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.,
Respondents.
————
On Writ of Certiorari to the United States Court
of Appeals for the Fourth Circuit
————
BRIEF OF MUSLIM PARENTS, SHEIKHS, AND IMAMS
AS AMICI CURIAE IN SUPPORT OF PETITIONERS
————
STEVEN T. COLLIS
Counsel of Record
JOHN GREIL
LAW & RELIGION CLINIC
UNIVERSITY OF TEXAS
SCHOOL OF LAW
727 E. Dean Keeton St.
Austin, TX 78705
512-475-9090
steven.collis@law.utexas.edu
john.greil@law.utexas.edu
March 10, 2025
Counsel for Amici Curiae
WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002
QUESTION PRESENTED
Do public schools burden parents’ religious exercise
when they compel elementary school children to participate in instruction on gender and sexuality against
their parents’ religious convictions and without notice
or opportunity to opt out?
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ....................................... iii
INTEREST OF AMICI ................................................. 1
SUMMARY OF ARGUMENT ...................................... 2
ARGUMENT ................................................................. 6
I. The Fourth Circuit’s opinion disrupts the
careful balance the law strikes regarding
religion in public schools. ........................................ 6
A. The law protects, and the Establishment
Clause does not forbid, students’ religious
exercise in public schools. .................................. 7
B. The Fourth Circuit’s application of the
internal affairs doctrine destroys the
balance in public schools by discouraging
religious families from attending. ................... 12
C. Driving religious families from public
schools fails to prepare all students to live
in our religiously diverse society. .................... 17
II. The substantial burden test stated in Lyng and
applied by the panel is atextual and at odds
with the original public meaning of the Free
Exercise Clause. .................................................... 19
A. The Free Exercise Clause is implicated
when government “forbids by law” or
“hinders” the free exercise of religion. ............ 19
B. This Court has not applied Lyng’s
substantial burden rule since it was
decided, while other cases from this Court
have undermined it. ......................................... 26
C. Even under Lyng’s faulty analysis, Parents
have shown a substantial burden here. .......... 31
CONCLUSION ............................................................ 34
APPENDIX ................................................................ A-1
ii
TABLE OF AUTHORITIES
Cases
Abington School District v. Schempp,
374 U.S. 203 (1963).................................................................... 7
Apache Stronghold v. United States,
101 F.4th 1036 (9th Cir. 2024) (en banc)........................ 231, 22
Barr v. City of Sinton,
295 S.W.3d 287 (Tex. 2009) ..................................................... 22
Board of Education v. Mergens,
496 U.S. 226 (1990).................................................................... 8
Bowen v. Roy,
476 U.S. 693 (1986).................................................. 3, 12, 13, 14
Braunfeld v. Brown,
366 U.S. 599 (1961).................................................................. 33
Burwell v. Hobby Lobby Stores, Inc.,
573 U.S. 682 (2014)............................................................ 30, 32
Carson v. Makin,
596 U.S. 767 (2022).................................................................. 29
DeMarco v. Davis,
914 F.3d 383 (5th Cir. 2019) ................................................... 31
Donovan v. Punxsutawney Area Sch. Bd., 336 F.3d
211 (3d Cir. 2003) ...................................................................... 8
E. Tex. Baptist Univ. v. Burwell,
793 F.3d 449 (5th Cir. 2015) ................................................... 30
Edwards v. Aguillard,
482 U.S. 578 (1987).................................................................... 6
Employment Division v. Smith,
494 U.S. 872 (1990)...................................................... 24, 29, 32
Engel v. Vitale,
370 U.S. 421 (1962).................................................................... 6
Espinoza v. Montana Department of Revenue,
591 U.S. 464 (2020).................................................................. 29
iii
Everson v. Board of Education of Ewing Tp.,
330 U.S. 1 (1947)........................................................................ 7
Fulton v. City of Philadelphia,
141 S. Ct. 1868 (2021) ................................................. 20, 23, 24
Geneva Coll. v. Sec’y U.S. Dep’t of Health & Human
Services, 778 F.3d 422 (3d Cir. 2015) ..................................... 30
Good News Club v. Milford Central School,
533 U.S. 98 (2001)................................................................ 9, 12
Holt v. Hobbs,
574 U.S. 352 (2015)............................................................ 29, 30
Janus v. Am. Fed'n of State, Cnty., & Mun. Emps.,
Council, 585 U.S. 878 (2018) ............................................. 27, 31
Kennedy v. Bremerton School District,
597 U.S. 507 (2022)................................................ 2, 6, 8, 11, 17
Kimble v. Marvel Ent., LLC,
576 U.S. 446 (2015).................................................................. 27
Lee v. Weisman,
505 U.S. 577 (1992)................................................................ 6, 7
Lyng v. Northwest Indian Cemetery Protective Ass’n,
485 U.S. 439 (1988).................................. 4, 5, 19–22, 24–31, 34
Mahmoud v. McKnight,
102 F.4th 191 (4th Cir. 2024) .................... 13, 25, 26, 28, 31–34
Michigan v. Bay Mills Indian Community,
572 U.S. 782 (2014).................................................................. 27
Morgan v. Swanson,
659 F.3d 359 (5th Cir. 2011) (en banc) ..................................... 8
McCollum v. Bd. of Ed. of Sch. Dist. No. 71,
Champaign Cnty., Ill.,
333 U.S. 203 (1948).................................................................... 7
Priests For Life v. U.S. Dep’t of Health & Human
Services, 772 F.3d 229 (D.C. Cir. 2014) .......................... 4, 5, 30
Prince v. Jacoby,
303 F.3d 1074 (9th Cir. 2002) ................................................... 9
iv
Rosenberger v. Rector and Visitors of University of
Virginia, 515 U.S. 819 (1995) .................................................. 12
Sherbert v. Verner,
374 U.S. 398 (1963)...................................................... 19, 20, 33
Tanzin v. Tanvir,
592 U.S. 43 (2020).................................................................... 31
Thomas v. Rev. Bd. of Ind. Emp. Sec. Div.,
450 U.S. 707 (1981).................................................. 3, 25, 26, 33
Tinker v. Des Moines Indep. Cnty. Sch. Dist.,
393 U.S. 503 (1969).................................................................... 8
Trinity Lutheran v. Comer,
582 U.S. 449 (2017)........................................................ 4, 29, 34
Van Orden v. Perry,
545 U.S. 677 (2005).................................................................. 12
West Virginia Board of Education v. Barnette,
319 U.S. 624 (1943)................................ 3, 6, 8, 9, 10, 11, 13, 16
Widmar v. Vincent,
454 U.S. 263 (1981).............................................................. 6, 12
Wisconsin v. Yoder,
406 U.S. 205 (1972)...................................... 6, 15, 28, 31, 32, 34
Yang v. Sturner, 728 F.Supp. 845 (DRI 1990), opinion
withdrawn 750 F.Supp. 558 (DRI 1990)................................. 31
Yellowbear v. Lampert,
741 F.3d 48 (10th Cir. 2014) ................................................... 24
Zorach v. Clauson,
343 U.S. 306 (1952).................................................. 2, 10, 11, 15
Zubik v. Burwell,
578 U.S. 403 (2016).............................................................. 5, 30
Constitutional Provisions and Statutes
Equal Access Act, 20 U.S.C. §4071–4074 ............ 2, 6–9, 11, 17, 18
Free Exercise Clause, U.S. CONST. amend. I....................... passim
Free Speech Clause, U.S. CONST. amend. I. .............................. 2, 6
Religious Freedom Restoration Act,
v
42 U.S.C. § 2000bb et seq. ..................................... 22, 29, 30, 32
Religious Land Use and Institutionalized Persons Act,
42 U.S.C. §2000cc et seq. ............................................. 29, 30, 32
Other Authorities
SAHIH AL-BUKHARI, HADITHS .......................................................... 1
JOHN ASH, THE NEW & COMPLETE DICTIONARY OF THE ENGLISH
LANGUAGE (2d ed. 1795) .......................................................... 23
NATHAN BAILEY, UNIVERSAL ETYMOLOGICAL ENGLISH
DICTIONARY (22d ed. 1770) ...................................................... 22
JOHN BOAG, THE IMPERIAL LEXICON OF THE ENGLISH LANGUAGE
275 (1850) ................................................................................. 23
Steven T. Collis, Public Employees as a Reflection of a
Religiously Diverse Culture, 99 NOTRE DAME L. REV.
