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
v.
THOMAS W. TAYLOR, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONERS
SARAH M. HARRIS
Acting Solicitor General
Counsel of Record
YAAKOV ROTH
Acting Assistant Attorney
General
NICHOLAS S. CROWN
Assistant to the Solicitor
General
MICHAEL S. RAAB
LOWELL V. STURGILL JR.
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
Whether a public school’s decision to compel children
to participate in instruction that violates their parents’
sincere religious convictions—without notice or an opportunity to opt out—constitutes a cognizable burden
under the Free Exercise Clause of the First Amendment.
(I)
TABLE OF CONTENTS
Page
Interest of the United States....................................................... 1
Introduction................................................................................... 1
Statement:
A. Legal and factual background ......................................... 4
B. Proceedings below ............................................................. 9
Summary of argument ............................................................... 12
Argument:
Schools burden parents’ free exercise rights by
disallowing opt-outs for compelled instruction that
violates parents’ faiths........................................................... 15
A. Parents engage in protected religious conduct
by following religious obligations as to childrearing............................................................................. 15
B. Public schools burden religious exercise by
requiring parents to choose between religious
obligations and forgoing public education................... 19
C. The Fourth Circuit’s and respondents’ contrary
approach lacks merit ..................................................... 26
D. Vacatur and remand for further proceedings is
warranted ....................................................................... 32
Conclusion ................................................................................... 34
TABLE OF AUTHORITIES
Cases:
Bowen v. Roy, 476 U.S. 693 (1986) ................................. 22, 29
Brown v. Entertainment Merchs. Ass’n,
564 U.S. 786 (2011).............................................................. 33
Burwell v. Hobby Lobby Stores, Inc.,
573 U.S. 682 (2014).............................................................. 20
Cantwell v. Connecticut, 310 U.S. 296 (1940) ..................... 16
Carson v. Makin, 596 U.S. 767 (2022) ............... 13, 14, 17-21,
23, 24, 30, 31
(III)
IV
Cases—Continued:
Page
Church of the Lukumi Babalu Aye, Inc.
v. City of Hialeah, 508 U.S. 520 (1993) .......... 16, 20, 32, 33
Espinoza v. Montana Dep’t of Revenue,
591 U.S. 464 (2020).......................................17, 18, 21, 23, 30
Fowler v. Rhode Island, 345 U.S. 67 (1953) ........................ 16
Fulton v. City of Philadelphia,
593 U.S. 522 (2021).............. 13, 14, 16, 17, 19, 21, 22, 26, 29,
30, 32, 33
Hernandez v. Commissioner,
490 U.S. 680 (1989).............................................................. 28
Holt v. Hobbs, 574 U.S. 352 (2015) ....................................... 20
Kennedy v. Bremerton Sch. Dist.,
597 U.S. 507 (2022)............................................ 12, 16, 20, 32
Lyng v. Northwest Indian Cemetery Protective
Ass’n, 485 U.S. 439 (1988) ............................................ 18, 19
McDaniel v. Paty, 435 U.S. 618 (1978)................................ 16
Meyer v. Nebraska, 262 U.S. 390 (1923) ............................. 23
Morse v. Frederick, 551 U.S. 393 (2007) ............................. 31
New York v. Cathedral Acad.,
434 U.S. 125 (1977).............................................................. 28
Pierce v. Society of Sisters, 268 U.S. 510 (1925)................. 23
Sherbert v. Verner,
374 U.S. 398 (1963)............................. 2, 11, 16, 21, 24, 31, 33
Tandon v. Newsom, 593 U.S. 61 (2021) ......................... 32, 33
Thomas v. Review Bd. of the Ind. Emp’t Sec. Div.,
450 U.S. 707 (1981).......................................17, 18, 20, 21, 26
Trinity Lutheran Church of Columbia,
Inc. v. Comer, 582 U.S. 449 (2017) ........................ 21, 23, 30
Wisconsin v. Yoder,
406 U.S. 205 (1972)................................. 17, 18, 22, 23, 26, 28
V
Constitution, statutes, and regulations:
Page
U.S. Const.:
Amend. I ......................................................... 15, 23, 30, 31
Free Exercise Clause ............... 1, 2, 3, 9-12, 14-16, 18,
20, 22, 23, 26, 33
Free Speech Clause..................................................... 9
Amend. XIV (Due Process Clause) ..................... 9, 15, 23
Religious Freedom Restoration Act of 1993,
42 U.S.C. 2000bb et seq. ..................................................... 20
42 U.S.C. 2000bb-2(4)........................................................ 1
Religious Land Use and Institutionalized Persons
Act of 2000, 42 U.S.C. 2000cc et seq. ................................. 20
2000cc-5(7)(A) .................................................................. 18
20 U.S.C. 1232h(c) ................................................................... 1
20 U.S.C. 6312(e)(2)(A) ........................................................... 1
Md. Code, Educ.:
§ 7-301(a-1)(1) .................................................................... 4
§ 7-301(e) ............................................................................ 4
§ 7-301(e)(2) .................................................................. 4, 24
Md. Code Regs. (2019):
13A ...................................................................................... 4
13A.04.18.01.C(1)(c)........................................................... 4
13A.04.18.01.D(2)(a) .......................................................... 4
13A.04.18.01.D(2)(d) .......................................................... 4
13A.04.18.01.D(2)(e)(i)................................................. 4, 31
Miscellaneous:
Dep’t of Educ., Nat’l Ctr. for Educ. Statistics,
Enrollment and State Education Practices (SEP)
(2020), https://nces.ed.gov/programs/
statereform/tab1_2-2023.asp ............................................... 4
VI
Miscellaneous—Continued:
Page
Sherif Girgis, Defining “Substantial Burdens”
on Religion and Other Liberties,
108 Va. L. Rev. 1759 (2022) .......................................... 18, 24
Samuel Johnson, A Dictionary of the English
Language (1755):
Vol. 1 ................................................................................. 15
Vol. 2 ................................................................................. 19
Michael W. McConnell, The Origins and Historical
Understanding of Free Exercise of Religion,
103 Harv. L. Rev. 1409 (1990) ........................................... 17
NPR, This county is the most religiously diverse in
the U.S. (Nov. 16, 2024), https://perma.cc/766QWS4Y ..................................................................................... 5
In the Supreme Court of the United States
No. 24-297
TAMER MAHMOUD, ET AL., PETITIONERS
v.
THOMAS W. TAYLOR, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONERS
INTEREST OF THE UNITED STATES
This case concerns the application of the Free Exercise Clause of the First Amendment to a county school
board’s policy that compels children to participate in
classroom instruction contrary to the sincerely held religious convictions of their parents. The United States
has a substantial interest in preserving the constitutional
guarantee of the free exercise of religion. Congress has
also enacted statutes addressing religious burdens, 42
U.S.C. 2000bb-2(4), 2000cc-5(7)(A), and religious accommodations in the education context, 20 U.S.C. 1232h(c),
6312(e)(2)(A). The United States thus has a substantial
interest in this case.
INTRODUCTION
This case involves whether a State burdens parents’
rights under the Free Exercise Clause by refusing to
(1)
2
allow them to opt their children out of compulsory classroom instruction that contravenes the parents’ religious
obligations to their children. Under this Court’s precedents, the answer is undoubtedly yes. Sixty years ago,
the Court considered it “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.” Sherbert v. Verner, 374 U.S. 398, 404
(1963). That principle resolves this case.
