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

No. 24-297

In the

Supreme Court of the United States

TAMER MAHMOUD, et al.,

v.

Petitioners,

THOMAS W. TAYLOR, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

BRIEF OF THE STATE OF WEST VIRGINIA,

COMMONWEALTH OF VIRGINIA, AND 24

OTHER STATES AS AMICI CURIAE IN

SUPPORT OF PETITIONERS

JOHN B. MCCUSKEY

Attorney General

MICHAEL R. WILLIAMS

Solicitor General

Counsel of Record

DARIUS J. IRAJ*

Caldwell Fellow

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

(304) 558-2021

mwilliams@wvago.gov

JASON S. MIYARES

Attorney General

ERIKA L. MALEY

Solicitor General

KEVIN M. GALLAGHER

Princ. Dep. Solicitor General

MEREDITH BAKER

Assistant Solicitor General

202 North Ninth Street

Richmond, Virginia 23219

(804) 786-2071

emaley@oag.state.va.us

Counsel for Amici Curiae State of West Virginia &

Commonwealth of Virginia

(Additional Counsel listed on Signature Page)

i

TABLE OF CONTENTS

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

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

INTRODUCTION AND SUMMARY OF

ARGUMENT ...............................................................2

ARGUMENT ...............................................................3

I.

Laws authorizing students to opt out

of sex education protect essential

free-exercise and parental-autonomy rights .....3

II. Laws authorizing students to opt out of

sex education are longstanding,

widespread, and respectful of parental

rights and religious freedom............................ 12

III. Because of this nationwide history and

practice, the School Board cannot satisfy

strict scrutiny. .................................................. 15

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

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Abbo v. Briskin,

660 So. 2d 1157

(Fla. Dist. Ct. App. 1995) .................................... 9

In re Adoption of O.R.,

16 N.E.3d 965 (Ind. 2014) ................................. 14

Bellotti v. Baird,

443 U.S. 622 (1979) ............................................. 4

Bernal v. Fainter,

467 U.S. 216 (1984) ........................................... 18

Brown v. Entertainment Merchs. Ass’n,

564 U.S. 786 (2011) ......................................... 4, 5

Brown v. Woodland Joint Unified Sch.

Dist., 27 F.3d 1373 (9th Cir. 1994) ..................... 2

Cantwell v. Connecticut,

310 U.S. 296 (1940) ........................................... 10

Church of the Lukumi Babalu Aye, Inc. v.

City of Hialeah,

508 U.S. 520 (1993) ....................................... 3, 10

Coulee Cath. Sch. v. Labor & Indus. Rev.

Comm’n,

768 N.W.2d 868 (Wis. 2009) ............................. 12

Edwards v. Aguillard,

482 U.S. 578 (1987) ............................................. 2

Espinoza v. Montana Dep’t of Revenue,

591 U.S. 464 (2020) ............................... 10, 11, 21

Everson v. Board of Educ. of Ewing Twp.,

330 U.S. 1 (1947) ............................................... 13

Farrington v. Tokushige,

273 U.S. 284 (1927) ............................................. 7

iii

Follett v. Town of McCormick,

321 U.S. 573 (1944) ........................................... 10

Fulton v. City of Philadelphia,

593 U.S. 522 (2021) ......................... 16, 17, 18, 23

Gruenke v. Seip,

225 F.3d 290 (3d Cir. 2000) ................................ 2

Hamit v. Hamit,

715 N.W.2d 512 (Neb. 2006) ............................. 14

Holt v. Hobbs,

574 U.S. 352 (2015) ..................................... 17, 23

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) ..................................... 10, 17

Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy,

594 U.S. 180 (2021) ............................................. 5

Meyer v. Nebraska,

262 U.S. 390 (1923) ......................................... 6, 7

Moore v. City of East Cleveland,

431 U.S. 494 (1977) ............................................. 6

Morse v. Frederick,

551 U.S. 393 (2007) ........................................... 17

Nation v. San Juan Cnty.,

150 F. Supp. 3d 1253 (D. Utah 2015) ............... 23

Navajo Nation v. San Juan Cnty.,

929 F.3d 1270 (10th Cir. 2019) ......................... 23

Nelson v. Nazareth Indep. Sch. Dist.,

No. 2:24-CV-177-Z, 2024 WL 4116495

(N.D. Tex. Sept. 6, 2024) ................................... 12

New York v. Ferber,

458 U.S. 747 (1982) ............................................. 7

Owenby v. Young,

579 S.E.2d 264 (N.C. 2003) ............................... 14

Parham v. J.R.,

442 U.S. 584 (1979) ................................. 6, 7, 8, 9

iv

People v. DeJonge,

501 N.W.2d 127 (Mich. 1993) ........................... 11

Pierce v. Society of Sisters,

268 U.S. 510 (1925) ............................................. 7

Prince v. Massachusetts,

321 U.S. 158 (1944) ....................................... 6, 11

Ramirez v. Collier,

595 U.S. 411, 420 (2022) ....................... 17, 21, 22

Reynolds v. United States,

98 U.S. 145 (1878) ............................................. 10

Santosky v. Kramer,

455 U.S. 745 (1982) ............................................. 6

Sherbert v. Verner,

374 U.S. 398 (1963) ................................... 8, 9, 16

Smith v. Organization of Foster Families for

Equal. & Reform,

431 U.S. 816 (1977) ....................................... 4, 11

Spence v. Bailey,

465 F.2d 797 (6th Cir. 1972) ............................. 11

Stanley v. Illinois,

405 U.S. 645 (1972) ............................................. 6

State v. Everly,

146 S.E.2d 705 (W. Va. 1966) ........................... 13

Swanner v. Anchorage Equal Rts. Comm’n,

874 P.2d 274 (Alaska 1994) .............................. 13

Tatel v. Mt. Lebanon Sch. Dist.,

No. CV 22-837, 2024 WL 4362459

(W.D. Pa. Sept. 30, 2024) .................................. 18

Thomas v. Review Board of the Indiana

Employment Security Division,

450 U.S. 707 (1981) ........................................... 16

Troxel v. Granville,

530 U.S. 57 (2000) ............................................... 6

v

Vlaming v. West Point Sch. Bd.,

895 S.E.2d 705 (Va. 2023)............................. 8, 13

Walker v. Blair,

382 S.W.3d 862 (Ky. 2012)................................ 14

Washington v. Glucksberg,

521 U.S. 702 (1997) ............................................. 6

W. Va. State Board of Education v.

Barnette,

319 U.S. 624 (1943) ........................................... 13

Wisconsin v. Yoder,

406 U.S. 205 (1972) ................... 4, 6, 7, 11, 15, 21

Wynn v. Carey,

582 F.2d 1375 (7th Cir. 1978) ........................... 14

Statutes

22 PA. CODE § 4.4 .................................................... 20

22 PA. CODE § 4.29 .................................................. 19

105 ILL. COMP. STAT. ANN. 5/27-9.1a...................... 19

16 R.I. GEN. LAWS § 16-22-17 ................................. 19

16 R.I. GEN. LAWS § 16-22-18 ................................. 19

ARIZ. REV. STAT. ANN. § 15-102 ........................ 19, 20

ARK. CODE ANN. § 6-16-1006 ............................ 19, 20

CAL. EDUC. CODE § 51937 ....................................... 19

CAL. EDUC. CODE § 51938 ....................................... 19

COLO. REV. STAT. § 22-1-128 .................................. 19

CONN. GEN. STAT. ANN. § 10-16e ...................... 19, 20

D.C. MUN. REGS. tit. 5, § E2305.5 .......................... 19

FLA. STAT. ANN. § 1003.42 ...................................... 19

GA. CODE ANN. § 20-2-143 ...................................... 19

vi

IDAHO CODE ANN. § 33-1608 ................................... 15

IDAHO CODE ANN. § 33-1611 ............................. 19, 20

IND. CODE § 20-30-5-17........................................... 19

IOWA CODE ANN. § 256.11................................. 19, 21

KAN. ADMIN. REGS. § 91-31-35 ......................... 19, 21

KY. REV. STAT. ANN. § 158.1415 ............................. 19

LA. STAT. ANN. § 17:281 .................................... 15, 19

MASS. GEN. LAWS ANN. ch. 71, § 32A ..................... 19

MD. CODE REGS. § 13A.04.18.01 ................. 19, 21, 22

ME. REV. STAT. ANN. tit. 22, § 1911 ....................... 19

MICH. COMP. LAWS. § 380.1507 .............................. 19

MINN. STAT. ANN. § 120B.20 ............................ 19, 20

MISS. CODE ANN. § 37-13-173 ................................. 19

MO. ANN. STAT. § 170.015....................................... 19

MONT. CODE ANN. § 20-7-120 ........................... 19, 20

N.C. GEN. STAT. § 115C-81.30 ................................ 19

N.C. GEN. STAT. § 115C-81.30 ................................ 21

N.H. REV. STAT. ANN. § 186:11............................... 19

N.J. STAT. ANN. § 18A:35-4.7 ........................... 19, 20

N.M. CODE R. § 6.29.6.11 ....................................... 19

N.Y. COMP. CODES R. & REGS. tit. 8, § 135.3 ......... 19

NEB. REV. ST. § 79-532 ........................................... 19

NEV. REV. STAT. ANN. § 389.036 ............................. 19

OHIO REV. CODE ANN. § 3313.60 ............................ 19

OHIO REV. CODE ANN. § 3313.473 .......................... 20

OKLA. STAT. tit. 25, § 2003 ..................................... 20

vii

OKLA. STAT. ANN. tit. 70, § 11-105.1 ...................... 19

OR. REV. STAT. § 336.465 ........................................ 19

S.C. CODE ANN. § 59-32-50 ............................... 19, 21

S.D. CODIFIED LAWS § 13-33-6.1............................. 15

TENN. CODE ANN. § 6-1307 ..................................... 20

TENN. CODE ANN. § 6-1308 ..................................... 20

TENN. CODE ANN. § 49-6-1305 .......................... 19, 20

TEX. CODE ANN. § 28.004 ........................................ 19

TEX. EDUC. CODE ANN. § 26.010 ............................. 20

UTAH CODE. ANN. § 53G-10-205 ............................. 20

UTAH CODE ANN. § 53G-10-403 .............................. 19

VA. CODE ANN. § 22.1-207.2 ............................. 19, 21

VT. STAT. ANN. tit. 16, § 134 ................................... 19

W. VA. CODE ANN. § 18-2-9 ..................................... 19

WASH. REV. CODE ANN. § 28A.230.070 .................. 19

WIS. STAT. § 118.019............................................... 19

WYO. STAT. ANN. § 21-3-135 ................................... 19

Constitutional Provisions

U.S. Const. amend. I .............................................. 10

W. VA. CONST. art. III, § 15 .................................... 13

Other Authorities

1 A.E. DICK HOWARD,

COMMENTARIES ON THE CONSTITUTION OF

VIRGINIA (1974) ................................................. 13

viii

1 WILLIAM BLACKSTONE,

COMMENTARIES (1752)......................................... 4

Alpine Sch. Dist.,

Policy No. 6161 - Procedures 6.8,

available at https://tinyurl.com/3ybu8cp8 ....... 22

BERNARD WISHY,

THE CHILD AND THE REPUBLIC (1968) ................. 5

COTTON MATHER,

A FAMILY WELL-ORDERED (1699) ........................ 5

Darryn Cathryn Beckstrom,

Balancing Civic Values and Parents’

