. at

450. Forcing that choice was “odious to our Constitution.”

Id. at 467. The Court quoted Sherbert’s maxim about

conditions on benefits, reaffirming that point even as it

distinguished Smith (because Missouri’s policy was not

“generally applicable” if it excluded religious entities). The

takeaway is that disqualifying an entity or person from a

public benefit solely because of their exercise of religion

triggers the highest scrutiny and presumptively violates

Free Exercise.

The same log ic was extended in Espinoza v.

Montana Dept. of Revenue, 591 U.S. 464 (2020), where

Montana barred students from using generally available

scholarship funds at religious schools. The Court held

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Montana’s exclusion of religious options violated Free

Exercise because the state “cannot disqualify some

private schools solely because they are religious.” Id.

at 487. More recently, in Carson v. Makin, 596 U.S. 767,

(2022), the Court struck down Maine’s restriction that

prohibited families from applying state tuition assistance

to schools that provided religious instruction. Critically,

Carson emphasized that once a state decides to provide

a benefit (there, tuition aid for students without a local

public school), it cannot exclude families or schools on

the basis of religious exercise. Id. at 596 U.S. 779-80.

The Court reiterated: “[W]e have repeatedly held that a

State violates the Free Exercise Clause when it excludes

religious observers from otherwise available public

benefits.” Id. at 778. In Carson, the state argued it wasn’t

punishing religion but simply not funding it, but the Court

saw through that: the families were being denied the

benefit (tuition aid) solely because they chose a religious

school. That violated the “unconstitutional conditions”

principle.

Now apply this doctrine to our case. The public

benefit at issue is a free public school education. Every

family in Montgomery County is entitled by law to send

their children to public school, and schooling (public or

equivalent private/home) is compulsory. Petitioners want

to utilize this public benefit; they have every right to,

especially as taxpayers and citizens. However, the Board

has conditioned full enjoyment of that benefit on acceptance

of certain instruction that contravenes Petitioners’

religion. In effect, the Board told religious parents: If

you want your child to attend our public schools, you must

surrender your religious objection to early, values-laden

LGBTQ instruction. If you won’t surrender it, your only

19

recourse is to pull your child out (foregoing the benefit) or

violate your conscience by staying in. This is precisely the

kind of unconstitutional choice that this Court has found

violates religious freedom. It is not quite as explicit as a

statute saying “no religious people may enroll in public

school,” but the practical impact is similar for those with

sincere objections to the curriculum. They are being

excluded from a benefit “solely because of their religious

exercise”—their exercise in this context being the act of

raising their child according to their faith, which includes

shielding the child from certain teachings.

The Fourth Circuit majority avoided this conclusion

by affirming a decision by the district court that grounded

its reasoning (as stated by the dissent) that the Board’s

policy “did not force the parents to forego exercising

their religion” because they could still teach religion at

home. Mahmoud v. McKnight, 102 F.4th at 223. This

reasoning fundamentally misses the mark. The question

is not whether parents can technically still pray or talk

about God at home. Of course they can, just as the plaintiff

in Sherbert could still theoretically observe her Sabbath

even if denied benefits, or the church in Trinity Lutheran

could still worship even without a playground grant. The

question is whether the government is imposing a penalty

or cost on the free exercise of religion. Here, the penalty

for Petitioners’ religious stance (objecting to objectionable

curriculum) is the loss of an important benefit—the ability

to keep their children in public school without spiritual

compromise. The Constitution does not countenance that

trade-off.

It bears noting that this coercive dynamic implicates

not just Free Exercise but also what the Court in Pierce

20

implicitly recognized—that forcing all children into only

one mode of education (state-run) is tyrannical. While

Pierce struck down Oregon’s ban on private schooling, the

essence was that the state cannot make public education

effectively compulsory to the exclusion of parental choice.

Here, by making public education unusable for families

unless they abandon a key aspect of their religion, the

Board is achieving indirectly what Oregon attempted

directly: a monopoly on the hearts and minds of all

children. Parents are legally allowed in Maryland to opt

for private or homeschooling; that option is not outlawed

as it was in Pierce. But for many families, practical and

financial realities mean public school is the only feasible

choice. They shouldn’t have to sacrifice their core values

to use it. The Constitution protects their ability to both be

faithful and partake in public life (including public schools).