Petitioners are parents whose various faiths require
them to direct whether, when, and how their children
should be taught about gender and sexuality. Respondent Montgomery County Board of Education (Board)
initially allowed parents to opt their children out of
classroom instruction involving storybooks addressing
those issues—instruction that petitioners sincerely believe conflicts with their faiths. The Board then reversed
course, mandating that all elementary-school children
participate in such instruction without regard to parents’ religious objections. Under that policy, parents
can respect their religious obligations vis-à-vis their
children only by forgoing the benefit of a free public education, since the Board has declined to give notice before the storybooks will be used and refuses to permit
opt-outs. That is textbook interference with the free exercise of religion.
The Fourth Circuit below instead held that petitioners failed to show any cognizable burden. That court
correctly recognized that the Free Exercise Clause protects against both “direct coercion” and “indirect coercion or penalties on the free exercise of religion.” Pet.
App. 24a-25a (citation omitted). But the court then held
that burdens on religious exercise arise only when there
is “coerc[ion] * * * to believe or act contrary to [parents]
3
religious views.” Id. at 31a. The court found no such
burden by reasoning that children were “simply hearing
about other views,” which in the court’s view “does not
necessarily exert pressure to believe or act differently
than one’s religious faith requires.” Id. at 35a.
That reasoning—which respondents echo, Br. in Opp.
18-27—is flawed. It overlooks that the relevant religious practices are parents’ sincere beliefs that sending
their children to participate in the compelled classroom
instruction at issue violates their religious obligations.
The Board compromises parents’ ability to act consistent with those beliefs regardless of whether their
children feel pressured or coerced by the instruction.
The Fourth Circuit’s and respondents’ contrary approach
would require unworkable line-drawing between “exposure” versus “coercion” of children—a distinction that
presumably varies by age, the nature of the instruction,
and other factors. Such line-drawing would aggravate
the free-exercise burden. Courts would improperly
second-guess matters of faith by deciding whether
those children would feel coerced or pressured by particular instruction. But the relevant burden arises because petitioners’ faiths teach that their children must
be protected from such material.
To resolve the narrow but important question presented, this Court need only hold that the Board has inflicted a cognizable burden on petitioners’ Free Exercise rights. To the extent the Court wishes to provide
further guidance, there are substantial reasons to conclude that the Board’s no-opt-out policy must satisfy
strict scrutiny and is unlikely to do so. The present record suggests that the policy is not generally applicable
because the Board has permitted ad hoc faith-based exemptions, as well as religious exemptions from noncur-
4
ricular activities and opt-outs for sex education. Moreover, the Board appears to treat requests for religionbased accommodations differently from requests made
for nonreligious reasons. Those facts refute the Board’s
argument that its policy serves a compelling interest or
is narrowly tailored.
STATEMENT
A. Legal And Factual Background
1. Like all States, Maryland generally requires parents residing in the State to send their children to public
school or to provide an alternative education. Md. Code,
Educ. § 7-301(a-1)(1) and (e); see Dep’t of Educ., Nat’l
Ctr. for Educ. Statistics, Enrollment and State Education Practices (SEP) Tbl. 1.2 (2020).1 Noncompliance is
a crime: Parents or other legal guardians of children
aged five to 16 commit a misdemeanor if they “fail[] to
see that the child attends school or receives instruction”
required by state law. Md. Code, Educ. § 7-301(e)(2).
The Maryland Department of Education oversees
public education in Maryland and has promulgated regulations addressing curricular matters. See Md. Code
Regs. 13A (2019). Those regulations require instruction
on “[f ]amily life and human sexuality,” which must
“represent all students regardless of ability, sexual
orientation, gender identity, and gender expression.”
Id. 13A.04.18.01.C(1)(c) and D(2)(a). “Direct teaching
of ” those subjects must “begin” by fifth grade. Id.
13A.04.18.01.D(2)(d). Like many States, Maryland also
requires schools to “establish policies, guidelines,
and/or procedures for student opt-out” from such instruction. Id. 13A.04.18.01.D(2)(e)(i); see Pet. Br. 7 n.3.
1
https://nces.ed.gov/programs/statereform/tab1_2-2023.asp.
5
2. Montgomery County Public Schools, Maryland’s
largest school district, serves more than 160,000 students in one of the Nation’s most religiously diverse
counties. Pet. App. 597a-598a, 601a-602a; NPR, This
county is the most religiously diverse in the U.S. (Nov.
16, 2024), https://perma.cc/766Q-WS4Y. The Montgomery County Board of Education sets the County’s specific curriculum, consistent with state regulations. Pet.
App. 598a.
For the 2022-2023 school year, the Board approved
certain storybooks for use in its English language arts
curriculum for “prekindergarten and the Head Start
program” and for “kindergarten through fifth grade.”
Pet. App. 80a; see id. at 10a-11a, 234a-240a, 254a-271a,
279a-482a, 548a-580a. The Board’s stated objective in
approving those particular books was “to further its
system-wide goals of promoting diversity, equity, and
nondiscrimination.” Id. at 78a.
The storybooks address “sexual orientation and gender identity.” Pet. App. 10a. One of the books, Pride
Puppy, depicts a family whose puppy gets lost amidst a
LGBTQ-pride parade, and invites its intended audience
of three- and four-year-old children “to look for items
such as ‘ [drag]king,’ ‘leather,’ ‘lip ring,’ ‘ [drag]queen,’
and ‘underwear.’ ” Ibid. (citation omitted); see id. at
254a-271a. Another book, Intersection Allies: We Make
Room for All, is intended for “Kindergarten through
Grade 5” and involves nine characters who “proudly describe themselves and their backgrounds.” Id. at 236a;
see id. at 309a-356a. The discussion guide accompanying the book states that “at any point in our lives, we
can choose to identify with one gender, multiple genders, or neither gender,” and asks questions such as,
“What pronouns fit you best?” Id. at 350a (emphasis omit-
6
ted). Love, Violet “chronicles a shy child’s efforts to connect with her same-sex crush on a wintry Valentine’s
Day.” Id. at 88a; see id. at 429a-447a. And Born Ready:
The Story of a Boy Named Penelope, tells the story of
a transgender child. Id. at 448a-482a. A resource
guide for Born Ready “encourages teachers to respond
to questions and comments about the main character’s
‘body parts’ by suggesting people only ‘make a guess’
about gender at birth.” Id. at 89a (citation omitted).2
The Board conveyed that teachers are “expected to
‘incorporate the [storybooks] into the curriculum in the
same way that other books are used, namely, to put
them on a shelf for students to find on their own; to recommend a book to a student who would enjoy it; to offer
the books as an option for literature circles, book clubs,
or paired reading groups; or to use them as a read aloud’
for all students in the class.” Pet. App. 11a (citation
omitted; brackets in original). The Board’s policy is
that teachers have “a choice regarding which [storybooks] to use and when to use them” in class, but cannot
“elect not to use the [books] at all.” Id. at 12a (citation
omitted); see id. at 605a.