Free Exercise Rights,

45 GONZ. L. REV. 149 (2010) ............................. 21

EDMUND S. MORGAN,

THE PURITAN FAMILY: RELIGION AND

DOMESTIC RELATIONS IN SEVENTEENTH

CENTURY NEW ENGLAND (rev. ed. 1966) ............. 5

Eric A. DeGroff,

Parental Rights and Public School

Curricula: Revisiting Mozert After 20

Years,

38 J.L. & EDUC. 83 (2009) ................................. 12

HAW. STATE DEP’T OF EDUC.,

SEXUAL HEALTH EDUC. POL’Y 103-5

(2016) ................................................................. 19

Helen M. Alvaré,

Families, Schools, and Religious

Freedom,

54 LOY. U. CHI. L.J. 579 (2022) ....................... 2, 3

James Madison,

Property (Mar. 29, 1792) in 1 THE

FOUNDERS’ CONSTITUTION 598 (Philip B.

Kurland & Ralph Lerner eds., 1987).................. 9

ix

JEFFREY S. SUTTON,

51 IMPERFECT SOLUTIONS: STATES AND

THE MAKING OF AMERICAN

CONSTITUTIONAL LAW (2008)............................. 14

John Dinan,

The State Constitutional Tradition and

the Formation of Virtuous Citizens,

72 TEMP. L. REV. 619 (1999) ............................. 12

John Witte, Jr. & Joel A. Nichols,

“Come Now Let Us Reason Together”:

Restoring Religious Freedom in America

and Abroad,

92 NOTRE DAME L. REV. 427 (2016) .................... 9

Melody Alemansour, et al.,

Sex Education in Schools,

20 GEO. J. GENDER & L. 467 (2019) .................. 18

Michael E. Lechliter,

The Free Exercise of Religion and Public

Schools: The Implications of Hybrid

Rights on the Religious Upbringing of

Children,

103 MICH. L. REV. 2209 (2005).......................... 11

Michael W. McConnell,

The Origins and Historical

Understanding of Free Exercise of

Religion,

103 HARV. L. REV. 1409 (1990) ................. 8, 9, 12

Noah Webster,

On the Education of Youth in America

(1790) in ESSAYS ON EDUCATION IN THE

EARLY REPUBLIC

(Frederick Rudolph ed. 1965) ............................. 5

North Penn Sch. Dist.,

Board Policy 105.2, available at

https://tinyurl.com/drnc8vdx ............................ 22

x

Oshkosh Area Sch. Dist.,

Policy Manual Code po2270, available at

https://tinyurl.com/bddswfb8 ............................ 22

Parent Opt-out for Child,

HAW. STATE DEP’T OF EDUC.,

https://tinyurl.com/34skssuy (last

accessed Mar. 6, 2025) ...................................... 20

Ryan Bangert,

Parental Rights in the Age of Gender

Ideology,

27 TEX. REV. L. & POL. 715 (2023) ...................... 7

SIECUS,

SEX ED STATE LAW AND POLICY CHART

(July 2022), https://tinyurl.com/yddu4t74 ....... 15

WILLIAM WARREN SWEET,

RELIGION IN COLONIAL AMERICA (1965)............ 10

WYO. DEP'T OF EDUC.,

2023 HEALTH AND SAFETY WYOMING

CONTENT & PERFORMANCE STANDARDS

(effective July 17, 2024) .................................... 15

INTERESTS OF AMICI CURIAE

Amici curiae are the State of West Virginia, the

Commonwealth of Virginia, the State of Alabama, the

State of Alaska, the State of Arkansas, the State of

Florida, the State of Georgia, the State of Idaho, the

State of Indiana, the State of Iowa, the State of Kansas, the Commonwealth of Kentucky, the State of Louisiana, the State of Mississippi, the State of Missouri,

the State of Montana, the State of Nebraska, the State

of North Dakota, the State of Ohio, the State of Oklahoma, the Commonwealth of Pennsylvania the State

of South Carolina, the State of South Dakota, the

State of Texas, the State of Utah, and the State of Wyoming (collectively, the Amici States). Amici States

have a compelling interest in ensuring that their political subdivisions and school boards respect their citizens’ constitutional rights. Many Amici States have

ensured that respect by passing laws that provide parents with notice and the right to opt their children out

of instruction on human sexuality. But the School

Board of Montgomery County, Maryland took the opposite approach—it categorically will not allow optouts for students whose parents object to the School

Board’s “Pride Storybooks.” This flat ban on parental

discretion violates the federal Constitution.

Amici States believe that governments should be

zealous in enforcing laws meant to protect their citizens’ First Amendment rights and parents’ rights to

direct the education of their children. But the School

Board’s policy here shows no such concern, instead requiring children to participate in sex education even

where they or their families object on religious

grounds. As Amici States explain, the Fourth Circuit

was wrong in its evaluation of the School Board’s policy; refusing parent requests to opt their young children out of reading Pride Storybooks burdens those

2

parents’ and students’ religious exercise. What’s more,

the sheer prevalence of opt-out policies nationwide

confirms that the School Board lacks a compelling interest in opposing one. At a minimum, the School

Board’s policy is not the least restrictive means of furthering any governmental interest.

INTRODUCTION AND

SUMMARY OF ARGUMENT

For decades, courts have recognized that students

in elementary schools are “impressionable,” Edwards

v. Aguillard, 482 U.S. 578, 584 (1987), “vulnerable,”

Brown v. Woodland Joint Unified Sch. Dist., 27 F.3d

1373, 1378 (9th Cir. 1994), and particularly sensitive

when it comes to matters of morality, religion, and belief, Gruenke v. Seip, 225 F.3d 290, 307 (3d Cir. 2000).