REFLECTION 229 (2024) ....................................................... 4, 18
THOMAS DYCHE & WILLIAM PARDON, A NEW GENERAL ENGLISH
DICTIONARY (14th ed. 1771) .................................................... 23
J. MARK HALSTEAD, ISLAMIC EDUCATION IN THE WEST AND ITS
CHALLENGES 262 in Handbook of Contemporary Islam and
Muslim Lives (Lukens-Bull and Woodward, eds. 2021) ........ 16
SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE
(6th ed. 1785) ................................................................. 4, 22, 23
Appellants’ Reply Brief at 1, Mahmoud v. McKnight, 2023 WL
7326987 (U.S. 2023)................................................................. 31
Michael W. McConnell, The Origins and Historical
Understanding of Free Exercise of Religion, Hᴀʀᴠ. L. Rᴇᴠ.
1409 (1990). .............................................................................. 21
JOHN MCGREEVY, CATHOLICISM AND AMERICAN FREEDOM: A
HISTORY (2003) ........................................................................ 16
JOHN MILTON, PARADISE LOST (John Leonard, ed., Penguin
Classics 2003) (1667). .............................................................. 23
DAVID O’BRIEN, PUBLIC CATHOLICISM 44–45 (1989) .............. 15, 16
QUR’AN ............................................................................................ 1
Renaissance Academy, FAQ, 19-Acre Campus: Shaping a
vi
Brighter Future Together, https://racademy.org/newcampus/
(last visited March 4, 2025). .................................................... 16
Eric H. Wang, To Prohibit Free Exercise: A Proposal for Judging
Substantial Burdens on Religion, 72 EMORY L.J. 723 (2023).
.................................................................................................. 16
NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH
LANGUAGE (1828) ..................................................................... 23
vii
INTEREST OF AMICI1
Amici are Muslim parents, scholars, and religious
leaders who seek to protect the ability of Muslim families to practice their faith. They believe no opt-out
provision in public schools forces Muslim parents to
expose their children to teachings that conflict with
core religious beliefs, undermining their ability to
raise their children in accordance with Islamic obligations. Amici are identified in the Appendix.
Amici recognize that parents have a religious duty
to raise their children in accord with moral habits and
Islamic teachings. The Qur’an imposes a duty on parents to educate their children: “God advises you regarding your children,” QUR’AN 4:11, and “Save yourselves and your families from the hellfire, whose fuel
is people and stones,” QUR’AN 66:6.
Both father and mother bear this responsibility
equally, and the obligation is of utmost importance.
“No servant of God who is given an obligation and
flouts it is saved from the hellfire. The leader of the
community is a servant and is responsible to serve his
community. A wife/mother in her household is a servant and is responsible for her house.” SAHIH AL-BUKHARI, HADITH NO. 7138.
Amici also believe that some of the content at issue,
if internalized by children, would violate their parental duties. See, e.g., QUR’AN 24:19.
1 Pursuant to Supreme Court Rule 37.6, counsel for amici state
that no counsel for a party authored this brief in whole or in
part, and no person or entity other than amici or their counsel
made a monetary contribution to this brief’s preparation or
submission. All parties have received timely notice of the filing
of this brief.
1
SUMMARY OF ARGUMENT
This brief places the dispute in this case within the
broader cultural context of public schools in a religiously pluralistic society. How much religion the
Constitution allows in public schools is a question of
utmost importance in a society as religiously diverse
as the United States. Despite all the disagreements
related to the religion clauses, this Court’s interpretation of them has struck a workable balance by ensuring that students and their families are not barred
from exercising their religion after passing through
the schoolhouse doors. The Fourth Circuit’s reasoning
would disrupt that balance and should be reversed.
For decades, this Court has maintained a delicate
equilibrium in our public schools: The Establishment
Clause prevents teachers and administrators from coercing religion on students, while the Free Exercise
Clause, the Free Speech Clause, and the Equal Access
Act ensure students can bring their religious beliefs,
identities, and practices onto campus. See Kennedy v.
Bremerton School District, 597 U.S. 507 (2022). This
balance ensures religion is present in public schools
without allowing government actors to coerce religion
or irreligion on students.
The parents here seek modest relief. They do not
demand that a school change its curriculum; they
merely request notice and the ability to opt-out of certain religiously intolerable lessons. The Establishment Clause allows the “adjustment of [students’]
schedules to accommodate the religious needs of the
people.” Zorach v. Clauson, 343 U.S. 306, 315 (1952).
And the First Amendment can require schools to opt
students out from specific activities objectionable to
2
their religion—even the Pledge of Allegiance. See Barnette v. West Virginia, 319 U.S. 624 (1943). This allows students of very different religious beliefs to participate in America’s public school system.
The opinion below disrupts the balance.
It greatly expands the internal affairs doctrine, under which the Government, when dealing with its own
internal affairs, need not “behave in ways that the individual believes will further his or her spiritual development.” Bowen v. Roy, 476 U.S. 693, 699 (1986).
The panel opinion considers elementary school instruction a governmental internal affair beyond the
scope of the Free Exercise Clause. But public school
instruction is not an internal government affair; it is
how the state directly instills information, values, and
beliefs to its citizens.
The result of the panel’s decision is to banish families of certain faiths from the nation’s public schools.
Amici—Muslim parents and faith leaders—believe in
an obligation to raise their children in accordance
with divine commands. The objectionable classroom
instruction makes that impossible. Parents are thus
“put to a choice between fidelity to religious belief” or
receiving the free public education offered to all other
citizens. That dilemma is a well-established burden
under this Court’s precedent. See Thomas v. Review
Bd. of Indiana, 450 U.S. 707, 717 (1981).
Amici have witnessed the impact this burden has
placed on Muslim families. Private Islamic schools experience lengthy waitlists that they attribute directly
to moral standards in public schools. Parents who can
afford it may even send their children abroad.