The Board provided teachers with materials and
talking points to use in classroom discussions about the
The Board “recommend[ed]” additional books without adding
them to the curriculum. Pet. App. 80a n.1. In one storybook, What
Are Your Words?, a character explains that “[s]ometimes I change
my pronouns.” Id. at 552a; see id. at 548a-564a. Another book, Jacob’s Room to Choose, depicts two children who identify as transgender and, along with their classmates, replace “male” and “female” signs on bathroom doors with signs that say “Be[] respectful”
and “Be[] kind.” Id. at 578a; see id. at 565a-580a. Petitioners note
(Br. 11 n.10) that, after they had sought this Court’s review, the
Board removed certain books—including Pride Puppy—from the
curriculum.
2
7
books and to respond to anticipated student or parent
concerns. If, for example, a student were to say that
one of the books implicated material or views that the
student considers to be “wrong and not allowed in [the
student’s] religion,” the Board advised teachers to respond, “I understand that is what you believe, but not
everyone believes that. We don’t have to understand or
support a person’s identity to treat them with respect
and kindness.” Pet. App. 12a (citation omitted). The
materials also included “such recommendations as disagreeing with [a parent’s or caregiver’s] concerns that
elementary-age children are ‘too young to be learning
about gender and sexual[] identity.’ ” Id. at 13a (citation
omitted; brackets in original). And “[i]n response to a
caregiver’s concern that values in the books ‘go against
the values we are instilling . . . at home,’ ” the Board
recommended that teachers say, “ ‘If a child does not
agree with or understand another student’s . . . identity . . . , they do not have to change how they feel
about it.’ ” Ibid. (citation omitted).
For much of the 2022-2023 school year, schools provided parents notice and the opportunity to opt out of
the storybooks’ use “through agreements with individual principals and teachers.” Pet. App. 14a. The Board’s
“Guidelines for Respecting Religious Diversity” in effect that year stated that, “[w]hen possible, schools
should try to make reasonable and feasible adjustments
to the instructional program to accommodate requests
from students, or requests from parents/guardians on
behalf of their students, to be excused from specific
classroom discussions or activities that they believe
would impose a substantial burden on their religious beliefs.” Id. at 81a (citation omitted). Principals and teachers thus “sought to accommodate” parents’ faith-based
8
exemption requests “by telling parents that students
could be excused” when the books “were read in class.”
Id. at 606a-607a.
In March 2023, however, the Board announced that
it would no longer provide parents notice or grant optouts from instruction using the storybooks “for any reason.” Pet. App. 608a; see id. at 15a. Under the Board’s
revised policy, a school could still excuse students “from
noncurricular activities, such as classroom parties or
free-time events that involve materials or practices in
conflict with a family’s religious, and/or other, practices.”
Id. at 672a. But the policy prohibited schools from “accommodat[ing] requests for exemptions from required
curricular instruction or the use of curricular instructional materials based on religious, and/or other, objections.” Ibid. “What motivated the policy change” at the
time “is largely unknown.” Id. at 15a. In later litigation, the County’s associate superintendent stated that
the prior notice-and-opt-out policy had caused student
absenteeism, was not feasible, and risked exposing students “who believe that the books represent them or
their families” to social stigma and isolation. Id. at 15a16a, 606a-608a.
3. Petitioners are parents of various faiths whose
children attend public school in Montgomery County—
and an association of teachers and parents—who wish
to restore the previous notice-and-opt-out policy so as
to accommodate their religious beliefs. Pet. App. 16a17a & nn.3-4. They believe that “all persons should be
respected regardless of sex, gender identity, sexual orientation, or other characteristics.” Id. at 82a-83a. Petitioners also believe “they have a religious duty to train
their children in accord with their faiths on what it
means to be male and female; the institution of mar-
9
riage; human sexuality; and related themes,” and that
the storybooks contravene their religious obligations as
to their children under their respective faiths. Id. at
18a.
Petitioners “do not challenge the Board’s adoption of
the Storybooks or seek to ban their use in Montgomery
County Public Schools.” Pet. App. 17a. Rather, based
on their sincere beliefs that exposing their children to
the storybooks would violate their religious obligations
as parents, petitioners request “notice and an opportunity to opt out from use or discussions relating to”
those books during classroom lessons. Id. at 17a-18a.
B. Proceedings Below
After the Board implemented its no-opt-out policy,
petitioners filed suit in the United States District Court
for the District of Maryland against the Board and several county officials (respondents). Pet. App. 16a-18a.
Petitioners allege that the Board’s policy of refusing to
allow parents to opt out of having their children remain
in the classroom when the storybooks are read or discussed violates their own rights (and their children’s
rights) under the Free Exercise and Free Speech
Clauses of the First Amendment, the Due Process
Clause of the Fourteenth Amendment, and Maryland
law. Id. at 156a-209a. Petitioners seek declaratory and
injunctive relief requiring an opportunity to opt their
children out of classroom instruction using the storybooks. Id. at 205a-206a. Petitioners also request damages. Id. at 206a.
1. As relevant here, the district court denied petitioners’ motion for a preliminary injunction. Pet. App.
10
76a-155a.3 The court concluded that petitioners are unlikely to show a cognizable burden on their free exercise
of religion because they did not establish that the “policy likely will result in the indoctrination” of their children, id. at 131a, or that their children are “likely to be
coerced into violating” their religious beliefs, id. at
135a.
The district court further opined that the Board’s noopt-out policy does not substantially interfere with petitioners’ “sacred obligations” as parents “to raise their
children in their faiths” because the policy “does not
prevent the parents from exercising their religious obligations or coerce them into forgoing their religious beliefs.” Pet. App. 136a-137a. “No government action,”
the court added, “prevents the parents from freely discussing the topics raised in the storybooks with their
children or teaching their children as they wish.” Id. at
136a-137a. The court also rejected petitioners’ argument that they face unconstitutional coercion “to choose
between the benefits of a public education and exercising their religious rights.” Id. at 139a. In the court’s
view, “[t]he no-opt-out policy does not pressure the parents to refrain from teaching their faiths, to engage in
conduct that would violate their religious beliefs, or to
change their religious beliefs.” Ibid.
2. The court of appeals affirmed in a 2-1 decision.
Pet. App. 1a-75a.
a. The panel majority agreed with the district court
that petitioners are unlikely to suffer a cognizable burPetitioners did not seek preliminary relief on their state-law
claims. Petitioners asserted in the courts below a “so-called ‘hybridrights’ claim” based on their Due Process and Free Exercise rights,
Pet. App. 20a & n.7, but did not renew that claim in this Court, Pet.
i; see Pet. App. 50a-51a, 143a-152a.
3
11
den. Pet. App. 34a-50a. The majority reasoned that the
Free Exercise Clause “requires some sort of direct or
indirect pressure to abandon religious beliefs or affirmatively act contrary to those beliefs,” id. at 35a, and
found “no evidence at present that the Board’s decision
not to permit opt-outs compels [petitioners] or their
children to change their religious beliefs or conduct, either at school or elsewhere,” id at 34a.
The panel majority also determined that petitioners
had not shown that being required to have their children remain in class while the storybooks are read or
discussed denies them access to a public benefit because
of their religious exercise. Pet. App. 46a-48a. The majority concluded that petitioners are not pressured to
“disavow their religious views before they c[ould] send
their children to public school,” id. at 46a, and that “government coercion does not exist merely because an individual may incur increased costs as a consequence of
deciding to exercise their religious faith in a particular
way,” id. at 47a.
b. Judge Quattlebaum dissented. Pet. App. 52a-75a.