So it’s no wonder that cases like this one—that is,

cases that concern how to raise our smallest citizens—

implicate fundamental constitutional rights. Parents

have a right to guide their children’s education. They

also have a right to decide their children’s religious

upbringing. Both those rights work together to empower parents because sexual education “constitute[s]

[an] important pillar[] of a religious faith.” Helen M.

Alvaré, Families, Schools, and Religious Freedom, 54

LOY. U. CHI. L.J. 579, 639 (2022). At least without

some substantial countervailing state interest, parents must therefore have, at minimum, a right to opt

out from exposing their young children to sex education that violates their religion.

For reasons like these, States have long stepped up

to protect parents’ rights. A substantial majority of

States have enshrined protections for parental choice

in matters of sex education—in other words, matters

exactly like those involved here—into law. That long

tradition directly undermines any claim by the School

3

Board that opt-outs are not feasible alternatives. And

indeed, much suggests that “the state’s claimed interests are either ineffectively promoted by the sexual

content they are promoting, or possibly better promoted by the religious norms the state opposes.” Alvaré, supra, at 638.

This Court should hold that strict scrutiny applies

to this infringement on two fundamental constitutional rights and accordingly require schools to provide opt-out rights. Only then will our youngest, our

most vulnerable, and our most impressionable citizens receive the protections that they deserve—and

the Constitution demands. Respondents ask this

Court to sign off on a school policy that permits a local

school district to impose its preferred ideology on

young, impressionable minds—over their parents’ religious objections. But that would wave the problem

away, insisting that forced participation in an educational program over the parents’ religious objection is

no burden at all. This view is wrong.

The Court should reverse the Fourth Circuit’s

judgment.

ARGUMENT

I.

Laws authorizing students to opt out of sex

education protect essential free-exercise

and parental-autonomy rights.

The First Amendment right to religious freedom is

“essential,” Church of the Lukumi Babalu Aye, Inc. v.

City of Hialeah, 508 U.S. 520, 524 (1993), especially

combined with another fundamental liberty: parents’

right to direct their children’s education. The Fourth

Circuit’s decision endangers both those key interests.

The Court should, therefore, reverse the judgment below.

4

A. Parental rights existed well before the Founding. They derive from both common law and natural

law. “The history and culture of Western civilization

reflect a strong tradition of parental concern for the

nurture and upbringing of their children.” Wisconsin

v. Yoder, 406 U.S. 205, 232 (1972). Not only are these

rights “older than the Bill of Rights,” but they originate in “intrinsic” human rights. Smith v. Organization of Foster Families for Equal. & Reform, 431 U.S.

816, 845 (1977) (quotation marks omitted). As William

Blackstone recognized, parental rights emanate from

natural law and “the most universal relation in nature.” 1 WILLIAM BLACKSTONE, COMMENTARIES, *446

(1752). Drawing from that long tradition, English

common law recognized that children need parental

direction and authority. Id. at *450–51. Parents, after

all, have “maturity, experience, and capacity for judgment” that their children lack. Id. at *447. The law

has thus long protected parental rights primarily for

the child’s sake—not to hand parents more power at

the children’s expense. In fact, parental rights serve

to enhance children’s ability meaningfully to exercise

their liberties once they are properly developed by the

care of their parents. Bellotti v. Baird, 443 U.S. 622,

638–39 (1979) (“Legal restrictions on minors, especially those supportive of the parental role, may be important to the child’s chances for the full growth and

maturity that make eventual participation in a free

society meaningful and rewarding.”).

At the Founding, parents had control over what

their children observed and heard. See Brown v. Entertainment Merchs. Ass’n, 564 U.S. 786, 825 (2011)

(Thomas, J., dissenting). They had the “right and duty

to ‘fill [their] children’s minds with knowledge’” and

to forbid them from encountering corrupting ideas to

ensure their proper development. Id. at 823–24

5

(quoting EDMUND S. MORGAN, THE PURITAN FAMILY:

RELIGION AND DOMESTIC RELATIONS IN SEVENTEENTH

CENTURY NEW ENGLAND 97 (rev. ed. 1966)) (cleaned

up); see also COTTON MATHER, A FAMILY WELL-ORDERED 38 (1699). This idea manifested particularly in

control over what children read. Brown, 564 U.S. at

823–24 (Thomas, J., dissenting). And with these

rights came the societal expectation that parents

would “close[ly] monitor[]” their children to ensure

their proper development. Id. at 823–27; see BERNARD

WISHY, THE CHILD AND THE REPUBLIC 24–25 (1968).

“The concept of total parental control over children’s lives extended into the schools.” Brown, 564

U.S. at 830 (Thomas, J., dissenting) (citing Noah Webster, On the Education of Youth in America (1790) in

ESSAYS ON EDUCATION IN THE EARLY REPUBLIC 57–58

(Frederick Rudolph ed. 1965)). Through the doctrine

of in loco parentis, “teachers assumed the sacred duty

of parents . . . to train up and qualify their children.”

Ibid. (cleaned up). But the schoolteacher had authority to do only what the parent allowed him to do—by

virtue of the parent’s delegation of his own duties and

his consent to the teacher’s work. Mahanoy Area Sch.

Dist. v. B.L. ex rel. Levy, 594 U.S. 180, 198–99 (2021)

(Alito, J., concurring). Parents and society at large

watched schoolteachers “with the most scrupulous attention.” Brown, 564 U.S. at 830 (Thomas, J., dissenting). And the laws “reflected these concerns and often

supported parental authority with the coercive power

of the state,” id. at 835, because the parents ultimately remained the primary formator, B.L., 594 U.S.

at 201–02 (Alito, J., concurring).

