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

Supreme Court briefMar 10, 2025

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No. 24-297

In the Supreme Court of the United States

TAMER MAHMOUD, ET. AL.

Petitioners,

THOMAS W. TAYLOR, ET AL.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

________________

BRIEF AMICI CURIAE OF CHRISTIAN LEGAL SOCIETY,

AGUDATH ISRAEL OF AMERICA, FIRST LIBERTY

INSTITUTE, FOCUS ON THE FAMILY, THE NATIONAL

ASSOCIATION OF EVANGELICALS, AND THE ISLAM

AND RELIGIOUS FREEDOM ACTION TEAM OF THE

RELIGIOUS FREEDOM INSTITUTE

IN SUPPORT OF PETITIONERS

________________

STEVEN T. MCFARLAND

LAURA NAMMO

CENTER FOR LAW &

RELIGIOUS FREEDOM

CHRISTIAN LEGAL

SOCIETY

8001 Braddock Rd.

Springfield, VA 22151

ERIC W. TREENE

Counsel of Record

ROMAN P. STORZER

STORZER & ASSOCIATES, PC

1025 Connecticut Ave., NW

Washington, D.C. 20036

(202) 857-9766

treene@storzerlaw.com

Counsel for Amici Curiae

TABLE OF CONTENTS

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

INTERESTS OF AMICI CURIAE ............................. 1

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

ARGUMENT ............................................................... 7

This Case Falls Squarely Within This Court’s

Parental Rights Decisions. .................................. 7

II.

Respondents Have Conditioned Receipt of a

Valuable Government Benefit on Forfeiting

Religious Exercise. ............................................ 18

III. Respondents’ Notice and Opt-Out Policy

Is Not Generally Applicable and Thus

Strict Scrutiny Applies. ..................................... 20

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

TABLE OF AUTHORITIES

Page(s)

Cases

American Legion v. American

Humanist Ass’n,

588 U.S. 29 (2019) ................................................. 2

Bowen v. Roy,

476 U.S. 693 (1986) ........................................ 3, 4, 7

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) ........................................ 14, 20

Carson v. Makin,

596 U.S. 767 (2022) ...................................... 2, 5, 19

Edwards v. Aguillard,

482 U.S. 578 (1987) ........................................ 14, 15

Emp’t Div. v. Smith,

494 U.S. 872 (1990) ........................................ 11, 12

Espinoza v. Montana Dep’t of Revenue,

591 U.S. 464 (2020) .......................... 5, 9, 12, 19, 20

Fulton v. City of Philadelphia,

593 U.S. 522 (2021) .......................................... 6, 21

Groff v. DeJoy,

600 U.S. 447 (2023) ............................................... 2

Hernandez v. Comm’r,

490 U.S. 680 (1989) .............................................. 13

iii

Cases--Continued

Hobbie v. Unemployment Appeals Comm’n,

480 U.S. 136 (1987) .............................................. 19

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) ............................................... 2

Larson v. Valente,

456 U.S. 228 (1982) .............................................. 22

Lee v. Weisman,

505 U.S. 577 (1992) .............................................. 15

Little Sisters of the Poor Saints Peter &

Paul Home v. Pennsylvania,

591 U.S. 657 (2020) .............................................. 13

Lyng v. Northwest Indian Cemetery

Protective Ass’n,

485 U.S. 439 (1988) .............................. 3, 4, 7, 8, 19

Mahmoud v. McKnight,

688 F.Supp.3d 265 (D. Md. 2023) ........................ 16

McDaniel v. Paty,

435 U.S. 618 (1978) .............................................. 20

Meyer v. Nebraska,

262 U.S. 390 (1923) .................................... 9, 10, 12

Minersville Sch. Dist. v. Gobitis,

310 U.S. 586 (1940) ............................................. 17

Cases--Continued

Morse v. Frederick,

551 U.S. 393 (2007) .............................................. 19

Pierce v. Soc’y of Sisters,

268 U.S. 510 (1925) ................................. 4, 5, 10-12

Roman Catholic Diocese of Brooklyn

v. Cuomo,

592 U.S. 14 (2020) ...................................... 6, 21, 22

Sherbert v. Verner,

374 U.S. 398 (1963) ................................. 5, 6, 18-20

Tandon v. Newsom,

593 U.S. 61 (2021) ................................................ 22

Thomas v. Review Bd.,

450 U.S. 707 (1981) .............................................. 19

Trinity Lutheran Church of Columbia, Inc.

v. Comer,

582 U.S. 449 (2017) .......................................... 5, 20

Troxel v. Granville,

530 U.S. 57 (2000) ............................................ 9, 12

West Virginia Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) ........................................ 15, 17

Wisconsin v. Yoder,

406 U.S. 205 (1972) ..................................... 8-12, 18

Statutes & Rules

MD. CODE REGS.