He emphasized that “interfering or burdening the exercise of religion is not limited to direct coercion,” id. at
59a, such as “requir[ing] the parents or their children
to change their religious views,” id. at 63a. In his view,
“the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a
benefit or privilege,” such as public schooling. Id. at 60a
(quoting Sherbert v. Verner, 374 U.S. 398, 404 (1963)).
And because petitioners’ faiths “compel[] that they
teach their children about sex, human sexuality, gender
and family life,” and “dictate that they shield their children from teachings that contradict and undermine
their religious views on those topics,” the dissent would
12
have found that the “decision to deny religious opt-outs
prevents the parents from exercising these aspects of
their faith if they want their children to obtain a public
education.” Id. at 61a, 63a.
Judge Quattlebaum also would have concluded that
the no-opt-out policy triggers strict scrutiny because
the Board has “discretion” whether “to grant religious
opt-out requests,” such that the policy is not neutral or
generally applicable. Pet. App. 68a-71a. The dissent
would have further held that the policy fails that heightened standard, id. at 71a-73a, and that the remaining
preliminary-injunction factors support granting interim
relief, id. at 73a-75a.
SUMMARY OF ARGUMENT
The Free Exercise Clause provides that “Congress
shall make no law * * * prohibiting the free exercise”
of religion. U.S. Const. Amend. I. The question presented is whether the Board’s no-opt-out policy imposes
any cognizable burden on a parent’s Free Exercise
rights. Pet. i. The answer is yes. Petitioners can obtain
the benefit of a free public education for their children
only at the price of their religious obligations as parents. That choice burdens parents’ religious exercise.
A. This case involves obvious protected religious
conduct. The Free Exercise Clause protects not only
“the right to harbor religious beliefs inwardly and secretly,” but also “the ability of those who hold religious
beliefs of all kinds to live out their faiths in daily life
through ‘the performance of (or abstention from) physical acts.’ ” Kennedy v. Bremerton Sch. Dist., 597 U.S.
507, 524 (2022) (citation omitted).
Petitioners sincerely believe that they have religious
obligations to direct whether, when, and how their
young children should be taught about gender and sex-
13
uality. Across their faiths, petitioners share the belief
that they “have a religious duty to train their children
in accord with their faiths on what it means to be male
and female; the institution of marriage; human sexuality; and related themes.” Pet. App. 18a. Fulfilling that
religious duty plainly qualifies as part of the “free exercise of religion.”
B. This case also involves a clear burden on religious conduct. Government “prohibits” the free exercise
of religion—and imposes a cognizable burden—through
many forms of interference with those rights. Proscribing religious observance or attaching criminal or civil
penalties to religious practices are obvious examples.
So too, government action burdens religious exercise
when it “put[s]” an adherent “to the choice of curtailing”
his exercise or behaving “inconsistent[ly] with [his] beliefs,” Fulton v. City of Philadelphia, 593 U.S. 522, 532
(2021), or “exclude[s] religious persons from the enjoyment of public benefits on the basis of their anticipated
religious use of the benefits” or “religious status,” Carson v. Makin, 596 U.S. 767, 787, 789 (2022).
The Board’s no-opt-out policy burdens petitioners’
religious practice by forcing them to send their children
to classrooms that will instruct their children using the
storybooks’ materials involving gender and sexuality.
Petitioners believe that sending their children to school
in those circumstances violates their religious obligations. To respect their faiths, petitioners must forgo
public education entirely and comply with Maryland’s
compulsory-education laws some other way, for instance by shouldering the expenses of private schooling.
By “exclud[ing] religious observers from otherwise
available public benefits” in that manner, the policy un-
14
ambiguously burdens petitioners’ religious exercise.
Carson, 596 U.S. at 778; see Fulton, 593 U.S. at 532.
C. The Fourth Circuit held that burdens on religious exercise arise only when there is “coerc[ion]
* * * to believe or act contrary to [parents] religious
views,” and found no such burden here. Pet. App. 31a.
Rather, the court reasoned, children were “simply hearing about other views,” which in the court’s view “does
not necessarily exert pressure to believe or act differently than one’s religious faith requires.” Id. at 35a-36a.
That reasoning flouts this Court’s precedent and unnaturally cabins Free Exercise rights. It disregards petitioners’ sincerely held beliefs that sending their children to participate in compelled classroom instruction
on issues of gender and sexuality would contravene petitioners’ own religious obligations. That approach also
relies on an unworkable distinction between “exposure”
and “coercion” that would invite judges to assess how
particular children might react to particular instruction
—thereby second-guessing the lines drawn by petitioners’ faiths. The Fourth Circuit’s and respondents’ remaining contentions likewise lack merit.
D. The Court could simply vacate and remand the
case for further proceedings after holding that the
Board’s policy burdens petitioners’ religious exercise.
The next step of the inquiry involves evaluating whether,
under the applicable level of scrutiny, that policy is constitutional notwithstanding its burdens on religion. To
the extent the Court wishes to offer guidance on that
score, there are strong reasons to conclude that strict
scrutiny should apply.
15
ARGUMENT
SCHOOLS BURDEN PARENTS’ FREE EXERCISE RIGHTS
BY DISALLOWING OPT-OUTS FOR COMPELLED INSTRUCTION THAT VIOLATES PARENTS’ FAITHS
The Board’s no-opt-out policy unambiguously burdens petitioners’ Free Exercise rights. Petitioners’ religions require them to direct whether, when, and how
their children are taught about gender and sexuality
and to avoid subjecting their children to teachings that
contravene their faiths. The Board’s policy instead requires teachers to use storybooks addressing those subjects and bars parents from opting their children out of
such instruction. Thus, if petitioners send their children to school, they act in dereliction of their religious
duties. And if petitioners refrain and respect their
faiths, they must forgo a free public education, since
they cannot otherwise ensure that their children will
not receive such instruction. Under this Court’s precedents, that is a quintessential burden under the Free
Exercise Clause.
A. Parents Engage In Protected Religious Conduct By Following Religious Obligations As To Child-Rearing
1. The Free Exercise Clause of the First Amendment, which applies to the States under the Fourteenth
Amendment, provides that “Congress shall make no law
* * * prohibiting the free exercise” of religion. The concept of “free exercise” of religion extends well beyond
acts of public worship and encompasses the right to subscribe to articles of faith free of governmental interference. That conclusion flows from how the public that
ratified the First Amendment in 1791 would have understood its text. The word “free” meant “[u]ncompelled”
or “unrestrained.” 1 Samuel Johnson, A Dictionary of
16
the English Language (1755); see Fulton v. City of Philadelphia, 593 U.S. 522, 566 (2021) (Alito, J., concurring
in the judgment). The term “exercise,” in turn, included
both a “practice” or “outward performance,” or an “act
of divine worship whether public[] or private.” Ibid.
(brackets omitted).
Consistent with that understanding, this Court has
observed that the “free exercise” of religion “embraces
two concepts”: the “freedom to believe” and the “freedom to act.” Cantwell v. Connecticut, 310 U.S. 296, 303
(1940). The Free Exercise Clause protects not only “the
right to harbor religious beliefs inwardly and secretly,”
but also public or “ ‘physical acts.’ ” Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 524 (2022) (citation omitted).