The Constitution and the cases construing it reflect these early legal principles. Since the Founding,

American parents have enjoyed a right to direct their

6

children’s education. And this Court has held that parental rights are a “fundamental liberty interest” under the Fourteenth Amendment. Santosky v. Kramer,

455 U.S. 745, 753 (1982). Indeed, parents’ role in

shaping their children’s formation through education

“is now established beyond debate as an enduring

American tradition.” Yoder, 406 U.S. at 232; see also

Moore v. City of East Cleveland, 431 U.S. 494, 503–04

(1977) (“[T]he Constitution protects the sanctity of the

family precisely because the institution of the family

is deeply rooted in this Nation’s history and tradition.”); Stanley v. Illinois, 405 U.S. 645, 651 (1972)

(“The rights to conceive and to raise one’s children

have been deemed ‘essential,’ ‘basic civil rights of

man,’ and ‘[r]ights far more precious . . . than property

rights.’” (cleaned up)). To that end, “the liberty specially protected by the Due Process Clause includes

[this parental] right . . . to direct the education and

upbringing of one’s children.” Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (cleaned up); accord

Prince v. Massachusetts, 321 U.S. 158, 166 (1944). Especially as to education, “it cannot now be doubted

that the Due Process Clause of the Fourteenth

Amendment

protects

[this]

fundamental

right.” Troxel v. Granville, 530 U.S. 57, 65–66 (2000)

(plurality op.). Again, the right reflects the commonsense notion “that natural bonds of affection lead

parents to act in the best interests of their children.”

Parham v. J.R., 442 U.S. 584, 602 (1979).

This Court has repeatedly affirmed the breadth of

the parent’s right “to give his children education suitable to their station in life,” because its conservation

has “long [been] recognized at common law as essential to the orderly pursuit of happiness by free men.”

Meyer v. Nebraska, 262 U.S. 390, 399–400 (1923). The

Court has safeguarded this right on many occasions—

7

stepping in to protect private education, ensuring

Amish families can homeschool their children, and

striking down prohibitions against education in a foreign language. See id. at 400; Farrington v. Tokushige, 273 U.S. 284, 289–99 (1927); Pierce v. Society

of Sisters, 268 U.S. 510, 534–35 (1925); Yoder, 406

U.S. at 234.

The throughline in these cases is simple—parents

need wide latitude when making difficult educational

decisions, and “[n]either state officials nor federal

courts are equipped to review” those decisions. Parham, 442 U.S. at 604. “The child is not the mere creature of the state,” Pierce, 268 U.S. at 535, and the risks

of child-rearing choices do “not automatically transfer

the power to make that decision” to the government,

Parham, 442 U.S. at 603. Rather, “the state’s responsibility for children’s well-being is a subsidiary one

which ought to be carried out in a subsidiary way[,]

i.e., by assisting parents to discharge their obligations.” Ryan Bangert, Parental Rights in the Age of

Gender Ideology, 27 TEX. REV. L. & POL. 715, 719

(2023) (cleaned up). As a result, the State lacks “any

general power . . . to standardize its children by forcing them to accept instruction from public teachers

only,” because the State would be replacing the parent’s leadership. Pierce, 268 U.S. at 535.

To be sure, parental rights are not absolute. The

State has a strong interest in stepping in to protect

children from abuse and neglect. See Parham, 442

U.S. at 602–04; accord New York v. Ferber, 458 U.S.

747, 756–57 (1982) (noting the state’s “compelling”

“interest in safeguarding the physical and psychological well-being of a minor” (quotation marks omitted)).

The State’s right to do so remains even if the parental

right implicates a religious concern. Parents, for

8

instance, do not have the right to obtain reasonably

banned medical treatments for their children—even

when the parents’ religious conviction is at odds with

the State’s choice. Parham, 442 U.S. at 603–04 (“[A]

state is not without constitutional control over parental discretion in dealing with children when their

physical or mental health is jeopardized.”). So parental rights—religious in nature or not—cannot include

such misconduct. Ibid.

This notion that the prohibition of child abuse may

trump even religious liberty tracks the broader principle that injuries to public safety “may override free

exercise claims.” Michael W. McConnell, The Origins

and Historical Understanding of Free Exercise of Religion, 103 HARV. L. REV. 1409, 1505 (1990); see also

Sherbert v. Verner, 374 U.S. 398, 403 (1963) (“The [religious] conduct or actions so regulated have invariably posed some substantial threat to public safety,

peace or order.”). States historically asked whether

“the natural tendency of [the religious exercise] is to

produce practices inconsistent with the public safety

or tranquility.” McConnell, supra, at 1505; see also

Vlaming v. West Point Sch. Bd., 895 S.E.2d 705, 721

(Va. 2023) (holding that, in the Commonwealth of Virginia, the constitutional right of free exercise of religion is “among the ‘natural and unalienable rights of

mankind’ and that ‘overt acts against peace and good

order’ correctly defines the limiting principle for this

right and establishes the duty of government to accommodate religious liberties that do not transgress

these limits” (citations omitted)). Nine States at the

Founding limited Free Exercise to actions considered

“peaceable” or that would not disturb “safety.”

McConnell, supra, at 1461.

9

But these safeguards directed at fundamental

physical wellbeing do not alter the default presumption that parents act in the best interests of their children. McConnell, supra, at 1461. “[O]nly the gravest

abuses” ought to limit First Amendment rights. Sherbert, 374 U.S. at 406 (quotation marks omitted). And

“[s]imply because the decision of a parent . . . involves

risks does not automatically transfer the power to

make that decision to . . . the state.” Parham, 442 U.S.

at 603.

B. These parental rights work hand in hand with

another centuries-old right: the right to the free exercise of religion.

Here again, the First Amendment enshrined law

protecting religious freedom and conscience rights

cherished long before the Constitution came to be.