§§ 13A.04.18.01(D)(2)(e)(i) & (ii)......................... 22

Other Authorities

Douglas Laycock & Thomas C. Berg, Protecting

Free Exercise under Smith and after Smith,

2020 CATO SUP. CT. REV. 33 (2020-2021) ................. 8

Ira C. Lupu, Where Rights Begin: The Problem

of Burdens on the Free Exercise of Religion,

102 HARV. L. REV. 933 (1989) ................................... 8

James Madison, Memorial and Remonstrance

Against Religious Assessments,

[ca. 20 June] 1785, Founders Online,

National Archives ................................................ 10

Michael W. McConnell, Religious Participation

in Public Programs—Religious Freedom at a

Crossroads, 59 U. CHI. L. REV. 115 (1992) ............... 8

INTERESTS OF AMICI CURIAE1

Christian Legal Society (“CLS”) is a nonprofit,

non-denominational

association

Christian

attorneys, law students, and law professors with

members in every state and chapters on over 140 law

school campuses. CLS believes that parents of any

faith have no higher right and responsibility than to

oversee the education and protection of their children;

therefore, CLS has filed amicus briefs in many of this

Court’s cases cited herein.

Agudath Israel of America is a 103-year-old

national

Orthodox

Jewish

organization,

headquartered in New York with offices and

constituents across the United States. Among its

other activities, Agudath Israel advocates for the right

of parents to direct the educational upbringing of their

children, particularly the religious upbringing of their

children.

The Association of Christian Schools

International (ACSI) is a nonprofit association

providing support services to 24,000 Christian schools

in over 100 countries. ACSI directly serves over 5,300

member schools worldwide, including 2,200 Christian

preschools, elementary, and secondary schools and 90

post-secondary institutions in the United States; 160

Christian international schools; and over 3,000

Christian global schools. Member schools educate

some 5.5 million children around the world. ACSI

accredits Protestant pre-K-12 schools, provides

1 Pursuant to Rule 37.6, no counsel for any party in this case

wrote any part of this amici brief, and no person except amici

contributed to the costs of its preparation.

professional development and teacher certification,

and offers member schools high-quality curricula,

student testing, and a wide range of student activities.

ACSI members advance the common good by

providing quality education and spiritual formation to

their students. Our calling relies upon a vibrant

Christian faith that embraces every aspect of life. This

gives ACSI an interest in ensuring expansive religious

freedom with strong protection from government

attempts to restrict it.

First Liberty Institute is a nonprofit, public

interest law firm dedicated to defending religious

freedom for all Americans. It has argued several

religious freedom cases before this Court, including

Groff v. DeJoy, 600 U.S. 447 (2023); Kennedy v.

Bremerton Sch. Dist., 597 U.S. 507 (2022); Carson v.

Makin, 596 U.S. 767 (2022); and American Legion v.

American Humanist Ass’n, 588 U.S. 29 (2019). First

Liberty represents parents across the country who

seek to opt their children out of teaching and

curriculum that violate their sincerely held religious

beliefs, and the resolution of the issues here directly

impact them.

Focus on the Family is a global Christian

ministry dedicated to helping families thrive by

providing resources to parents as they raise their

children according to morals and values grounded in

biblical principles. Focus on the Family believes

parents have the right to exercise oversight over what

their children are taught in schools about issues of

gender and sexuality, including a right to opt out of

teaching or curriculum that may violate their

sincerely held religious beliefs.

The National Association of Evangelicals is

the largest network of evangelical churches,

denominations, colleges, and independent ministries

in the United States. It serves 40 member

denominations, as well as numerous evangelical

associations, mission social-service charities, refugee

and humanitarian aid agencies, colleges, seminaries,

and independent churches.

The Islam and Religious Freedom Action

Team of the Religious Freedom Institute explores

and supports religious freedom from within the

traditions of Islam and also partners in advocacy with

other action teams within the Religious Freedom

Institute (RFI). RFI is committed to achieving broad

acceptance of religious freedom as a fundamental

human right. RFI Action Teams have a presence on

the ground in each region to build coalitions and work

toward making religious freedom a priority for

governments, civil society, religious communities,

businesses, and the general public.