This Court has recognized many forms of religious
exercise as constitutionally protected. “[U]nquestionably,” the Free Exercise Clause covers outward acts, such
as “preach[ing]” or “proselyt[izing],” McDaniel v. Paty,
435 U.S. 618, 626 (1978), or “giv[ing] a talk before [a] congregation” of believers, Fowler v. Rhode Island, 345 U.S.
67, 68 (1953). Publicly kneeling and “giv[ing] ‘thanks
through prayer’ ” also counts. Kennedy, 597 U.S. at 525526 (citation omitted); see id. at 512-513. So does engaging in “the practice of animal sacrifice” during “worship.” Church of the Lukumi Babalu Aye, Inc. v. City
of Hialeah, 508 U.S. 520, 531 (1993).
By the same token, the “abstention from[] physical
acts” can constitute religious exercise. Kennedy, 597
U.S. at 524 (citation omitted). For Seventh-day Adventists, refraining from Saturday work is “the practice of
* * * religion” because adherents are observing “the
Sabbath Day of [their] faith.” Sherbert v. Verner, 374
U.S. 398, 399, 403-404 (1963). Likewise, refusing to par-
17
ticipate in armament production qualifies as religious
exercise for a Jehovah’s Witness. Thomas v. Review
Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707, 709, 720
(1981).
Similarly, States at the Founding recognized that refraining from military service could be a form of religious observance. Fulton, 593 U.S. at 583-584 (Alito, J.,
concurring in the judgment). “[A]lmost all States” by
the Founding recognized that refusing to swear an oath
could also constitute a religious practice. Id. at 582.
And States at the Founding considered refusing to “remov[e] [one’s] hat[] in court” to be a form of religious exercise for Quakers, whom States thus “exempted * * *
from the requirement.” Michael W. McConnell, The Origins and Historical Understanding of Free Exercise
of Religion, 103 Harv. L. Rev. 1409, 1471-1472 (1990).
Particularly relevant here, this Court has emphasized
that parents may engage in religious exercise through
how they control their children’s upbringings. Many
faiths hold beliefs as to how parents should raise children in that religion. See, e.g., Wisconsin v. Yoder, 406
U.S. 205, 213-214 (1972). This Court has concluded that
parents may engage in religious practice when “direct[ing] ‘the religious upbringing’ of their children.”
Espinoza v. Montana Dep’t of Revenue, 591 U.S. 464,
486 (2020) (citation omitted). And “sending [one’s] children to religious schools” may itself be an exercise of
religion. Ibid.; see Carson v. Makin, 596 U.S. 767, 779
(2022).
Likewise, shielding children from certain lessons—
or withholding children from public school entirely—
can be an exercise of one’s faith. This Court has held
that adherents of the Older Order Amish religion engaged in the “exercise of religious belief ” by declining
18
to send their children to secondary school. Yoder, 406
U.S. at 214. The Court viewed Amish parents’ acts of
opting children out of secondary schooling as “legitimate claims to the free exercise of religion,” id. at 215,
because the parents’ decisions were “firmly grounded
in” the sincere religious belief that, “by sending their children to high school, they would * * * endanger their
own salvation and that of their children,” id. at 209-210.
Determining what acts qualify as a religious “practice” can be “a difficult and delicate task,” but this Court’s
precedents yield some common threads. See Thomas,
450 U.S. at 714. Courts do not decide what qualifies as
religious exercise based “upon a judicial perception of
the particular belief or practice in question,” because
“religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit
First Amendment protection.” Ibid. The religious belief need not be “central” to a particular faith. Lyng v.
Northwest Indian Cemetery Protective Ass’n, 485 U.S.
439, 457 (1988) (citation omitted). Nor must the religious
exercise involve a religious duty; that is sufficient, but
not necessary. Espinoza, 591 U.S. at 486; Carson, 596
U.S. 776. The Free Exercise Clause can also extend to
non-obligatory conduct. Sherif Girgis, Defining “Substantial Burdens” on Religion and Other Liberties, 108
Va. L. Rev. 1759, 1773, 1798 (2022); cf. 42 U.S.C. 2000cc5(7)(A) (defining “ ‘religious exercise’ ” to include “any
exercise of religion, whether or not compelled by, or
central to, a system of religious belief ”).
2. Given that history and precedent, petitioners
clearly engage in religious exercise by fulfilling their religious obligations as parents. Petitioners believe that
their faiths impose a “religious duty to train their children in accord with their faiths on what it means to be
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male and female; the institution of marriage; human
sexuality; and related themes.” Pet. App. 18a. Those
solemn obligations, according to petitioners, require
parents to determine whether, when, and how to teach
their children about such topics. Ibid.
Specifically, petitioners Tamer Mahmoud and Enas
Barakat believe that their “religious duty” as Muslims
is “to raise [their] children in accordance with [their]
faith,” which includes the parents’ obligation to avoid
“exposing [their] young, impressionable, elementaryaged son to activities and curriculum on sex, sexuality,
and gender that undermine Islamic teaching.” Pet. App.
529a-530a, 532a. Petitioners Jeff and Svitlana Roman
similarly believe that their faith instructs them that
“[p]arents should politely but firmly exclude any attempts” to “impos[e] premature sex information” on a
child, because “such attempts compromise the spiritual,
moral and emotional development of growing persons
who have a right to their innocence.” Id. at 541a (citation omitted). And petitioners Melissa Persak and
Chris Persak view it as their “God-given responsibility
to raise [their] children in accordance with the tenets
of ” their Catholic faith. Id. at 543a. Those are heartland examples of constitutionally protected religious
conduct.
B. Public Schools Burden Religious Exercise By Requiring Parents To Choose Between Religious Obligations
And Forgoing Public Education
1. In many free-exercise cases, “[t]he crucial word
in the constitutional text is ‘prohibit.’ ” Lyng, 485 U.S.
at 451 (citation omitted). The term “ ‘prohibit’ ” had “essentially the same meaning in 1791 as [it does] today,”
i.e., “to forbid” or “to hinder.” Fulton, 593 U.S. at 566
(Alito, J., concurring in the judgment) (quoting 2 John-
20
son). This Court’s cases have asked whether governmental action burdens the free exercise of religion before determining what standard of scrutiny applies and
whether the governmental action can survive.
This Court has recognized various ways in which
government may burden religion. Obviously, “outright
prohibitions” on religion constitute burdens. Carson,
596 U.S. at 778 (citation omitted). And criminalizing or
penalizing religious beliefs or practices are burdens,
whether they involve criminal sanctions on “religious
animal sacrifice,” Lukumi, 508 U.S. at 527, or discipline
against a football coach for praying immediately after
games, Kennedy, 597 U.S. at 525.4
But the Free Exercise Clause guards against other
forms of “coercion or penalties” on religious exercise as
well. Carson, 596 U.S. at 778 (citation omitted). Most
relevant here, “a person may not be compelled to choose
between the exercise of a First Amendment right and
participation in an otherwise available public program.”
Thomas, 450 U.S. at 716. This Court has reiterated that
the government imposes a constitutionally significant
burden when it “forces [someone] to choose between folThis Court applies similar reasoning in analyzing the Religious
Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. 2000cc
et seq., and the Religious Freedom Restoration Act of 1993, 42 U.S.C.