Colonies recognized the fundamental importance of

freedom of religion and conscience well before the

Founding because of their religious diversity. See, e.g.,

Abbo v. Briskin, 660 So. 2d 1157, 1159 (Fla. Dist. Ct.

App. 1995) (“By the time of our revolutionary war, religious diversity was a fact of colonial life.”). Early

Americans believed religion provided a venue for conscience to take root in man’s heart, and the Framers

viewed conscience as “most sacred.” James Madison,

Property (Mar. 29, 1792) in 1 THE FOUNDERS’ CONSTITUTION 598, 598 (Philip B. Kurland & Ralph Lerner

eds., 1987). “[T]he founding generation . . . defend[ed]

religious freedom for all peaceable faiths, and wove

multiple principles of religious freedom into the new

state and federal constitutions of 1776 to 1791.” John

Witte, Jr. & Joel A. Nichols, “Come Now Let Us Reason Together”: Restoring Religious Freedom in America and Abroad, 92 NOTRE DAME L. REV. 427, 436

(2016). And “the embodiment” of religious liberty in

10

these constitutions “was simply writing colonial experience into the fundamental law of the land.” WILLIAM

WARREN SWEET, RELIGION IN COLONIAL AMERICA

(1965).

Robust religious freedom protections arose from

this tradition, grounded in the Free Exercise Clause

and the Establishment Clause (and applied to the

States through the Fourteenth Amendment). U.S.

Const. amend. I.; Cantwell v. Connecticut, 310 U.S.

296, 303 (1940). And now, “[r]eligious freedom is guaranteed everywhere throughout the United States.”

Reynolds v. United States, 98 U.S. 145, 162 (1878).

The Religion Clauses are broad in scope—in proper

proportion to their importance. The First Amendment

guarantees Americans religious freedom no matter

who they are or where they are. See Follett v. Town of

McCormick, 321 U.S. 573, 577 (1944). And the Free

Exercise Clause “does perhaps its most important

work by protecting the ability of those who hold religious beliefs of all kinds to live out their faiths in daily

life.” Kennedy v. Bremerton Sch. Dist., 597 U.S. 507,

524 (2022) (citing Employment Div. v. Smith, 494 U.S.

872, 877 (1990)). Thus, “upon even slight suspicion

that” state action “stem[s] from animosity to religion

or distrust of its practices, all officials must pause to

remember their own high duty to the Constitution and

to the rights it secures.” City of Hialeah, 508 U.S. at

547. Coercion—even indirect coercion from an unfair

choice between free exercise and reception of a public

benefit—violates the First Amendment. Espinoza v.

Montana Dep’t of Revenue, 591 U.S. 464, 475–76

(2020).

C. This case brings these two sets of rights—parental rights and free-exercise rights—together. Policies like the one here go directly to the “inculcation of

11

moral standards” and “religious beliefs” of children.

Yoder, 406 U.S. at 233. Thankfully for all Americans,

most state action infringing on the “rights of parents

to direct ‘the religious upbringing’ of their children”

violates the Free Exercise Clause. Espinoza, 591 U.S.

at 486 (quoting Yoder, 406 U.S. at 213–14). While

States also have a “deeply rooted commitment to education,” our religious liberties become “meaningless”

if they must yield to the State’s interest in education.

People v. DeJonge, 501 N.W.2d 127, 138–39 (Mich.

1993). When educational and religious freedom interests clash, courts need to scrutinize the effect of granting an exemption on the state’s interest in education

to ensure religious liberty receives constitutional protection in schools. Id. at 140.

Put differently, this case presents a “hybrid situation,” wherein “the Free Exercise Clause” is “in conjunction with . . . the right of parents . . . to direct the

education of their children.” Smith, 494 U.S. at 881–

82 (cleaned up). In these hybrid situations, the parental right and the free exercise right are “incorporated

together to provide a specific bite to the free exercise

claim.” Michael E. Lechliter, The Free Exercise of Religion and Public Schools: The Implications of Hybrid

Rights on the Religious Upbringing of Children, 103

MICH. L. REV. 2209, 2215 (2005). “The parent’s conflict

with the state over control of the child and his training

is serious enough when only secular matters are concerned. It becomes the more so when an element of

religious conviction enters.” Prince, 321 U.S. at 165.

After all, “[t]he State may not put its citizens to . . . a

Hobson’s choice” of either “following . . . religious beliefs and forfeiting [a] diploma” or “abandoning . . . religious beliefs” and receiving one. Spence v. Bailey,

465 F.2d 797, 800 (6th Cir. 1972).

12

Altogether, “[t]he right of parents to make moral

and religious choices concerning curricular offerings

in the public schools—within the limits necessary to

serve truly compelling state interests—is central to

the preservation of liberty.” Eric A. DeGroff, Parental

Rights and Public School Curricula: Revisiting

Mozert After 20 Years, 38 J.L. & EDUC. 83, 127 (2009).

“Combined, the Fourteenth Amendment’s Due Process Clause, the First Amendment’s Free Exercise

Clause,” and certain state constitutions and statutes

“do indeed protect parents and children who (1) opt

out of public education entirely or (2) opt out of educational content that violates sincerely held religious or

conscience-based beliefs.” Nelson v. Nazareth Indep.

Sch. Dist., No. 2:24-CV-177-Z, 2024 WL 4116495, at

*4 (N.D. Tex. Sept. 6, 2024) (cleaned up). The Fourth

Circuit lost sight of those basic principles here.

II.

Laws authorizing students to opt out of sex

education are longstanding, widespread,

and respectful of parental rights and religious freedom.

A. The state constitutional provisions protecting

religious freedom predated and led to the federal constitution’s Religion Clauses. See generally John Dinan, The State Constitutional Tradition and the Formation of Virtuous Citizens, 72 TEMP. L. REV. 619

(1999). By 1789, all States but one had constitutional

protection for religious freedom and understood it to

be an unalienable right. McConnell, supra, at 1455–

56. And today, “religious freedom” is still accorded a

“special status” in state constitutions. Coulee Cath.