SUMMARY OF ARGUMENT

The court of appeals framed its approach to the

issues in this case around two decisions of this Court:

Lyng v. Northwest Indian Cemetery Protective Ass’n,

485 U.S. 439 (1988), and Bowen v. Roy, 476 U.S. 693

(1986). See Pet. App. 25a-26a. This framing is both

startling and sweeping. It is startling in its choice of

two cases setting forth free exercise standards for a

narrow category of cases involving a type of

government action that does not even apply here. And

it is sweeping in the far-reaching effects such an

approach will have in foreclosing future claims

involving even the most severe burdens on religious

exercise.

Lyng and Roy involved Free Exercise Clause

challenges to a very specific set of government actions,

namely government acting as proprietor of real

property and government conducting its internal

operations in a way that someone takes issue with on

religious grounds. This arose with real property in

Lyng, where Native Americans objected on religious

grounds to construction of a road on U.S. Forest

Service land. In Roy, it arose regarding internal

governmental

operations

addressing

the

government’s use of social security numbers to

identify benefit recipients.

The court of appeals seized on the basic holdings of

these two cases; namely, that the government, as a

general matter, does not impose a redressable

constitutional injury when third parties object to how

the government manages its real property or conducts

its internal operations. It then applied these

principles to craft a rule for a very different scenario:

public school students and their parents who allege

that certain curricular materials will cause them

religious harm and seek notice and an opt-out when

those objectionable materials are taught. Analogizing

public school students seeking to avoid the direct

imposition of religiously harmful material upon them

to third parties’ objection to the government’s internal

operations and to use by the government of

government land is an astounding leap.

First, the decision evades a long line of holdings

regarding the religious rights of parents to direct the

upbringing of their children. While Pierce v. Soc’y of

Sisters, 268 U.S. 510, 535 (1925), acknowledged the

fundamental principle that “[t]he child is not the mere

creature of the state,” the court of appeals’ ruling

necessarily implies, whether it recognized it or not,

that with respect to what happens in public school

classrooms during instructional time, children are

exactly that.

Second, the decision’s characterization of public

schooling as the government doing as it wishes with

its own property and internal operations could apply

equally to many of the Court’s recent free exercise

decisions. Money is of course a form of property, and

government programs are a form of government

operations. If, as the court of appeals held, the

government is free to utilize its resources as it wishes

without regard to free exercise impacts, then Carson

v. Makin, 596 U.S. 767 (2022), and Espinoza v.

Montana Dep’t of Revenue, 591 U.S. 464 (2020), would

have come out the other way. In Carson, after all,

Maine insisted that it was trying to offer the

equivalent of a public education, 596 U.S. at 782-85,

and in Espinoza, the state asserted fealty to its

constitution and the state’s chosen way of handling

government educational funds with regard to

religious institutions. 591 U.S. at 484-86. But this

Court rejected such arguments, along with similar

ones in Trinity Lutheran Church of Columbia, Inc. v.

Comer, 582 U.S. 449 (2017). Indeed, even seminal free

exercise decisions like Sherbert v. Verner, 374 U.S. 398

(1963), could not stand under the court of appeals’

reasoning. After all, what was Sherbert but a case of

the government operating a social welfare program

and limiting unemployment benefits in the way it

deemed best, namely limiting payment to those who

would accept any work available?

A third error of the court of appeals was its

rejection of Petitioners’ argument that strict scrutiny

applies under the Free Exercise Clause because

Respondents reserve for themselves the discretion to

supply notice and an opt-out for sex education but no

notice and opt-out for its LGBTQ curriculum. This is

a mechanism of selective exemptions, and it

represents a value judgment that persons with

religious and non-religious objections to sex education

deserve such consideration, but parents who object to

the LGBTQ curriculum do not. This selectivity

triggers strict scrutiny under both Fulton v. City of

Philadelphia, 593 U.S. 522 (2021), and Roman

Catholic Diocese of Brooklyn v. Cuomo, 592 U.S. 14

(2020). Some families of faith may believe that older

children learning about sexual activity, venereal

diseases and their prevention, and contraception in

sex education is more of an imposition on their

religion than teaching younger children that gender is

purely a choice and discussing same-sex relationships.

For other families, however, the opposite will be true.

But the government is not permitted to favor some

religious beliefs over others without satisfying strict

scrutiny.

For these reasons, the Court should reverse the

decision of the court of appeals.

ARGUMENT

I. This Case Falls Squarely Within This Court’s

Parental Rights Decisions.