The result of certain faiths fleeing our public
3
schools is a forced homogeneity, where our schools no
longer reflect the religious pluralism of American society. Accommodations that make space for families
of all religious beliefs in public schools ensure that
government cannot foist “unanimity of religious opinion on everyone.” Steven T. Collis, Public Employees
as a Reflection of a Religiously Diverse Culture, 99
NOTRE DAME L. REV. REFLECTION 229, 239 (2024).
The outcome below is bad for society and unmoored
from the constitutional text. The panel opinion applied the so-called “substantial burden” test, a relative of the internal affairs doctrine, articulated in
Lyng v. Northwest Indian Cemetery Protective Ass’n,
485 U.S. 439 (1988). That opinion reasoned from the
premise that “the crucial word in the constitutional
text is ‘prohibit’” to the conclusion that the Free Exercise Clause does not protect government actions that
might “make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs.” Id.
at 450–51.
Lyng did not purport to ground itself in the original
public meaning of the Free Exercise Clause. If it had,
it would have acknowledged that “prohibit” at the
founding, as now, meant not only “to forbid” but also
“to hinder.” See, e.g. 2 SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE (1755).
This Court has never reaffirmed Lyng’s restrictive
“substantial burden” rule. The decision is hard to
square with subsequent developments. See, e.g., Trinity Lutheran v. Comer, 582 U.S. 449, 450 (2017).
Meanwhile, it confuses lower courts, in the First
Amendment context and beyond. See, e.g., Priests For
4
Life v. HHS, 772 F.3d 229, 246 (D.C. Cir. 2014) (applying Lyng to hold there was no substantial burden
in ACA contraception mandate), vacated and remanded sub nom. Zubik v. Burwell, 578 U.S. 403
(2016).
The restrictive “substantial burden” standard laid
out in Lyng and applied below has become a constitutional outlier. This Court should take the opportunity
to clarify, if not overrule, that mistaken doctrine and
reaffirm that government action substantially burdens religious exercise when it forbids or hinders it. If
left unchecked, Lyng’s substantial burden test, like
the internal affairs doctrine, threatens to swallow the
Free Exercise Clause in public schools.
5
ARGUMENT
I. The Fourth Circuit’s opinion disrupts the
careful balance the law strikes regarding religion in public schools.
Since the 1940’s, commentators protective of antiestablishment interests have worried that free exercise rights would swallow the Establishment Clause.
Commentators protective of free exercise have
stressed about the opposite. This Court’s decisions
and related laws, meanwhile, have struck a careful
balance between both antiestablishment and free exercise rights in public schools.
Whatever disagreements justices and academics
have had about the scope of each clause, one principle
has remained clear: just as public schools may not coerce religion upon students, so also they may not coerce irreligion upon students.
The Establishment Clause, the Free Exercise
Clause, the Free Speech Clause, and the Equal Access
Act have helped achieve that balance. The Establishment Clause limits how much teachers and administrators may coerce religion onto students. See, e.g.,
Engel v. Vitale, 370 U.S. 421 (1962); Edwards v.
Aguillard, 482 U.S. 578 (1987); Lee v. Weisman, 505
U.S. 577 (1992); Kennedy v. Bremerton Sch. Dist., 597
U.S. 507 (2022). The Free Exercise and Speech
Clauses and the Equal Access Act ensure that students and their families maintain a robust right to exercise their religion while at school. See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972); Widmar v. Vincent,
454 U.S. 263 (1981); West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943); 20 U.S.C.
§§ 4071–74 (ensuring equal access for religious
6
groups in secondary schools).
That careful balance is what keeps public schools
from becoming churches, on the one hand, or antireligious Temples of Reason, on the other. The Fourth
Circuit’s decision, if allowed to stand, would disrupt
the equilibrium.
A. The law protects, and the Establishment
Clause does not forbid, students’ religious
exercise in public schools.
Since Everson v. Board of Education, the Establishment Clause has limited how much public school employees may coerce religion upon students. See, e.g.,
McCollum v. Bd. of Educ., 333 U.S. 203 (1948) (allowing religious teachings from private religious groups
at public schools during instructional hours violated
the Establishment Clause); Abington Sch. Dist. v.
Schempp, 374 U.S. 203 (1963) (beginning the school
day with Bible reading violated the Establishment
Clause); Lee, 505 U.S. 577 (inviting clergy to pray at
public school graduations violates the Establishment
Clause). That limitation, however, never resulted in
excising religion from public schools. The Free Exercise and Speech Clauses and, later, the Equal Access
Act in secondary schools have counterweighed Establishment Clause limitations with the right of students
to bring their own religious exercise and identities
into the school atmosphere.
1. The Free Exercise and Speech Clauses
and the Equal Access Act protect students’ religious exercise and expression even when in school.
Our constitutional order ensures public schools do
7
not become places of irreligious indoctrination by protecting the right of students, their families, and even
employees acting in their private capacity to exercise
their religion while inside the schoolhouse gates.
This Court has long noted that neither students nor
teachers shed their constitutional rights when entering public schools. Tinker v. Des Moines Indep. Cnty.
Sch. Dist., 393 U.S. 503, 506 (1969). Public employees
privately exercising their religion may do so. Kennedy, 597 U.S. at 542 (2022). Students may also engage in religious exercise on campus, including religious speech. See Bd. of Educ. v. Mergens, 496 U.S.
226, 251 (1990) (although possibility of student peer
pressure exists in student-only religious meetings,
“there is little if any risk of official state endorsement
or coercion where no formal classroom activities are
involved and no school officials actively participate”).
And the Equal Access Act, 20 U.S.C. §§ 4071–74, ensures that students in secondary schools may form religious clubs on equal terms with other extracurricular groups. See Mergens, 496 U.S. at 248–49 (upholding the Equal Access Act against Establishment
Clause challenges).
This protection extends to many student-led activities that take place on school grounds. Distribution of
religious materials, prayer, proselytization, creation
of religious clubs, religious meetings outside of instructional time, wearing of religious garb, conversions, scripture study—all receive protection. See,
e.g., Morgan v. Swanson, 659 F.3d 359, 382 (5th Cir.
2011) (en banc) (prohibiting student’s distribution of
religious pencils to classmates violates the First
Amendment); Donovan v. Punxsutawney Area Sch.
Bd., 336 F.3d 211, 277 (3d Cir. 2003) (prohibiting a
8
Bible club from meeting during noninstructional time
violates the Equal Access Act and First Amendment);
Prince v. Jacoby, 303 F.3d 1074, 1094 (9th Cir. 2002)
(refusing to allow a Bible club the same benefits as
other student clubs violates the First Amendment
and Equal Access Act).
Religious groups may not be treated worse because
they are religious, both in elementary and secondary
schools. Good News Club v. Milford Cent. Sch., 533
U.S. 98, 102 (2001) (excluding a Christian club from
elementary school facilities provided to secular
groups violated the First Amendment); Equal Access
Act, 20 U.S.C. § 4071 (“It shall be unlawful for any
public secondary school . . . to deny equal access or a
fair opportunity to, or discriminate against any students who wish to conduct a meeting within that limited open forum on the basis of the religious . . . content of the speech at such meetings.”). But students
also enjoy robust rights irrespective of how schools
treat others. See, e.g., Barnette, 319 U.S. at 642 (allowing students to forgo the pledge of allegiance for
religious reasons).