Sch. v. Labor & Indus. Rev. Comm’n, 768 N.W.2d 868,

891–92 (Wis. 2009). State constitutions continue to

value religious freedom as an “unalienable right.”

McConnell, supra, at 1455–56.

13

State constitutions often “provide greater protection to the free exercise of religion . . . than is now provided under the United States Constitution.” Swanner

v. Anchorage Equal Rts. Comm’n, 874 P.2d 274, 280

(Alaska 1994). For example, West Virginia’s constitutional protections for religious freedom are “broader”

than the First Amendment. State v. Everly, 146 S.E.2d

705, 707 (W. Va. 1966); see W. VA. CONST. art. III, § 15.

Virginia also played a central role in securing religious freedom, and its constitution likewise has a “vitality independent of the Federal Constitution.” 1 A.E.

DICK HOWARD, COMMENTARIES ON THE CONSTITUTION

OF VIRGINIA 303 (1974); see also Vlaming, 895 S.E.2d

at 716 (“Given Virginia’s historic role in the protection

of religious liberties, the provisions in the Constitution of Virginia have a vitality independent of the Federal Constitution.” (cleaned up)). James Madison and

Thomas Jefferson advocated for Virginia laws that ensured citizens would not “suffer on account of [their]

religious opinions or belief.” Everson v. Board of Educ.

of Ewing Twp., 330 U.S. 1, 13 (1947). Virginia then

emerged as the archetype for how States would treat

religious liberty: with the utmost respect and care.

State courts have also steered federal courts towards important religious liberty principles. A West

Virginia court, for instance, paved the way for an axiomatic rule declared by this Court. In West Virginia

State Board of Education v. Barnette, this Court said

“[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in . . . religion, or other

matters of opinion or force citizens to confess by word

or act their faith therein.” 319 U.S. 624, 642 (1943).

One year earlier, a state court in West Virginia decided a case like Barnette that dealt with five Jehovah’s Witnesses indicted for not saluting the

14

American flag. JEFFREY S. SUTTON, 51 IMPERFECT SOLUTIONS: STATES AND THE MAKING OF AMERICAN CONSTITUTIONAL LAW 164 (2008) (citing Mem. Op., State v.

Mercante (W. Va. Cir. Ct. June 1, 1942)). Citing the

state constitution, the judge wrote that “freedom of religion” requires that “unpopular minorities may hold

views unreasonable in the opinion of majorities,”

charting the path for Barnette. Ibid. (cleaned up).

B. The same reverence States have for religious

freedom is on display in their parental rights laws.

States have “an interest in not undermining [the family] unit.” Wynn v. Carey, 582 F.2d 1375, 1385 (7th Cir.

1978). That interest starts with protecting parental

rights—the foundation of the parent-child relationship, the first societal unit. They are among the “oldest of the fundamental liberty interests” recognized by

the States. In re Adoption of O.R., 16 N.E.3d 965, 972

(Ind. 2014) (quoting Troxel, 530 U.S. at 65).

State courts routinely highlight the rights given to

parents in state laws. For instance, a Kentucky court

said a “court must presume that a parent is acting in

the child’s best interest.” Walker v. Blair, 382 S.W.3d

862, 873 (Ky. 2012). A North Carolina court similarly

did not allow the State to strip a parent of custody under the guise of a “best interest of the child” standard

which substituted the judgment of the State for the

judgment of the parents, unless the parent’s conduct

was “inconsistent with his or her constitutionally protected status.” Owenby v. Young, 579 S.E.2d 264, 266–

67 (N.C. 2003) (quotation marks omitted). And a Nebraska court acknowledged the “fundamental nature

of . . . parental rights” by writing they warranted “a

strict scrutiny level of analysis.” Hamit v. Hamit, 715

N.W.2d 512, 527 (Neb. 2006).

15

These parental rights are especially relevant in the

realm of sex education. Few topics more directly implicate parents’ fundamental right to direct the “inculcation of moral standards” and “religious beliefs” of

their children. Yoder, 406 U.S. at 233. But all States

either require or authorize public schools to provide

some instruction in human sexuality.1 As set forth in

more detail below, States prevent such instruction

from conflicting with parental and religious rights by

allowing parents to opt their children out—or providing that the instruction will be given only if parents

opt their children in. See Section III, infra.

States’ broad protection of parental and religious

rights—and their near-universal adoption of broad

parental opt-in or opt-out policies for purposes of sexual health instruction—reflects a time-honored tradition of state recognition of parental rights and religious freedom.

III. Because of this nationwide history and

practice, the School Board cannot satisfy

strict scrutiny.

As Judge Quattlebaum highlighted in his dissent,

indirect coercion on religious individuals is subject to

1 SIECUS, SEX ED STATE LAW AND POLICY CHART, (July 2022),

https://tinyurl.com/yddu4t74 (recording 46 States and the District of Columbia as requiring some type of sexual health education); IDAHO CODE ANN. § 33-1608 (the “local school board” may

decide “whether or not any program in family life and sex education is to be introduced in the schools”); LA. STAT. ANN.

§ 17:281(A)(1)(a) (giving school boards authority to decide

whether to offer sex education); S.D. CODIFIED LAWS § 13-33-6.1

(requiring “character development instruction” including “sexual

abstinence” unless the appropriate body chooses otherwise);

WYO. DEP’T OF EDUC., 2023 HEALTH AND SAFETY WYOMING CONTENT & PERFORMANCE STANDARDS (effective July 17, 2024) (suggesting human sexuality as a topic of instruction).

16

strict scrutiny under the First Amendment. Respondents cannot meet this standard. See Pet. App. 52a–

75a.