The court of appeals framed this case as one

involving not government infringement upon parents’

fundamental right to guide the religious upbringing of

their children, but rather as one of parents trying to

alter a school curriculum to fit their religious views.

This fundamental misconception led the court to

erroneously apply this Court’s precedents dealing

with challenges to the government’s own operations.

Citing Roy, the court of appeals stated that the Free

Exercise Clause is “written in terms of what the

government cannot do to the individual, not in terms

of what the individual can extract from the

government.” Pet. App. 25a (quoting Roy, 476 U.S. at

700). Petitioners here, however, seek nothing from the

government other than the ability to exempt their

children from a curriculum that violates their

religious beliefs.

The court of appeals also twice quoted language

from Roy stating that the Free Exercise Clause does

not “require the Government itself to behave in ways

that the individual believes will further his or her

spiritual development or that of his or her family.”

Pet. App. 25a, 39a (quoting Roy, 476 U.S. at 699). It

viewed the present case as one, like Roy, focused on

how the government “conduct[s] its own internal

affairs.” Pet. App. 40a (quoting Roy, 476 U.S. at 699).

The court of appeals likewise cited Lyng for the

proposition that free exercise rights do not extend to

“the legitimate conduct by government of its own

affairs.” Pet. App. 25a (quoting Lyng, 485 U.S. at

451).2

But the parents in this case are not asking the

government to remove materials from its curriculum

or add new materials that the parents think would be

better. They are asking only that certain materials,

which they believe interfere with their children’s

religious upbringing, not be imposed on their children

and that they be given notice and an opportunity to

opt out of exposure to materials they believe are

religiously harmful. Just as the Amish families in

Wisconsin v. Yoder, 406 U.S. 205 (1972), did not ask

for the public schools to change how they conducted

their educational programs to conform to the Amish

educational way, but rather asked to be able to opt out

after eighth grade, so, too, do these parents not seek

to change anything about what the Respondents’

Lyng has faced criticism that it did not fully address the

problems inherent in the facts of that case: whether the land

could be deemed wholly the government’s to do with as it wished

in light of the current and traditional use of the land in question

by Native Americans for religious purposes, as well as the special

relationship of Native Americans to the federal government. The

plaintiffs in Lyng thus arguably had a specific claim of injury

from the construction of the road, and many have called for it to

be revisited. See, e.g., Douglas Laycock & Thomas C. Berg,

Protecting Free Exercise under Smith and after Smith, 2020 CATO

SUP. CT. REV. 33, 58-59 (2020-2021); Michael W. McConnell,

Religious Participation in Public Programs—Religious Freedom

at a Crossroads, 59 U. CHI. L. REV. 115, 125-26, 170-71 (1992);

Ira C. Lupu, Where Rights Begin: The Problem of Burdens on the

Free Exercise of Religion, 102 HARV. L. REV. 933, 945-46, 973-76

(1989). An example that does not have this factual complexity

would be a citizen objecting to an Army office building being

constructed in the shape of a five-pointed star on the ground that

this can be an occult symbol and impacts her faith in some way.

schools are teaching, but rather ask that their

children be able to opt out of those things that

interfere with their exercise of their faith.

The court of appeals minimized the relevance of

Yoder, saying that Yoder “has been markedly

circumscribed within free exercise precedent in the

decades since it was decided.” Pet. App. 37a. See also

id. at 39a. (“[I]n Yoder, the Supreme Court applied a

narrower principle to a singular set of facts.”). While

some—but not all—lower courts have declined to

apply Yoder to cases like this one (see Pet. at 19-23),

in this Court’s jurisprudence Yoder has never been

“markedly circumscribed.” Rather, it remains a strong

and frequently cited statement of the fundamental

right of parents to direct the religious upbringing of

their children. As this Court held recently in

Espinoza: “Drawing on ‘enduring American tradition,’

we have long recognized the rights of parents to direct

‘the religious upbringing’ of their children.” 591 U.S.

at 486 (quoting Yoder, 406 U.S. at 213-14, 232).

Similarly, this Court, in Troxel v. Granville, 530 U.S.

57, 65 (2000), citing Yoder and other cases, stated that

“the interest of parents in the care, custody, and

control of their children [] is perhaps the oldest of the

fundamental liberty interests recognized by this

Court.” The Court explained that the Due Process

Clause protects “the right of parents to ‘establish a

home and bring up children’ and ‘to control the

education of their own.’” Id. at 65 (quoting Meyer v.