2000bb et seq. A prison’s grooming policy “substantially burden[ed]”
a prisoner’s religious exercise because the policy “put[]” him “to th[e]
choice” of “shav[ing] his beard” in violation of his sincere religious
beliefs, or “fac[ing] serious disciplinary action.” Holt v. Hobbs, 574
U.S. 352, 361-362 (2015). And a statute “clearly impose[d] a substantial burden” to the extent it required a closely held corporation
either to fund certain “contraceptive methods [that] violate[d]” the
owners’ religious beliefs or to face penalties worth “as much as $475
million per year.” Burwell v. Hobby Lobby Stores, Inc., 573 U.S.
682, 726 (2014).
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lowing the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work” or other
benefits. Sherbert, 374 U.S. at 404; see Carson, 596 U.S.
at 780 (“disqualif [ying]” prospective recipients from a
“generally available benefit ‘solely because of their religious character’ * * * ‘effectively penalizes the free
exercise’ of religion”) (quoting Trinity Lutheran Church
of Columbia, Inc. v. Comer, 582 U.S. 449, 462 (2017));
Fulton, 593 U.S. at 532 (similar); Espinoza, 591 U.S. at
475 (similar).
This Court has accordingly found cognizable burdens across contexts where the government effectively
required individuals to disregard aspects of their faiths
in order to be eligible for public benefits. South Carolina burdened religious exercise by putting Adell Sherbert to the choice of working on Saturdays—a Sabbath
day for Seventh-day Adventists—or forgoing eligibility
for unemployment benefits. Sherbert, 374 U.S. at 399,
402. That created a “clear * * * burden” by “forc[ing]
her to choose between following the precepts of her religion and forfeiting benefits” and “abandoning one of
the precepts of her religion in order to accept work.” Id.
at 403-404 (citation omitted).
Indiana likewise burdened Eddie Thomas’s religious
exercise by putting him to the choice of working in an
armament-production job—something he believed his
faith as a Jehovah’s Witness prohibited—or losing unemployment benefits on the ground that his religious
objections were insufficiently concrete. Thomas, 450
U.S. at 714-718. And this Court found it “plain” that
Philadelphia burdened a Catholic foster-care agency’s
religious exercise “by putting it to the choice of curtailing its mission” of serving children in need “or approv-
22
ing relationships inconsistent with its beliefs” by certifying same-sex couples. Fulton, 593 U.S. at 532.5
This Court has found similar burdens on religion when
parents or schools are forced to choose between hewing
to religious beliefs or following school-related rules.
Wisconsin unconstitutionally burdened Amish parents’
Free Exercise rights by putting them to the choice of
complying with state compulsory-education laws, or
complying with “basic religious tenets and practice of
the Amish faith” that teach that high-school age children should be secluded from “worldly influences in
terms of attitudes, goals, and values contrary to [the
parents’] beliefs.” Yoder, 406 U.S. 217-218; see id. at
230-231, 234-235. This Court held that Amish parents
had a constitutional right to opt out of compulsory education based on their sincere beliefs that “the values and
programs of the modern secondary school are in sharp
This Court’s decision in Bowen v. Roy, 476 U.S. 693 (1986), comports with that understanding. There, two applicants objected that
a “condition of receiving” government benefits—that they “obtain[]
a Social Security number for their” child—violated their sincere religious beliefs that a unique identifier would “ ‘rob the spirit’ of
[their] daughter and prevent her from attaining greater spiritual
power.” Id. at 695-696 (plurality opinion). The Court rejected the
applicants’ contention that the Free Exercise Clause required the
government to “refrain[] from using a number to identify their
daughter,” because the Clause does not “require the Government to
conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens.” Id. at 699-700; see, e.g., id. at
724 (O’Connor, J., concurring in part and dissenting in part). But a
majority of this Court recognized that forcing the parents to provide
the government a social security number for their child to receive
certain benefits—in violation of the parents’ beliefs—could burden
religion. Id. at 714-716 (Blackmun, J., concurring in part); id. at 727
(O’Connor, J., concurring in part and dissenting in part); id. at 733
(White, J., dissenting).
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conflict with the fundamental mode of life mandated by
the Amish religion.” Id. at 217. Yoder thus stands for
the proposition that parents themselves can engage in
religious exercise by shielding their children, and that a
school policy that thwarts that exercise may constitute
a burden. Ibid.6
Likewise, this Court held, Missouri burdened a religious school’s Free Exercise rights by requiring the
school to “disavow its religious character” to enable it
to “participate in a government benefit program”—
there, grants for playground resurfacing. Trinity Lutheran, 582 U.S. at 463. Further, this Court held, Montana burdened the free exercise of religious schools and
parents by putting the schools to the choice of retaining
their religious character—and losing eligibility for generally available scholarship funding—or “divorc[ing]”
from “any religious control or affiliation” to obtain those
funds. Espinoza, 591 U.S. at 478. This Court emphasized that this sort of “penalty on the free exercise of
religion * * * triggers the most exacting scrutiny.”
Id. at 475 (quoting Trinity Lutheran, 582 U.S. at 462).
Most recently, this Court held that Maine burdened
religious exercise by disqualifying private religious
schools from eligibility for public funds solely because
they provide religious instruction. Carson, 596 U.S. at
778-780. Those schools faced the choice of continuing
their religious missions of “[e]ducating young people in
This Court has also recognized that the liberty interest protected by the Due Process Clause of the Fourteenth Amendment
includes parents’ right “to control the education of ” their children.
Meyer v. Nebraska, 262 U.S. 390, 401 (1923); see Pierce v. Society
of Sisters, 268 U.S. 510, 534-535 (1925). The Court need not address
any such liberty interest here, since the question presented focuses
on petitioners’ own First Amendment rights to free exercise. Pet. i.
6
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their faith”—and forgoing generally available funding
—or abandoning the kinds of religious instruction that
rendered them ineligible. Id. at 787 (citation omitted).
Again, this Court considered that choice as plainly unconstitutional discrimination. Id. at 787-788.
Taken together, this Court’s cases establish that
cognizable burdens include “direct” prohibitions on religious practice as well as “indirect” measures that “impede the observance” of one’s faith. Sherbert, 374 U.S.
at 405. And a cognizable burden need not force someone
to violate their beliefs; “a fine imposed against” a Seventh-day Adventist “for her Saturday worship” would
also place a “burden upon the free exercise of religion.”
Id. at 404. But this case does not require the Court to
fully define the contours of when burdens on religion
become constitutionally cognizable. See Girgis, supra,
at 1769-1771 (noting additional line-drawing questions).
2. This Court’s precedents make this a simple case.
The Board burdened petitioners’ religious exercise because petitioners are put to the choice of violating their
sincere religious beliefs—which forbid them to expose
their children to outside instruction regarding gender
and sexuality—or forgoing the benefit of public schooling.
Maryland requires petitioners’ children to attend
school; parents face potential criminal penalties for noncompliance. Md. Code, Educ. § 7-301(e)(2). To attend
Montgomery County public schools, parents must send
their children for compulsory classroom instruction on
matters of gender and sexuality using the Boardapproved storybooks. Under the Board’s policy, parents are not notified of when the instruction will happen; even if they were, parents could not validly absent
their children from school based on their religious ob-
25
jections. Rather, the Board forbids schools to “accommodate requests for exemptions from required curricular instruction or the use of curricular instructional materials based on religious, and/or other, objections.”