All of this has led to an outcome that is both sensible and consistent with constitutional text: religion
may enter public schools, but it does so through private actors who are reflective of this country’s diverse
religious population. This right enriches the school
environment and the broader community, by weaving
America’s many religious traditions into the fabric of
campus life.
The Court’s cases have been careful to ensure that
students of all faiths feel welcome in public schools.
9
Consider Zorach v. Clauson, 343 U.S. 306 (1952). Taxpayers challenged New York City’s program, which
permitted “public schools to release students during
the school day so that they may leave the . . . school
grounds and go to religious centers for religious instruction or devotional exercises.” Id. at 308. Children
were released to receive religious instruction at these
religious centers upon the “written requests of [their]
parents.” Id. Students whose parents did not release
them for religious instruction did not leave the classroom. Id. The Supreme Court ruled that the program
did not violate the Establishment Clause, as the “public schools do no more than accommodate their schedules to a program of outside religious instruction.” Id.
at 315. The case boiled down to allowing “adjustment
of [students’] schedules to accommodate the religious
needs of the people.” Id. That outcome allowed religious students to attend public schools without sacrificing their religious duties and identities. It ensured
that students were still able to bring a variety of religions into the schools even as government actors were
limited in doing so.
Or consider Barnette, which ensured that Jehovah’s
Witnesses could bring their distinctive religious identities into public schools. 319 U.S. at 642. Schools
made the choice to require all students to recite the
Pledge of Allegiance at the beginning of each school
day. Id. at 629. This Court ruled that the First
Amendment required the schools to allow Jehovah’s
Witnesses, who could pledge allegiance only to God,
to opt out without punishment. Id. at 642.
The accommodating model of Zorach and Barnette
is a mirror-image contrast to the uncooperative approach of Montgomery public schools. Similar to the
10
parents of the students in Zorach and Barnette, the
parents of the students in this case seek the option to
remove their children from the classroom while teachers push ideas that contradict their religious beliefs.
In Zorach, Barnette, and here, religious families ask
for accommodation for their religious beliefs at no cost
to students of other (or no) faiths. See Zorach, 343
U.S. at 309–10; Barnette, 319 U.S. at 627–28. As in
Zorach and Barnette, the opt-out option and a notice
requirement for parents would not cost taxpayers any
additional money, nor would it provide preferential
treatment to one religion over another. See Zorach,
343 U.S. at 314; Barnette, 319 U.S. at 639–42.
Instead, like the program in Zorach, it would enable parents to take advantage of the benefit of public
schools without sacrificing their families’ religious
identities. This has long been the textual command of
both the religion clauses and the Equal Access Act.
2. The Establishment Clause does not
prevent students from engaging in religious exercise in school.
Allowing private religious exercise—both by students and staff—to enrich the school environment
does not violate the Establishment Clause. The Court
recently clarified this in Kennedy v. Bremerton. The
Court held that teachers or coaches privately exercising their religion does not violate the Establishment
Clause unless they coerce students to join them. Kennedy, 597 U.S. at 541.
Student religious expression is even less likely to
create an Establishment Clause concern. The Clause
has never “‘compel[led] the government to purge from
11
the public sphere all that in any way partakes of
religi[on].” Van Orden v. Perry, 545 U.S. 677, 699
(2005). Yet time and again, schools censor such activity, under the mistaken impression that the Establishment Clause requires it. See, e.g., Rosenberger v.
Rector, 515 U.S. 819, 845 (university believed, improperly, that the Establishment Clause required not
funding a Christian student publication); Good News
Club, 533 U.S. at 102 (school prohibited religious
group from using the school’s facilities to avoid incorrectly perceived Establishment Clause violation);
Widmar v. Vincent, 454 U.S. 263, 274 (1981) (holding
that the Establishment Clause does not bar “the extension of general benefits to religious groups”).
That is not, nor has it ever been, what the Establishment Clause requires.
B. The Fourth Circuit’s application of the internal affairs doctrine destroys the balance in public schools by discouraging religious families from attending.
1. The Fourth Circuit improperly applied
and expanded the internal affairs doctrine.
The internal affairs doctrine provides that the First
Amendment does not require the Government, when
dealing with its own internal affairs, “to behave in
ways that the individual believes will further his or
her spiritual development.” Bowen v. Roy, 476 U.S.
693, 699 (1986). In Bowen, that meant allowing the
government to assign and use social security numbers
even for those who objected on religious grounds. Id.
at 711–12.
12
The Fourth Circuit greatly expanded the internal
affairs doctrine to government action that is targeted
at, and directly affects, the conduct of students. Under
the panel’s logic, claims for notice and opt-outs of certain school instruction “tend to fall outside the scope
of the Free Exercise Clause because they seek to ‘require the Government to conduct its own internal affairs’—here, public school curriculum choices—‘in
ways that comport with the religious beliefs of particular citizens.” Mahmoud v. McKnight, 102 F.4th 191,
212 (4th Cir. 2024) (quoting Bowen, 476 U.S. at 699).
Yet even in Bowen, five Justices distinguished the
government’s use of the plaintiff’s SSN from the government requiring the plaintiff to use it. See Bowen,
476 U.S. at 728 (1986) (O’Connor, J., concurring in
part and dissenting in part) (concluding that compelling someone to use a social security number is a burden on religious exercise).
The reasoning below is flawed and dangerous. It is
flawed because it mischaracterizes what the Plaintiffs
have asked. The Plaintiffs here are not trying to use
a free exercise challenge to change school curricula;
they are asserting that government forcing their children to sit through certain lessons without notice to
the parents and without an opportunity to opt out
burdens their religious exercise.
And that leads to the danger. Characterizing a parental request to remove students from a classroom
when their religious exercise is burdened as affecting
the internal affairs of the school would expand the internal affairs doctrine to cover almost everything that
happens in a public school classroom. It would upend
13
nearly a century of established law, starting with
West Virginia v. Barnette, arguably the foundational
case allowing religious diversity in public schools. The
Jehovah’s Witnesses who wanted to opt out of the
Pledge of Allegiance would lose, because, according to
the Fourth Circuit, it is the school’s internal affair to
decide whether or not students participate in the
Pledge.
This radical expansion of the internal affairs doctrine misstates Bowen. In Bowen, the plaintiffs challenged the government assigning and using a social
security number for an individual. Bowen, 476 U.S. at
695. They argued that, according to their religion,
government creating a social security number for
their daughter would rob her spirit by removing the
uniqueness of her person. Id. at 696. There was no direct, observable effect on the plaintiff from the government action; everything was internal to the government.
In contrast, classroom instruction directly affects
students. That is the whole point. Extending Bowen
to this situation would fundamentally alter the Free
Exercise Clause’s application in public schools and
permit almost everything in the classroom to evade
constitutional scrutiny. Public school instruction is
not an internal government affair; it is how the state
directly instills information, values, and beliefs to its
citizens.
Applying the internal affairs doctrine in this context upsets both antiestablishment and free exercise
rights. If essentially everything in the classroom is an
internal affair, then there can be no religious claims
14
made against any instruction. Instead of the Establishment Clause searching for public, coercive speech
and the Free Exercise Clause ensuring students have
the right to express their religion on campus, the internal affairs doctrine cuts through that balance and
places all public classroom instruction beyond constitutional restraints.