Nebraska, 262 U.S. 390, 399, 401 (1923)).

This Court’s grounding of this right in both the

Free Exercise Clause and the Due Process Clause has

its roots in Meyer, addressing a ban on foreign

language instruction, and in Pierce, which invalidated

an Oregon law requiring all parents to send their

children to public school. Pierce (like Meyer) was

decided before the incorporation of the Free Exercise

Clause and was thus decided only under the Due

Process Clause, but it nonetheless is a holding with

strong religious elements, underscoring that parents

have the right to inculcate values such as religion,

which are outside the province of the state: “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, 268 U.S. at

535. The Court’s reference to “additional obligations”

would appear to be a reference to higher duties such

as religious duties. See, e.g., James Madison,

Memorial and Remonstrance Against Religious

Assessments,

[ca.

June]

1785, Founders

Online, National Archives, http://founders.archives.

gov/documents/Madison/01-08-02-0163 (“It is the duty

of every man to render to the Creator such homage

and such only as he believes to be acceptable to him.

This duty is precedent, both in order of time and in

degree of obligation, to the claims of Civil Society.”).

The Court in Yoder drew extensively on Pierce,

holding 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.” Yoder, 406 U.S. at 213-14. Indeed, the

Court concluded that

only those interests of the highest order

and those not otherwise served can

overbalance legitimate claims to the free

exercise of religion. We can accept it as

settled, therefore, that, however strong the

State’s interest in universal compulsory

education, it is by no means absolute to the

exclusion or subordination of all other

interests.

Id. at 215.

This Court, in Emp’t Div. v. Smith, 494 U.S. 872

(1990), while describing Yoder as an exception to the

general rule regarding neutral and generally

applicable laws, nonetheless described in very broad

terms the untouched exception to the general rule of

when the state interferes with parents’ religious

upbringing of their children, citing both Pierce and

Yoder:

The only decisions in which we have held

that

the

First

Amendment

bars

application of a neutral, generally

applicable law to religiously motivated

action have involved not the Free Exercise

Clause alone, but the Free Exercise Clause

in conjunction with other constitutional

protections, such as . . . the right of

parents, acknowledged in Pierce v. Society

of Sisters, 268 U.S. 510, 45 S. Ct. 571, 69

L. Ed. 1070 (1925), to direct the education

of their children, see Wisconsin v. Yoder,

406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d

15 (1972) (invalidating compulsory schoolattendance laws as applied to Amish

parents who refused on religious grounds

to send their children to school).

494 U.S. at 881. This Court, far from “markedly

circumscrib[ing]” the holding of Yoder as the court of

appeals believed, in fact has continually situated

Yoder within the line of free exercise and due process

fundamental rights cases running from Meyer and

Pierce through Troxel and Espinoza.

The court of appeals also sought to minimize the

harm to Petitioners, saying that exposing their

children to these materials is not equivalent to the

harm in Yoder, where, without an opt-out, the Amish

families were forced to send their children to school

against their wills. This is wrong on two grounds.

First, the court of appeals enmeshed itself in religious

value judgments, finding the imposition on the

religion of the Amish to be qualitatively different from

the imposition on the religion of these Petitioners. The

Petitioners in this case have set forth in detail how

they and their children are injured by the

government’s actions. Petitioners Mahmoud and

Barakat, who are Muslim, presented evidence that

their faith forbids them from “[i]ntentionally exposing

[their] young, impressionable, elementary-age son to

activities and curriculum on sex, sexuality, and

gender that undermine Islamic teachings,” Pet. App.

532a, and removed their son from public school after

the district court rejected their claim. Pet. at 9.

Likewise, the Persaks, who are Roman Catholic,

believe that exposing their “elementary-aged

daughters to viewpoints on sex, sexuality, and gender

that contradict Catholic teaching on these subjects is

inappropriate and conflicts with [their] religious duty

to raise [their] children in accordance with Catholic

teaching.” Pet. App. 544a. Petitioners Jeff and

Svitlana Roman, who are Roman Catholic and

Ukrainian Orthodox, respectively, believe in the

teaching of the Roman Catholic Church on sexuality

and sexual identity and believe they have a “sacred

obligation to teach these principles to [their] son and

to encourage him at appropriate times to embrace

these principles and [their] religious way of life.” Id.

at 538a. They also removed their son from public

school because of the district court denying a

preliminary injunction. Pet. at 10. Likewise, one of the

members of Petitioner Kids First removed their

disabled child from the public school because of the

Pride storybooks, incurring costs of $25,000 per year.