Pet. App. 672a.
Petitioners cannot abide by that compulsory-attendance regime without violating their sincere religious beliefs. Petitioners Mahmoud and Barakat have averred
that, “[a]s Muslims,” they sincerely believe that they
have “a sacred duty to teach [their] children [their] faith,
including religiously grounded sexual ethics.” Pet. App.
529a-530a. They further explain that their faith includes an obligation to avoid “exposing [their] young,
impressionable, elementary-age son to activities and
curriculum on sex, sexuality, and gender that undermine Islamic teaching.” Id. at 529a-530a, 532a. Accordingly, they believe that forced classroom instruction addressing sexuality and gender identity using the storybooks would conflict with their “religious duty to raise
[their] children in accordance with [their] faith.” Id. at
532a. Petitioners Jeff and Svitlana Roman—who are
Roman Catholic and Ukrainian Orthodox, respectively
—attested to their “sacred obligation” and “duty to provide [their] son an ‘education in the virtues’ ” of their
faiths. Id. at 538a (citation omitted). They believe that
permitting their son to participate in lessons “about
sexuality or gender identity that conflict with [their] religious beliefs” would “significantly interfere[] with”
their religious duties “to form his religious faith” in accordance with Catholic and Orthodox tenets. Id. at
541a. And petitioners Melissa and Chris Persak, who
are “Catholics by faith,” believe that “exposing [their]
elementary-aged daughters to viewpoints on sex, sexuality, and gender that contradict Catholic teaching”
26
would “conflict[] with [their] religious duty” as parents.
Id. at 542a, 544a.
The Board’s policy thus burdens religion just as the
State in Yoder burdened Amish parents’ religious exercise. Both sets of parents were required to send their
children to school in contravention of “the basic religious tenets and practice of the[ir] faith[s].” Yoder, 406
U.S. at 217-218. And the Board’s “condition[]” on the
“receipt of an important benefit,” Thomas, 450 U.S. at
717-718, “plain[ly]” burdens Free Exercise rights, Fulton, 593 U.S. at 532. Petitioners (Br. 31-32) identify further case-specific factors that they contend increases
the burden here, such as that their children are young
and impressionable, that parents have traditionally enjoyed deference on “instruction on gender and sexuality,” and that sex education was not a standard topic of
instruction before the 1970s. In the United States’ view,
those extra factors highlight why this case is particularly straightforward, but those factors need not be present to establish a burden on religion. The touchstones
of the inquiry should be how a particular faith defines
its tenets, and what effect government policy has on exercising that faith.
C. The Fourth Circuit’s And Respondents’ Contrary Approach Lacks Merit
The Fourth Circuit held that petitioners failed to
show any burden on their religious exercise because, in
the court’s view, petitioners’ children were “simply hearing about other views.” Pet. App. 35a. That rationale—
along with the Fourth Circuit’s and respondents’ further reasoning—is incorrect.
1. The Fourth Circuit opined that burdens on religious exercise could arise in this case only if petitioners
or their children are “coerce[d] * * * to believe or act
27
contrary to their religious views.” Pet. App. 31a. The
court concluded that petitioners failed to satisfy that
standard because “simply hearing about other views
does not necessarily exert pressure to believe or act differently than one’s religious faith requires.” Id. at 35a36a.
That reasoning overlooks the relevant religious exercise here: parents’ sincere religious beliefs that they
must protect their children from the Board-mandated
instruction in Montgomery County schools. The Board’s
policy requires parents to “shed their religious beliefs,”
Br. in Opp. 24, about how to raise their children within
their faiths: They cannot subject their children to the
schools’ instruction regarding the storybooks without
violating those beliefs. See pp. 24-26, supra. As
Judge Quattlebaum observed, “the [B]oard’s own internal documents * * * instruct teachers on how to discuss” certain matters that petitioners believe they have
a religious duty to shield from their children. Pet. App.
62a (Quattlebaum, J., dissenting) (citing id. at 629a630a); see id. at 12a-13a. Regardless of whether the
Board’s policy burdens petitioner’s children, petitioners have established a burden on their own religious exercise.
The Fourth Circuit distinguished Yoder as involving
more serious burdens on religious exercise because the
parents there believed that compulsory secondary schooling threatened the survival of the Amish faith. Pet. App.
36a-38a. By contrast, the court reasoned that “mere exposure to the Storybooks” would not “ ‘affirmatively
compel[]’ ” petitioners or their children to act contrary
to “their religious views.” Id. at 39a (citation omitted);
see Br. in Opp. 18-23. That reasoning misunderstands
Yoder, which made clear that the Court’s holding turned
28
on “the parents[’] ” “right of free exercise, not that of
their children.” 406 U.S. at 230-231 (emphasis added).
Yoder also based its holding on what parents sincerely
believed their faith required, not whether in the judiciary’s view the Amish faith could survive if Amish children attended secondary school. Id. at 209, 217-218.
More broadly, respondents’ and the Fourth Circuit’s
distinction between “mere exposure” and “coercion,”
Pet. App. 39a-40a, is not administrable. Under that test,
it is anyone’s guess whether reading a storybook aloud
would cross the line if it happened just once, or just once
a week, or daily. Likewise, the test prompts questions
about how courts should weigh students’ ages and relative impressionability. Are preschoolers always more
impressionable than teenagers? Does it depend on the
particular material? The court below faulted petitioners for failing to “connect[] the requisite dots” between
a child’s “age[] or mental capacity” and “exposure” to
classroom material, id. at 41a, but plaintiffs do not require social-science experts to make out claims for other
constitutional rights.
The exposure-versus-coercion test would also invite
the kind of entanglement the Religion Clauses forbid by
asking judges to assess how objectionable certain material would be under a plaintiff ’s religion. “It is not
within the judicial ken to question the centrality of particular beliefs or practices to a faith.” Hernandez v.
Commissioner, 490 U.S. 680, 699 (1989); see New York
v. Cathedral Acad., 434 U.S. 125, 133 (1977) (“The prospect of church and state litigating in court about what
does or does not have religious meaning touches the
very core of the constitutional guarantee against religious establishment.”). If a public school required
teachers to conduct a read-along from a storybook con-
29
taining images of the Prophet Mohammad, a parent who
adheres to tenets of Islam could surely claim a cognizable burden from “exposure” of their child to religiously
forbidden depictions. Respondents offer no sound basis
to distinguish that case from this one.
2. The Fourth Circuit also reasoned that petitioners’
claims “fall outside the scope of the Free Exercise Clause”
because the Clause does not “ ‘require the Government
to conduct its own internal affairs’ * * * ‘in ways that
comport with the religious beliefs of particular citizens.’ ” Pet. App. 40a (quoting Bowen v. Roy, 476 U.S.
693, 699 (1986) (plurality opinion)).