This does more than disrupt the balance between
antiestablishment and free exercise rights; it obliterates both.
2. Applying the internal affairs doctrine
to public school instruction will drive
people of certain religions out of public
schools.
Students are largely the means for ensuring public
schools are a reflection of our religiously diverse culture. They do that by bringing their religious identities, practices, and beliefs with them to school. For
some, that is only possible if they can opt out of certain activities and lessons.
Jehovah’s Witnesses must be able to opt out of the
Pledge of Allegiance. Barnette, 319 U.S. at 629. Some
Amish must be able to opt their children out of public
schools after a certain age. Yoder, 406 U.S. at 218.
Latter-day Saints, Jews, and others often request opting their children out of some instructional time for
release-time programs. Zorach, 343 U.S. at 683.
By refusing to allow such opt outs, the Fourth Circuit’s rule ensures people of certain faiths will take
one of two steps. Those with the financial means will
remove their children from public schools and move
them into private schools. See, e.g., DAVID O’BRIEN,
PUBLIC CATHOLICISM 44–45 (1989) (explaining that
15
Catholics began their own schools in response to public schools requiring readings from certain versions of
the Bible); JOHN MCGREEVY, CATHOLICISM AND AMERICAN FREEDOM: A HISTORY 42 (2003) (describing Catholics’ desire to start their own schools to avoid hostility in public schools). Those children who cannot afford to attend private schools will instead bury their
religious identities.
Many of the amici signed onto this brief have faced
and witnessed this exact dilemma. In Austin, Texas,
one private Muslim school has seen a recent surge in
demand caused by public school instruction. “[M]ore
and more Muslim parents are growing concerned with
the shifting moral standards in public schools and
this is leading them to seek for safer environments for
their children. These…forces have driven demand for
Islamic education so high, that we are at a point where
we have 200+ students on our school’s waiting list!”2
Some Muslim families are forced to educate their
children abroad, fearing the coercive environment of
public schools.3 Amici have also witnessed the strain
“being put to the choice” places on families, with divorces resulting from the agonizing decision over
whether to subject a family’s children to objectionable
content. As a whole, no opportunity for notice and optout undermines many Muslim families’ trust in public
2 Renaissance Academy, FAQ, 19-Acre Campus: Shaping a
Brighter Future Together, https://racademy.org/newcampus/
(last visited March 4, 2025).
3 See J. MARK HALSTEAD, ISLAMIC EDUCATION IN THE WEST AND
ITS CHALLENGES 262 in Handbook of Contemporary Islam and
Muslim Lives (Lukens-Bull and Woodward, eds. 2021) (“As a
last resort, some Muslim parents send their children abroad for
education, often to Pakistan . . . .”).
16
education.
The result will be schools in which the rich religious
diversity of the United States is absent. Left behind
will be a cold and empty caricature of our culture, one
in which many religions are unseen and those that are
present are homogeneous in their beliefs.
That outcome has no basis in the text of the Constitution or in the Equal Access Act.
C. Driving religious families from public
schools fails to prepare all students to live
in our religiously diverse society.
One of the goals of the states’ public education systems is to train students to participate in a pluralistic
democracy. The balance between free exercise and antiestablishment rights in public schools serves that
end. By ensuring religion—the diverse beliefs and
nonbeliefs of all students—has a healthy presence in
public schools, those institutions prepare students to
enter the most religiously diverse society on earth.
The Court emphasized this point in Kennedy when
it confirmed that public employees need not shed
their religious identities in their places of employment:
Naturally, Mr. Kennedy’s proposal to pray
quietly by himself on the field would have
meant some people would have seen his religious exercise. Those close at hand might have
heard him too. But learning how to tolerate
speech or prayer of all kinds is part of learning
how to live in a pluralistic society, a trait of
character essential to a tolerant citizenry.
17
597 U.S. at 538 (citations and quotations omitted).
Allowing religious families a place in public schools
ensures government cannot foist “unanimity of religious opinion on everyone,” even in public institutions. Steven T. Collis, Public Employees as a Reflection of a Religiously Diverse Culture, 99 Nᴏᴛʀᴇ Dᴀᴍᴇ
L. Rᴇᴠ. Rᴇғʟᴇᴄᴛɪᴏɴ 229, 239 (2024). Exposing children
in public schools to religious beliefs that may be different from their own encourages mutual respect and
tolerance in our pluralistic society. Id. at 238.
The “Religion Clauses are grounded in [this] principle of pluralism.” Id. at 238. At the founding, advocates of the clauses included “the most ardent and enthusiastic religionists at the time”; however, instead
of wanting “government entanglement with religion
… they wanted no one to interfere” with their religious practices. Id. at 239.
They envisioned “a world in which all of them could
live alongside one another in peace.” Id. The Religion
Clauses and the Equal Access Act have helped turn
their vision of the future into reality. In a society as
religiously diverse as ours, the balance they bring ensures students are exposed early to almost every religious belief and tradition in their community. This
happens as students and their families bring their religions with them into public schools and the government actors in those schools remain as neutral as possible about all those religious beliefs and identities.
The Fourth Circuit’s doctrine would annihilate that
benefit of a public education by forcing particular
faiths out of the public schools.
18
II. The substantial burden test stated in Lyng
and applied by the panel is atextual and at
odds with the original public meaning of the
Free Exercise Clause.
Banishing particular faiths from our public schools
is not only harmful to our civil society. It is also wrong
on the law.
As explained above, the panel opinion erred by applying the internal affairs doctrine to public school instruction. It also erred by relying on another mistake
that emerged from a false understanding of the internal affairs doctrine: the so-called substantial burden
test as articulated in Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988).
That test is at odds with the original public meaning of the Free Exercise Clause and was wrong the
day it was decided. This court should take the opportunity to overrule, or at least clarify, that government
action “substantially burdens” religious exercise
when it “forbids it by law” or “hinders” it.
A. The Free Exercise Clause is implicated
when government “forbids by law” or
“hinders” the free exercise of religion.
1. Lyng’s substantial burden test does not
even purport to accord with the original public meaning of the Free Exercise
Clause.
The substantial burden test has had a number of
permutations since the 1960s, when the idea was first
explored.4 But the doctrine severely strayed from the
4 While not explicitly set forth in Sherbert v. Verner, that case
19
constitutional text in Lyng. There, the Court considered whether the Free Exercise Clause prevented the
government from constructing a road and harvesting
timber from a portion of land that was used by Indigenous tribes for religious purposes. Id. at 441–42. The
Court concluded that even though the Indigenous
tribe’s members were sincere in their religious beliefs
and the project would make the practice of these beliefs impossible, the government was still not prevented from constructing the road and harvesting
timber. Id. at 447.
This Court reasoned that because the plaintiffs
were neither “coerced by the Government[] ... into violating their religious beliefs[] nor would ... [they be]
penalize[d] [for their] religious activity,” they were
not burdened by the government action. Id. at 449.