Pet. App. 648a-649a.

There is no indication in the record that these

Petitioners are insincere in their religious beliefs.

Further, this Court has been clear over many decades

that courts are not to judge the centrality or validity

of plaintiffs’ religious beliefs. Rather, sincere

assertions of religious beliefs, and the nature of the

burdens upon them that a plaintiff articulates, must

be accepted. “It is not within the judicial ken to

question the centrality of particular beliefs or

practices to a faith, or the validity of particular

litigants’ interpretations of those creeds.” Hernandez

v. Comm’r, 490 U.S. 680, 699 (1989); see also Little

Sisters of the Poor Saints Peter & Paul Home v.

Pennsylvania, 591 U.S. 657, 681 (2020) (when

religious beliefs are sincerely held, the government

cannot “tell the plaintiffs that their beliefs are

flawed”); Burwell v. Hobby Lobby Stores, Inc., 573

U.S. 682, 685-86 (2014) (question was whether

government “imposes a substantial burden on the

ability of the objecting party to conduct business in

accordance with their religious beliefs. . . . [O]ur

narrow function in this context is to determine

whether the plaintiffs’ line drawing reflects an honest

conviction.”) (cleaned up). As the dissent in the court

of appeals described it:

These parents’ faith dictates that they—

not others—teach their children about sex,

human sexuality, gender and family life.

Their faiths dictate that they shield their

children from teachings that contradict

and undermine their religious views on

those topics. And no matter how you slice

it, the board’s 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.

Pet. App. 63a. The court of appeals majority’s parsing

and weighing of the parents’ religious beliefs, and

concluding that this is less of an imposition on religion

than making an Amish child go to school after the

eighth grade, is at odds with this Court’s repeated

instruction that courts not make such religious

determinations.

Second, the actions of Respondents are objectively

coercive under this Court’s precedents. This Court has

stressed that grade-school teachers have a powerful

influence on children that raises concerns when that

influence conflicts with faith and conscience. As the

Court stated in Edwards v. Aguillard, 482 U.S. 578,

584 (1987): “The State exerts great authority and

coercive power through mandatory attendance

requirements, and because of the students’ emulation

of teachers as role models and the children’s

susceptibility to peer pressure.” Likewise, the Court

observed in Lee v. Weisman, 505 U.S. 577, 592 (1992),

that “there are heightened concerns with protecting

freedom of conscience from subtle coercive pressure in

the elementary and secondary public schools.” See

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

624, 632, 637 (1943) (recognizing the coercive

pressure of elementary school classrooms, where

“attendance is not optional,” and thus school officials

must exercise “scrupulous protection of Constitutional

freedoms of the individual, if we are not to strangle

the free mind at its source”).

Here, the written materials in the LGBTQ

curriculum, and the accompanying instructional

materials for teachers, are specifically designed to

change the thinking of students. The book

“Intersection Allies,” designed for “Kindergarten

through Grade 5,” Pet. App. 236a, tells children about

being non-binary and transgender, id. at 350a, and

declares “standing together, we’ll rewrite the norms.”

Id. at 345a. The book “Born Ready,” also for K-5, Pet.

App. 240a, features a biological girl who identifies as

a boy. When her brother says that this doesn’t make

sense, his mother corrects him and says “[n]ot

everything needs to make sense. This is about love.”

Id. at 465a. The teachers’ guide instructs that

teachers can respond to questions as follows: “Our

body parts do not decide our gender. Our gender

comes from our inside—we might feel different than

what people tell us we are. We know ourselves best.”

App. 630a-631a. As the dissent below in this case also

points out, another instruction document advises

teachers to “[d]isrupt the either/or thinking by saying

something like: actually, people of any gender can like

whoever they like. . . . Do you think it is fair for people

to decide for us who we can and can’t like?” Id. at 62a.

Another training sheet asks: “Is heternonormitivity

reinforced or disrupted?” and “Is cisnormativity

reinforced or disrupted?” Id. at 622a. Religious

parents can accurately read these materials as

comprising a deliberate program to counter the

religious teachings their children receive at home

about sexuality and gender.

These, and other examples cited by the Petitioners,

see Pet. at 11-14, reveal a steady stream of books and

instructional materials for teachers designed to

profoundly impact the beliefs of the students. It is no

answer that parents can still teach their faith at

home, as the district court and Petitioners aver. See

Mahmoud v. McKnight, 688 F.Supp.3d 265, 299 (D.