But this case does not implicate “internal” government affairs in any relevant sense. Unlike internal
processes—such as the federal government’s use of
social-security numbers already in its possession “to
identify” citizens, Roy, 476 U.S. at 700 (plurality opinion)
—the Board’s no-opt-out policy operates externally by
forcing private parties to participate in classroom instruction. This case thus resembles the scenario that a
majority of the Court in Roy suggested could constitute
a burden, i.e., requiring parents to provide the government a social security number for their child to receive
certain benefits—in violation of the parents’ sincerely
held beliefs. See p. 22 n.5, supra. Put differently, petitioners “seek[] only an accommodation that will allow
[them] to continue” receiving a public benefit “in a manner consistent with [their] religious beliefs.” Fulton,
593 U.S. at 542.
Equally mistaken is respondents’ view that any remedy in this case would improperly “intrude on the government’s ‘internal affairs’ ” by “[t]elling public school
teachers what to teach and not to teach[] * * * to a
particular student.” Br. in Opp. 26 (citation omitted).
30
For one thing, the question presented in this case addresses only the existence of a burden, not any appropriate remedy. Pet. i. For another, almost any remedy
in the free-exercise context could be described as “telling” a state actor not to penalize religious exercise. One
could easily recast this Court’s First Amendment precedents as “telling” a government what contracts it may
cancel, Fulton, 593 U.S. at 532; what funds it may disburse, Carson, 596 U.S. at 780; Espinoza, 591 U.S. at
480; Trinity Lutheran, 582 U.S. at 463; or which students to excuse from school, Yoder, 406 U.S. at 217. The
relevant point is that respondents have engaged in
“compulsion” by forbidding petitioners to opt their children out of class during required lessons. Br. in Opp.
26 (citation omitted).
3. The Fourth Circuit further suggested that petitioners suffered no burden because they could opt to
pay for private school. See Pet. App. 46a-48a. But that
proves, rather than refutes, the existence of a burden.
Petitioners’ children can attend free public schools only
if petitioners are willing to violate their religious beliefs.
Requiring petitioners to pay for private schools to respect their religious beliefs is itself a burden.
The Fourth Circuit dismissed this Court’s decisions
in Carson, Fulton, Espinoza, and Trinity Lutheran as
inapplicable. The court of appeals reasoned that “the
government actors in each of those cases overtly barred
religious adherents from eligibility to participate in the
benefit because of the plaintiff ’s religious beliefs or unless the plaintiff agreed to act in contradiction to his religious beliefs,” whereas the public schools in this case
“are open to” petitioners without regard to “religious
affiliation or beliefs.” Pet. App. 45a-46a; see Br. in Opp.
24. But this Court has repeatedly rejected the notion
31
that overt exclusions from eligibility are the only ways
in which government might burden the free exercise of
religion. Rather, such burdens may stem from “the denial of or placing of conditions upon a benefit or privilege.” Carson, 596 U.S. at 778 (emphasis added) (quoting Sherbert, 374 U.S. at 404). That is precisely what
the Board’s policy did here: parents can send their children to public school only at the price of violating their
own religious beliefs. See pp. 24-26, supra.
4. Finally, respondents suggest (Br. in Opp. 7, 15
n.3) that providing petitioners notice and an opportunity to opt their children out of certain classroom instruction would be infeasible. Of course, administrators
entrusted with operating public schools “have a difficult
job, and a vitally important one.” Morse v. Frederick,
551 U.S. 393, 409 (2007). But respondents’ objection concerns whether their policy is appropriately tailored to a
sufficiently important government interest. It has nothing to do with whether petitioners have suffered a cognizable First Amendment burden in the first place.
Regardless, respondents appear to overstate the difficulty in permitting opt-outs in this elementary-school context. State law already requires respondents to “establish policies, guidelines, and/or procedures for student
opt-out regarding instruction related to family life and
human sexuality.” Md. Code Regs. 13A.04.18.01.D(2)(e)(i)
(2019). And petitioners ask (Br. 14) only to “restore” the
Board’s pre-existing opt-out policy, which for months
had allowed parents to exempt their children only from
“specific classroom discussions or activities,” such as
formal instruction or a class-wide read-along, Pet. App.
606a.
32
D. Vacatur And Remand For Further Proceedings Is Warranted
This Court should hold that the Fourth Circuit erred
in dismissing any cognizable free-exercise burden. Correcting that error would resolve the question presented
and the division of authority that warranted this Court’s
review. See Pet. i, 19-23.
If the Court wishes to offer further guidance, there
are substantial reasons to conclude that the Board’s noopt-out policy must satisfy strict scrutiny and is unlikely to do so. See Pet. App. 66a-73a (Quattlebaum, J.,
dissenting); Pet. Br. 47-52. Strict scrutiny applies to
government policies that are either not neutral towards
religion or not generally applicable. Kennedy, 597 U.S.
at 525. And strict scrutiny is indeed strict; “so long as
the government can achieve its interests in a manner
that does not burden religion, it must do so.” Fulton,
593 U.S. at 541.
The preliminary-injunction record strongly suggests
that the Board’s no-opt-out policy is not generally applicable. A policy is not generally applicable if it “ ‘invites’ the government to consider the particular reasons
for a person’s conduct by providing a ‘mechanism for individualized exemptions,’ ” Fulton, 593 U.S. at 533-534
(brackets and citation omitted), or “treat[s] any comparable secular activity more favorably than religious exercise,” Tandon v. Newsom, 593 U.S. 61, 62 (2021) (per
curiam); see, e.g., Lukumi, 508 U.S. at 537; Sherbert,
374 U.S. at 401 n.4.
Here, for at least part of a school year, respondents
undisputedly granted ad hoc faith-based exemptions.
Pet. App. 14a-15a. To this day, respondents permit religious exemptions from “noncurricular activities.” Id.
at 15a n.2 (citation omitted). Respondents also allow
33
students to “opt[] out of the * * * sex education unit
of their health courses, which are taught in both elementary and high schools.” Pet. 14-15 (citation omitted); see Pet. App. 80a. Indeed, the only exemptions
that appear to be forbidden are “religious opt-outs for
the [storybooks] for K-5 children.” Pet. App. 70a (Quattlebaum, J., dissenting). That suggests that the Board
has treated “secular activity more favorably than religious exercise.” Tandon, 593 U.S. at 62; see Fulton, 593
U.S. at 533-534.
Further, the way the Board has apparently prohibited opt-outs only for religious grounds raises “serious
doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring [religious practices].” Brown v. Entertainment Merchs.
Ass’n, 564 U.S. 786, 802 (2011); see Pet. App. 73a (Quattlebaum, J., dissenting). And a policy that restricts religious exemptions but not comparable secular ones is,
by definition, not narrowly tailored, which would alone
generally “establish the invalidity of [a policy]” under
strict scrutiny. Lukumi, 508 U.S. at 546; see Tandon,
593 U.S. at 63-64. The Court need not address that issue now, but further guidance could ensure that “[t]he
door of the Free Exercise Clause stands tightly closed
against any governmental regulation of religious beliefs
as such.” Sherbert, 374 U.S. at 402 (emphasis omitted).
34
CONCLUSION
For the foregoing reasons, the judgment of the court
of appeals should be vacated, and the case remanded for
further proceedings.
Respectfully submitted.
SARAH M. HARRIS
Acting Solicitor General
YAAKOV ROTH
Acting Assistant Attorney
General
NICHOLAS S. CROWN
Assistant to the Solicitor
General
MICHAEL S. RAAB
LOWELL V. STURGILL JR.
Attorneys
MARCH 2025
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.