The Court’s rationale focused on the word “prohibit”
in the Free Exercise Clause: “The crucial word in the
constitutional text is ‘prohibit’[.]” Id. at 451. This
means, the Court reasoned, that the Free Exercise
Clause “does not … require government to bring forward a compelling justification for … actions” that
laid the groundwork for what would come to be known as the
substantial burden test. 374 U.S. 398, 405–06 (1963); see Eric
H. Wang, To Prohibit Free Exercise: A Proposal for Judging
Substantial Burdens on Religion, 72 EMORY L.J. 723, 729–36
(2023) (tracing the history of the substantial burden test from
Sherbert on); Fulton v. Philadelphia, 593 U.S. 522, 556 (2021)
(Alito, J., concurring in the judgment) (“The test distilled from
Sherbert—that a law that imposes a substantial burden on the
exercise of religion must be narrowly tailored to serve a compelling interest—was the governing rule for the next 27 years.”).
20
might “make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs.” Id.
at 450–51.
The Court concluded that as long as government
conduct did not have a “tendency to coerce individuals
into acting contrary to their religious beliefs,” or to
“penal[ize]” its free exercise, or to “deny[] any person
an equal share of the rights, benefits, and privileges
enjoyed by other citizens[,]” then the conduct could
not violate the Free Exercise Clause. Id. at 449–50. Of
course, if “prohibit” is the crucial word, the last category would seem to fit more aptly with the Equal Protection Clause than the right to free exercise of religion. The Lyng Court never acknowledged this logical
inconsistency.
In any event, lower courts have understood this requirement as the ‘substantial burden’ test. See, e.g.,
Apache Stronghold v. United States, 101 F.4th 1036,
1051–52 (9th Cir. 2024) (citing Lyng). Purporting to
ground itself in the word “prohibit,” this cramped
reading of the text helped contort the meaning of the
Free Exercise Clause.
The Court’s conclusion in Lyng does not purport to
come from the original public meaning of the Free Exercise Clause. It does not grapple with any founding
era evidence on the topic. See, e.g., Michael W.
McConnell, The Origins and Historical Understanding of Free Exercise of Religion, HARV. L. REV. 1409,
1486 (1990). It merely asserts that “prohibit” is the
key word in the Free Exercise Clause, then proceeds
21
to exclude one of the dictionary definitions of the
term.
Courts that have endeavored to interpret the plain
meaning of the text have come out differently. In statutory federal and state RFRA cases, judges relying on
the plain dictionary meaning of the phrase “substantially burden” have reached a broader understanding
of the term than Lyng. See, e.g., Barr v. City of Sinton,
295 S.W.3d 287, 301–02 (Tex. 2009) (using Webster’s
Third New International Dictionary to interpret “substantially burden” in state RFRA); Apache Stronghold, 101 F.4th at 1136 (Murguia, J., dissenting) (using Webster’s Third New International Dictionary,
Black’s Law Dictionary, and the Oxford English Dictionary to interpret “substantially burden” in federal
RFRA). This plain meaning approach also accords
with the original public meaning of the term “prohibit,” by including the broader idea of “hindering”
conduct.
2. The Original Public Meaning of “Prohibit” Includes “Hinder.”
Founding-era dictionaries define “prohibit” to mean
“forbid” by law. See, e.g., NATHAN BAILEY, UNIVERSAL
ETYMOLOGICAL ENGLISH DICTIONARY (22d ed. 1770)
(defining “prohibit” as “to forbid, to bar, to keep
from”). Lyng did recognize this meaning—but “prohibit” has also long carried a broader sense: to “hinder.”
Dr. Samuel Johnson’s Dictionary of the English
Language defined “to prohibit” as: (1) “to forbid; to interdict by authority,” and (2) “to debar; to hinder.” 2
SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH
22
LANGUAGE (1755). So did other founding-era dictionaries. See, e.g., THOMAS DYCHE & WILLIAM PARDON, A
NEW GENERAL ENGLISH DICTIONARY (14th ed. 1771)
(“to forbid, bar, hinder, or keep from any thing”); 2
JOHNSON (6th ed. 1785) (“1. To forbid, to interdict by
authority. . . . 2. To debar; to hinder”); 2 JOHN ASH,
THE NEW & COMPLETE DICTIONARY OF THE ENGLISH
LANGUAGE (2d ed. 1795) (“To forbid, to interdict by authority; to debar, to hinder”); 2 NOAH WEBSTER, AN
AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE
(1828) (“1. To forbid; to interdict by authority; . . . 2.
To hinder; to debar; to prevent; to preclude”); 2 JOHN
BOAG, THE IMPERIAL LEXICON OF THE ENGLISH LANGUAGE 275 (1850) (“To forbid; to interdict by authority. To hinder; to debar; to prevent; to preclude”). See
generally Fulton v. City of Philadelphia, 593 U.S. 522,
566 (2021) (Alito, J. concurring in the judgment) (discussing the original public meaning of the term “prohibiting”).
This broader sense of prohibit as “to hinder” was a
familiar English usage. In Paradise Lost, the gates of
Hell “prohibit” egress in this second sense:
[L]ong is the way
And hard, that out of Hell leads up to light;
Our prison strong, this huge convex of fire,
Outrageous to devour, immures us round
Ninefold, and gates of burning adamant
Barred over us, prohibit all egress.
JOHN MILTON, PARADISE LOST, 35 (John Leonard, ed.,
Penguin Classics 2003) (1667).
Three Justices of this Court relied on founding-era
dictionaries to conclude that to “prohibit” free exercise
23
includes government acts that “hinder” religious practice. Fulton, 593 U.S. at 566. While that case was concerned with Employment Division v. Smith, 494 U.S.
872 (1990), the same ordinary meaning of “prohibit”
applies to the issue surrounding Lyng’s use of the
term. Id. The Free Exercise Clause was historically
understood to prevent government actions that substantially interfered with religious observance, even
if those actions did not directly compel or coerce belief.
Fulton, 593 U.S. at 567 (Alito, J., concurring in the
judgment). Simply put, “the ordinary meaning of ‘prohibiting the free exercise of religion’ was (and still is)
forbidding or hindering unrestrained religious practices or worship.” Id.
This broader understanding of “prohibit” does not
require the Court to resolve the question of strict scrutiny versus rational basis review. Cf. Fulton, 593 U.S.
at 543–44 (Barrett, J. concurring) (expressing concerns about analyzing Free Exercise claims should
Smith be overruled). Confirming that the right is implicated is a more modest step. It ensures that courts
properly assess the burden on religious exercise instead of prematurely narrowing the Clause’s scope.
The Free Exercise Clause forbids government action that “prohibits the free exercise” of religion. U.S.
CONST. amend. I. That includes express bans and actions that hinder religious practice. Lyng erred by
failing to account for this broader, historically supported meaning of “prohibit.” Cf. Yellowbear v. Lampert, 741 F.3d 48, 55 (10th Cir. 2014) (Gorsuch, J.)
(“[A] burden on a religious exercise rises to the level
of being “substantial” when (at the very least) the government (1) requires the plaintiff to participate in an
24
activity prohibited by a sincerely held religious belief,
(2) prevents the plaintiff from participating in an activity motivated by a sincerely held religious belief, or
(3) places considerable pressure on the plaintiff to violate a sincerely held religious belief—for example, by
presenting an illusory or Hobson’s choice where the
only realistically possible course of action available to
the plaintiff trenches on sincere religious exercise.”).