Md. 2023) (“The parents still may instruct their

children on their religious beliefs regarding sexuality,

marriage, and gender, and each family may place

contrary views in its religious context.”); id. (“No

government action prevents the parents from freely

discussing the topics raised in the storybooks with

their children or teaching their children as they

wish.”); Pet. App. 136a-137a (quoting former

Montgomery

School

Superintendent

Monifa

McKnight stating: “Every day, when our children go

home, then they have the lessons that are taught in

their home that is reflective of culture, religion, and

all of those pieces.”).

This Court briefly considered and then

resoundingly rejected such a parental mitigation

defense to mandatory indoctrination in public schools.

In Minersville Sch. Dist. v. Gobitis, 310 U.S. 586, 599,

(1940), one reason the Court gave for upholding

compulsory pledges of allegiance was that “the state

is normally at a disadvantage in competing with the

parent’s authority, so long—and this is the vital

aspect of religious toleration—as parents are

unmolested in their right to counteract by their own

persuasiveness the wisdom and rightness of those

loyalties which the state’s educational system is

seeking to promote.” This Court wisely rejected such

a proposition and reversed Gobitis three years later in

Barnette.

The freedom of Montgomery County parents to

teach their children their faith at home simply does

not justify the state using the kind of coercive power

at work here. See Pet. at 14 (citing lower court briefing

in which counsel for Respondents states that students

“may come away from [the] instruction with a new

perspective not easily contravened by their parents.”)

(emphasis added).

Regardless of how objectively coercive these

materials are, these parents have presented

unchallenged evidence that they sincerely believe

these materials interfere with their religious

upbringing of their children and cause their children

religious harm. That is the dispositive question that

this Court has emphasized is the test, and it is easily

met here.

II. Respondents Have Conditioned Receipt of a

Valuable Government Benefit on Forfeiting

Religious Exercise.

In addition to trying to distinguish Yoder based on

the nature and degree of religious harm involved, Pet.

App. 36a-40a, the court of appeals also dismissed

Petitioners’ argument that the Respondents

improperly pressured Petitioners to violate their

religious beliefs as a condition of receiving the benefit

of a public education. Id. at 44a-48a. The court of

appeals concluded 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.

A review of this Court’s free exercise

jurisprudence, however, reveals the very opposite. It

is true, as the court of appeals noted, that in Yoder the

parents were “affirmatively compelled . . . under

threat of criminal sanction, to perform acts

undeniably at odds with fundamental tenets of their

religious beliefs.” Id. at 39a (quoting Yoder, 406 U.S.

at 218). Thus, in Yoder, the challenged government

action was forcing, on pain of criminal sanction, the

conduct that was religiously injurious. But such

incidents of government forcing conduct are far less

common in free exercise cases than government

conditioning a benefit on abandoning one’s religious

beliefs or practices. In Sherbert, the government did

not force the plaintiff to work on Saturdays, her

Sabbath. Rather, the government required this as a

condition of receiving unemployment benefits. The

same is true for this Court’s free exercise

unemployment cases. The free exercise of religion in

these cases is “infringed by the denial of or placing of

conditions upon a benefit or privilege,” Sherbert, 374

U.S. at 404, “substantial pressure” to modify religious

practices, Thomas v. Review Bd., 450 U.S. 707, 718

(1981), and by being “forced to choose between fidelity

to religious belief” and “the forfeiture of [public]

benefits.” Hobbie v. Unemployment Appeals Comm’n,

480 U.S. 136, 144 (1987).

Likewise, this pressure to modify religious beliefs

and practice is a prominent feature of this Court’s

most recent free exercise cases. Public education is an

extremely valuable benefit and, for those who cannot

afford private school or whose personal circumstances

do not permit homeschooling, it is more than just a

benefit, but an unavoidable requirement. “Most

parents, realistically, have no choice but to send their

children to a public school and little ability to

influence what occurs in the school.” Morse v.

Frederick, 551 U.S. 393, 424 (2007) (Alito, J.,

concurring). But even for parents who have options,

“[t]he Free Exercise Clause of the First Amendment

protects against ‘indirect coercion or penalties on the

free exercise of religion, not just outright

prohibitions.’” Carson, 596 U.S. at 778 (quoting Lyng,

485 U.S. at 450). The Court in Carson invalidated the

state of Maine’s exclusion of religious (but not other

private) schools from its tuition program for students

without a public school in their district over the state’s

objection that it was merely trying to finance the

equivalent of public-school instruction. 596 U.S. at

782-85. Similarly, the Court in Espinoza struck down

the exclusion of religious schools from a scholarship

program. The Court held that “[p]lacing such a

condition on benefits or privileges ‘inevitably deters or

discourages the exercise of First Amendment rights.’”