It is also noteworthy that the Board’s position here

undermines the very idea of public school as a place

for all. Public schools have long accommodated various

religious needs (dietary, dress, excusals for religious

holidays, etc.) to ensure that students of different faiths

can attend without violating their beliefs. Montgomery

County itself surely has students excused from certain

activities (say, Jehovah’s Witnesses not forced to sing

patriotic songs, Muslim students allowed to step out for

prayer, etc.). The opt-out for family life instruction was

exactly such a common accommodation. By revoking it, the

Board signaled that religious families who disagree with

the new sexual ideology no longer welcome participants

in the school community unless they conform. This is a

profound departure from our commitment to pluralism

and the Free Exercise Clause’s guarantee that one may

be religious and a full member of society. It sends a

21

message: “If you hold traditional religious beliefs about

gender, you better keep them to yourself or keep your kids

at home.” But as this Court recently reaffirmed, religious

observers cannot be treated as second-class citizens. See,

e.g., Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 525-26

(2022). Excluding devout families from public education

unless they bend the knee to the state’s ideology is the

essence of second-class status.

The coercion here is also akin to the pressure

identified in Yoder. There, Amish parents faced a choice

between obeying state law (sending kids to high school)

or adhering to their religious practice (pulling them out

after 8th grade), with potential criminal sanctions if they

chose the latter. The Court found that law “coercive”

and unjustified as applied to the Amish, because it would

inescapably force them to act in violation of their genuine

religious beliefs. 406 U.S. at 218.

It’s true that Yoder’s facts were unique, but the

principle—do not force people into a corner where

their only options are violating the law or violating

their faith—is a general one in free exercise law.

Petitioners’ situation shares that structure: comply with

the school’s indoctrination (violate your religious duty

to shield your child) or pull your child out (suffer loss

of educational opportunity and possible legal hassle of

setting up alternative schooling). That is an inescapably

coercive choice for conscientious parents, just as much as

Wisconsin’s law was for the Amish. The major difference

is the penalty. In Yoder it was prosecution; here it is the

deprivation of a public benefit. But as demonstrated,

deprivation of a benefit is sufficient to trigger strict

scrutiny under Sherbert/Trinity Lutheran/Espinoza/

22

Carson. It is a penalty in its own right—indeed, education

is arguably a more significant loss than unemployment

checks or playground surfacing funds.

Some might argue that the Board isn’t targeting

religion because the curriculum applies to everyone. But

that is irrelevant under the benefit line of cases. Those

cases consider exclusion or conditionality. Here, religious

parents and children are effectively excluded from an

otherwise general benefit (undisturbed public schooling)

because of their religion. That is a Free Exercise violation

whether the policy is deemed “neutral” on its face.

At bottom, the Board’s policy operates as an

unconstitutional condition on the exercise of religion.

It tells parents: If you want your child to benefit from

public schooling, you must subject them to teaching

those conflicts with your religion. If you refuse, you are

effectively excluded from this public benefit. That is legally

indistinguishable from denying a church a public contract

because it’s a church or denying a student aid because

she attends a religious school—practices the Court has

invalidated. Our constitutional tradition safeguards

religious individuals from having to make the cruel choice

between faith and public life. The promise of the Free

Exercise Clause is that one may be fully religious and fully

American, participating in all public institutions without

discrimination. The Board’s policy broke that promise

for Petitioners. This Court’s intervention is needed to

restore it.

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CONCLUSION

For the foregoing reasons, and those given by

Petitioners, the Court should reverse the decision of the

Fourth Circuit and hold that the Montgomery County

Board of Education’s refusal to accommodate religious

objectors violates the First Amendment. The judgment

below should be reversed and the case remanded with

instructions to grant appropriate injunctive relief in favor

of Petitioners.

Respectfully submitted,

Eric Hudson

Counsel of Record

Terrazas PLLC

1001 South Capital of

Texas Highway

Building L, Suite 250

Austin, TX 78746

(512) 294-9891

ehudson@terrazaspllc.com

M arch 2025