3. The Panel Opinion Misconstrues the
Free Exercise Clause and the Original
Public Meaning of “Prohibit.”
The panel opinion’s application of Lyng improperly
narrows the Free Exercise Clause’s protections in
public schools. Relying on Thomas v. Review Board, it
held:
To recap briefly, to show a cognizable burden,
the Parents must show that the absence of an
opt-out opportunity coerces them or their children to believe or act contrary to their religious
views. This coercion can be both direct or indirect, meaning that a burden exists whenever
government conduct either “compel[s] a violation of conscience” or “put[s] substantial pressure on an adherent to modify his behavior
and to violate his beliefs.”
Mahmoud, 102 F.4th, at 208 (quoting Thomas v. Rev.
Bd. of Ind. Emp. Sec. Div., 450 U.S. 707, 717–18
(1981)).
Although the panel quoted the right language from
Thomas, it misunderstood it. The Thomas court did
not hold that “substantial pressure” is a burden only
when it results in an actual renunciation of faith.
25
Thomas, 450 U.S. at 718; contra Mahmoud, 102 F.4th
at 209 (faulting evidentiary record because it did not
show “that the Parents or their children have in fact
been asked to affirm views contrary to their own
views on gender or sexuality”). Thomas does not require outright compulsion. Thomas, 450 U.S. at 718.
Instead, it acknowledges that governmental actions
that put “substantial pressure on an adherent to modify his behavior and to violate his beliefs” impose a
burden upon religion. Id. But the panel opinion reduces substantial pressure to government acts that
actually compel believers. By focusing solely on acts
of coercion, the panel reads Thomas too narrowly and
disregards the broader protections the Free Exercise
Clause provides.
In this way, the panel misinterprets the original
meaning of “prohibit” and weakens the crucial constitutional protections granted by the First Amendment.
Lyng’s substantial burden test, as applied here, misreads the Free Exercise Clause’s text and the history
that shows the meaning of “prohibit” includes “hinder.” An appropriate inquiry centers on whether government actions, direct or indirect, hinder religious
exercise. Because that interpretation is consistent
with the original public meaning of the word “prohibit,” this Court should confirm it is the inquiry in
which lower courts must engage.
B. This Court has not applied Lyng’s substantial burden rule since it was decided,
while other cases from this Court have undermined it.
Given how far Lyng strayed from the original public
meaning of the Free Exercise Clause, it is not surprising that this Court, for many decades, has not treated
26
it as influential precedent.
Stare decisis, “the idea that today’s Court should
stand by yesterday’s decisions—is “a foundation stone
of the rule of law.” Kimble v. Marvel Ent., LLC, 576
U.S. 446, 455 (2015) (quoting Michigan v. Bay Mills
Indian Community, 572 U.S. 782, 798 (2014)). But
stare decisis “is at its weakest when we interpret the
Constitution . . . And stare decisis applies with perhaps least force of all to decisions that wrongly denied
First Amendment rights: This Court has not hesitated
to overrule decisions offensive to the First Amendment (a fixed star in our constitutional constellation,
if there is one).” Janus v. Am. Fed’n of State, Cnty.,
585 U.S. 878, 917 (2018). (emphasis added).
In Janus, this Court looked to five important factors for overruling a past decision, including: “the
quality of [the case’s] reasoning, the workability of the
rule it established, its consistency with other related
decisions, developments since the decision was
handed down, and reliance on the decision.” Id. As explained supra II.A.1–2, Lyng is poorly reasoned and
unmoored from the original public meaning of the
text. The other Janus factors also tip against Lyng
and in favor of the Free Exercise clause’s original public meaning.
1. Lyng’s inconsistency with related decisions.
While Lyng looks to direct or “indirect coercion or penalties on the free exercise of religion” it does not quantify the amount of penalty required to burden one’s
religion. Lyng, 485 U.S. at 450. This is somewhat bizarre for a test premised on the burden being “substantial.”
27
And it ignores this Court’s holding that government burdened an Amish family’s free exercise of religion by fining them merely $5 when they declined to
send their children to public school beyond the eighth
grade in accordance with their Amish values. Yoder,
406 U.S. at 234. If even a penalty of $5 can be considered a substantial burden, surely Parents faced with
paying hundreds of dollars in fines and fees for their
child being disciplined for truancy violations or
spending thousands of dollars for having to switch to
private school would be enough. Id.; see Appellants’
Reply Brief at 1, Mahmoud v. McKnight, 102 F.4th 191
(4th Cir. 2024) (No. 23-1890) 2023 WL 7326987 (asserting that “forcing children—on threat of criminal
fines or cost of private education—to participate in instruction against their faith . . . violates every relevant Supreme Court ruling.”).
2. Lyng’s unworkability. This Court has consistently held that denial of a public benefit is a burden
on religious exercise, yet Lyng’s atextual approach
would reject that conclusion. As stated supra, Lyng
held narrowly, “[t]he crucial word in the constitutional text is ‘prohibit.’” Lyng, 485 U.S. at 451. It then
concluded that government programs “which may
make it more difficult to practice certain religions but
which have no tendency to coerce individuals into acting contrary to their religious beliefs” do not burden
religion. Id. at 450.
If that is the holding of Lyng, it would undermine
all of the Court’s recent decisions in Carson v. Makin,
596 U.S. 767 (2022); Espinoza v. Montana Depart28
ment of Revenue, 591 U.S. 464 (2020); and Trinity Lutheran v. Comer, 582 U.S. 449, 450 (2017). In each,
the Court found that discriminating against religious
institutions in funding burdens religion. Yet under
Lyng’s formulation, because the discrimination in
funding did not coerce a change in behavior, no burden would exist.
Such an outcome is unworkable because it would
undermine the vast majority of religious accommodations cases.
3. There is little to no doctrinal reliance on
Lyng. This Court has not imported Lyng’s substantial
burden test to Congress’s core religious freedom statutes, the Religious Freedom Restoration Act (“RFRA”)
and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”).
In 1993, in response to Smith, Congress passed
RFRA, which provides that “[g]overnment shall not
substantially burden a person's exercise of religion.”
42 U.S.C. § 2000bb–1 (emphasis added). Later, in
2000, Congress passed RLUIPA, providing, “No government shall impose a substantial burden on the religious exercise of a person” in both land use and
prison contexts. 42 U.S.C. § 2000cc–1 (emphasis
added).
Both statutes expanded religious liberty protections after Smith. See Holt v. Hobbs, 574 U.S. 352, 358
(2015) (interpreting RLUIPA as “expansive protection
for religious liberty” since “Congress defined ‘religious
exercise’ capaciously to include ‘any exercise of reli-
29
gion, whether or not compelled by, or central to, a system of religious belief.’”); Burwell v. Hobby Lobby
Stores, Inc., 573 U.S. 682, 682 (2014) (holding that “as
amended by . . . [RLUIPA], RFRA covers ‘any exercise
of religion, whether or not compelled by, or central to,
a system of religious belief.’”).
Although both statutes include “substantial burden” language, they do not define it. 42 U.S.C.
§ 2000bb-2; 42 U.S.C. § 2000cc-5. Yet this Court has
declined to adopt Lyng’s interpretation of the phrase
despite ample opportunity to do so.