591 U.S. at 478 (quoting Trinity Lutheran, 582 U.S. at

463); cf. Hobby Lobby, 573 U.S. at 720-22 (substantial

burden under Religious Freedom Restoration Act

created by financial penalties for not providing

contraceptive coverage).

As this Court held more than 60 years ago, “[i]t 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.”

Sherbert, 374 U.S. at 404; see also McDaniel v. Paty,

435 U.S. 618, 633 (1978) (Brennan, J., concurring in

judgment) (The “proposition—that the law does not

interfere with free exercise because it does not directly

prohibit religious activity, but merely conditions

eligibility for office on its abandonment—is . . .

squarely rejected by precedent.”).

Here, as the dissent below observed, “[t]he board’s

refusal to grant the parents’ requests for religious optouts to instruction . . . forces the parents to make a

choice—either adhere to their faith or receive a free

public education for their children. They cannot do

both.” Pet. App. 62a. Under this Court’s precedents,

that is a burden under the Free Exercise Clause that

triggers strict scrutiny.

III. Respondents’ Notice and Opt-Out Policy Is

Not Generally Applicable and Thus Strict

Scrutiny Applies.

The court of appeals rejected Petitioners’ claim

that strict scrutiny review was required because

Respondents were infringing Petitioners’ religious

exercise through imposition of a rule that is not

generally applicable. Pet. App. 19a, 29a-30a. But

under this Court’s precedents, the Respondents’

refusal to grant notice and opt-outs to these parents

was a non-generally applicable action for two reasons.

First, the Respondents reserve for themselves

discretion on when to provide parents with curricular

opt-outs and when not to. They originally permitted

opt-outs for the LGBTQ curriculum but then reversed

course. Id. at 185a, 657a. As the dissent explained, the

schools “have discretion to grant religious opt-out

requests. A school decides on a case-by-case basis if

the requested religious accommodation is ‘reasonable’

and ‘feasible.’” Id. at 68a. The government’s decision

to reserve such discretion to itself triggers strict

scrutiny review when such discretion is withheld from

a religious objector. Fulton, 593 U.S. at 533-38.

Second,

Respondents’

actions

constitute

governmental value judgments favoring opt-outs for

certain categories of reasons and refusing to provide

opt-outs for these parents’ religious reasons. The

Respondents provided, and continue to provide, notice

and opt-outs for parents objecting to sex education,

but refuse to provide opt-outs for Petitioners’ sincere

religious objections to the LGBTQ curriculum. This

conflicts with this Court’s decisions in Roman

Catholic Diocese of Brooklyn v. Cuomo, 592 U.S. 14

(2020), and Tandon v. Newsom, 593 U.S. 61 (2021), in

which the government’s favored treatment for various

categories of places where people assemble triggered

strict scrutiny under the Free Exercise Clause when

similar treatment was denied for religious assemblies.

Certain things that some people object to exposing

their children to—the content of sex-ed curriculum—

are favored with opt-outs, while Petitioners’ religious

objections to the LGBTQ curriculum are disfavored.

This triggers strict scrutiny under Diocese of Brooklyn

and Tandon.

It is no answer that many of the favored objectors

to the sex-ed curriculum likely have religious

objections. It is surely more of a free exercise violation,

not less, if certain religions or religious beliefs receive

favorable treatment over others. See, e.g., Larson v.

Valente, 456 U.S. 228 (1982) (singling out for

disfavored treatment religious groups that solicited

door-to-door was unconstitutional denominational

preference).

It is likewise no answer that the state of Maryland

requires Respondents to establish procedures for sexed opt-outs. See MD. CODE REGS. §§13A.04.18.01(D)(2)

(e)(i) & (ii). The Respondents are governmental actors,

whose power and authority ultimately comes from the

state of Maryland. The bottom line is that those who

object to learning about sexual activity, contraception,

venereal disease, and similar subjects are favored and

are given opt-outs by the Respondents, but those

objecting to the LGBTQ curriculum based on their

sincere religious beliefs are disfavored and denied optouts by Respondents. This disparate treatment is only

permissible if Respondents can meet strict scrutiny.

CONCLUSION

For the foregoing reasons, the Court should

reverse the decision of the court of appeals.

Respectfully submitted,