To the extent lower courts have imported Lyng, it
has caused doctrinal error and confusion. For instance, multiple courts of appeals applied Lyng to
post-Hobby Lobby challenges to the Affordable Care
Act’s contraception mandate, holding there was no
substantial burden on religious objectors. See, e.g.
Priests For Life v. U.S. Dep’t of Health & Human Services, 772 F.3d 229, 246 (D.C. Cir. 2014) (applying
Lyng); Geneva Coll. v. Sec’y U.S. Dep’t of Health &
Human Services, 778 F.3d 422, 442 (3d Cir. 2015) (applying Lyng); E. Tex. Baptist Univ. v. Burwell, 793
F.3d 449, 457 (5th Cir. 2015) (applying Lyng). This
court ultimately granted, vacated and remanded
those cases. See Zubik v. Burwell, 578 U.S. 403 (2016).
If Lyng were overturned today, it would clarify the
law, not disrupt it.
4. Developments since Lyng undermine its reasoning. Lyng’s understanding of “substantial burden” does not cover many obvious substantial burdens
30
on religious exercise. For instance, this Court’s opinion in Tanzin v. Tanvir, 592 U.S. 43, 46 (2020), assumed a substantial burden when the government destroys religious property or desecrates a dead body.
See id. at 51 (citing Yang v. Sturner, 728 F.Supp. 845
(DRI 1990), opinion withdrawn 750 F.Supp. 558 (DRI
1990), involving the “autopsy of [a] son that violated
Hmong beliefs”); (also citing DeMarco v. Davis, 914
F.3d 383, 389 (5th Cir. 2019), involving the confiscation and destruction of a prisoner’s Bible).
In those cases, no one was pressured to “change
[his] views or act contrary to [his] faith,” yet the Court
still assumed religious exercise was burdened because government action hindered the exercise of religion. Contra Mahmoud, 102 F.4th at 213. These developments since Lyng recognize that more varied
and indirect burdens on religious exercise are possible
and occur in the real world.
In sum, Lyng is “an outlier among our First
Amendment cases.” Janus, 585 U.S. at 924. A better
interpretation of the Free Exercise Clause reads “prohibit” to include “hinder,” as understood in the original public meaning. Lyng, 485 U.S. at 450–51.
C. Even under Lyng’s faulty analysis, Parents have shown a substantial burden
here.
Even if this Court chooses not to discard Lyng, the
Parents have met their burden of proving a substantial burden on their religious exercise.
This case is governed by Yoder. The panel opinion’s
31
attempt to distinguish it rested on improper theological comparisons. “[W]e have warned that courts must
not presume to determine the place of a particular belief in a religion or the plausibility of a religious
claim.” Smith, 494 U.S. at 887. Courts must not
“[j]udg[e] the centrality of different religious practices.” Id. This is consistent with RFRA’s and
RLUIPA’s statutory scheme, which restored Yoder’s
compelling interest test. 42 U.S.C. § 2000bb(b)(1); 42
U.S.C. § 2000cc(a).
Yet the Fourth Circuit’s analysis of Yoder consisted
of a theological comparison of the Parents’ religious
beliefs with Amish beliefs. Mahmoud, 102 F.4th at
210. The panel opinion distinguishes Yoder on the basis that Amish faith is “singular” in its separation
from modern life, and so “few sects could make a similar showing.” Id. But the substantial burden analysis
does not involve measuring the theological centrality
of beliefs of different faiths; it involves analyzing the
detrimental effects the government places on those
who follow their faith. See Hobby Lobby, 573 U.S. at
720 (describing “economic consequences” if plaintiffs
failed to “engage in conduct that seriously violates
their religious beliefs”).
By grounding its opinion in theological importance,
instead of the real-world burdens that government action places on adherents, the Fourth Circuit’s decision
holds that the Amish’s religious values have more
constitutional value than Muslim, Roman Catholic,
and Ukrainian Orthodox beliefs.
But such theological judgments are “not within the
32
judicial function and judicial competence” in a country where “[c]ourts are not arbiters of scriptural interpretation.” Thomas, 450 U.S. at 716. The Parents’
“religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit
First Amendment protection.” Id. at 714. And they
certainly need not be compared to other religious traditions to determine their importance.
The Parents and amici are substantially burdened
because they are put to the choice of (1) remaining
true to their religion and forgoing their children’s benefit of attending public school or (2) abandoning their
religious beliefs and attaining the public benefit. This
is a classic example of a religious burden. See Sherbert
v. Verner, 374 U.S. 398, 404 (1963) (“Governmental
imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine
imposed against appellant for her Saturday worship.”).
It is true that in many situations society may require “some financial sacrifice in order to observe
their religious beliefs.” Mahmoud, 102 F.4th at 215
(quoting Braunfeld v. Brown, 366 U.S. 599, 605–06
(1961)). Yet the panel opinion fails to recognize that
being “put to a choice between fidelity to religious belief” or receiving a public benefit is itself a well-established religious burden. See Thomas, 450 U.S. at 717.
When the “State . . . expressly requires [a family]
to renounce its religious character to participate in an
otherwise generally available public benefit program,
for which [they are] fully qualified . . . [o]ur cases
33
make clear that such a condition imposes a penalty on
the free exercise of religion that must be subjected to
the ‘most rigorous’ scrutiny.” Trinity Lutheran, 582
U.S. at 466.
The Fourth Circuit contends that “the existing record does not show that mere exposure to the Storybooks is ‘affirmatively compel[ling]’ the Parents or
their children ‘to perform acts undeniably at odds
with’ their religious views.” Mahmoud, 102 F.4th at
211. But the act of sending their child to a school
where students are instructed in materials contrary
to their religious beliefs is “perform[ing] acts undeniably at odds with fundamental tenets of [parents’] religious beliefs.” Yoder, 406 U.S. at 218.
Parents’ religious exercise is substantially burdened when “governmental action penalize[s] [their]
religious activity by denying [them] an equal share of
the rights, benefits, and privileges enjoyed by other
citizens.” Lyng, 485 U.S. at 449. The substantial burden here is clear.
CONCLUSION
The Court should overturn the judgment below and
hold that refusing to allow parents to opt-out from certain instruction violates the Free Exercise Clause.
34
Respectfully submitted,
Steven T. Collis
Counsel of Record
John Greil
Law & Religion Clinic
University of Texas
School of Law
727 E. Dean Keeton St.
Austin, TX 78705
512-475-9090
Steven.Collis@law.utexas.edu
John.Greil@law.utexas.edu
March 10, 2025
35
APPENDIX
APPENDIX TABLE OF CONTENTS
Page
Further Identifying the Amici ............................
A-1
APPENDIX
Further Identifying the Amici
Amici include:
Dr. Ahmad Atif Ahmad, Professor of Religious
Studies at the University of California, Santa Barbara.
Ismail Elfath, parent at private Islamic school in
Austin, Texas.
Sheikh Atiyah Emarah, Senior Imam and Educator in Austin, Texas.
Imam Dawood Yasin, Imam of the Islamic Center
of Greater Austin.
Dr. Ahmed Arafat, Resident Scholar at the Mecca
Center of Willowbrook, Illinois.
A-1
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.