This Court has long held that requiring claimants

to choose between violating their religious beliefs and

accepting government benefits burdens the free exercise of religion. See Fulton v. City of Philadelphia, 593

U.S. 522, 532 (2021) (“[I]t is plain that the City’s actions have burdened [the plaintiff’s] religious exercise

by putting it to the choice of curtailing its mission or

approving relationships inconsistent with its beliefs.”); Sherbert, 374 U.S. at 404 (“Governmental imposition” of a choice “between following the precepts of

her religion and forfeiting benefits, on the one hand,

and abandoning one of the precepts of her religion in

order to accept work, on the other hand,” puts an impermissible “burden upon the free exercise of religion”).

The Fourth Circuit rejected this historical understanding. The court held that the School Board did not

require the parents or their children to disavow their

beliefs to benefit from public schools. See Pet. App.

46a. But as the dissent noted, the Fourth Circuit’s

view cannot be squared with this Court’s precedent:

Sherbert, 374 U.S. 398; Thomas v. Review Board of the

Indiana Employment Security Division, 450 U.S. 707

(1981); or Fulton, 593 U.S. 522. See Pet. App. 66a n.3

(Quattlebaum, J., dissenting). The relevant question

is not whether there is a “total barrier to the public

benefit.” Ibid. Rather, the question is whether the

state policy puts individuals to the difficult choice between living out their faith or obtaining the benefit.

See ibid.; accord Fulton, 593 U.S. at 532; Sherbert, 374

U.S. at 404.

17

The Fourth Circuit’s holding incorrectly diminishes the First Amendment rights of schoolchildren,

requiring parents and students to make a threshold

showing of a burden that is greater than the showing

required outside the school context. In Ramirez v. Collier, for instance, the State rightfully conceded that

any burden was substantial when the State refused to

allow a prisoner’s pastor to lay hands on the prisoner

and audibly pray during the prisoner’s execution—

notwithstanding that the State’s policy did not affirmatively prohibit the prisoner himself from praying out

loud or otherwise practicing his religion. 595 U.S. 411,

420, 426 (2022). The lack of accommodation was itself

a substantial burden. See ibid. And in Holt v. Hobbs,

this Court clarified that “the availability of alternative

means of practicing religion” does not alleviate a substantial burden on one aspect of a prisoner’s religious

practice. 574 U.S. 352, 361–62 (2015).2

It cannot be that a burden on religion is inconsequential because it occurs in a school rather than a

prison. The Fourth Circuit pointed out that parents

can choose other forms of education. Pet. App. 46a.

But “the availability of alternative[s]” does not make

a burden insubstantial. See Holt, 574 U.S. at 361–62.

And “[m]ost parents, realistically, have no choice but

to send their children to a public school.” Morse v.

Frederick, 551 U.S. 393, 424 (2007) (Alito, J., concurring). Petitioners here have been put to the choice of

violating their religious beliefs by subjecting their

In both Ramirez and Holt, this Court applied the Religious

Land Use and Institutionalized Persons Act, not the Free Exercise Clause, but the inquiry under both similarly asks whether

the government has burdened, or substantially burdened, the

claimant’s religious exercise. See Ramirez, 595 U.S. at 416, 424–

25; Holt, 574 U.S. at 356; Fulton, 593 U.S. at 532; Kennedy, 597

U.S. at 525.

2

18

young children to teaching contrary to their religion

or forgoing the benefit of public education. Under Fulton, this choice is a burden on free exercise. See 593

U.S. at 532. Strict scrutiny is therefore the appropriate standard to review the School Board’s decision to

deny opt-outs. See Pet. App. 66a–71a; accord Tatel v.

Mt. Lebanon Sch. Dist., No. CV 22-837, 2024 WL

4362459, at *41 (W.D. Pa. Sept. 30, 2024) (holding

that strict scrutiny applied to no-opt-out policy as to

transgender-related instruction in elementary

schools).

To withstand strict scrutiny, government action

“must advance a compelling state interest by the least

restrictive means available.” Bernal v. Fainter, 467

U.S. 216, 219 (1984). The School Board cannot establish a compelling state interest in a categorical ban on

opt-outs given the long history and continued practice

of providing such opt-outs to parents. Given the obvious potential clash between sex education programs

and the fundamental constitutional rights of parents,

the vast majority of States—including Maryland—

“recognize the controversial nature of the issue” of sex

education and “provide either ‘opt-out’ or ‘opt-in’ provisions” in their laws regulating sex education.3 Melody Alemansour, et al., Sex Education in Schools, 20

GEO. J. GENDER & L. 467, 477 (2019).

Maryland law provides that local school systems

“shall establish policies, guidelines, and/or procedures

for student opt-out regarding instruction related to

3 “Opt-out provisions allow parents to remove their children from

the classroom during sex education instruction for religious,

moral, or family reasons.” Alemansour, et al., supra, at 477. By

contrast, opt-in provisions “require affirmative parental consent,

such as a permission slip, before children can participate in a sex

education program.” Ibid.

19

family life and human sexuality objectives.” MD. CODE

REGS. § 13A.04.18.01(D)(2)(e)(i). It joins nearly forty

other States in providing such opt-outs.4 Several other

States require that parents opt in before schools provide instruction on human sexuality to children.5 All

told, about ninety percent of the States provide optout or opt-in rights to ensure that parents may exercise their fundamental rights to direct the education

of their children when it comes to the incredibly sensitive topic of sex education. And these laws are

longstanding: some States have had laws authorizing

parents to opt their children out of sexual health

See ARK. CODE ANN. § 6-16-1006(b), (c); CAL. EDUC. CODE

§§ 51937, 51938; COLO. REV. STAT. §§ 22-25-104(6)(d), 22-1128(3)(a), (4), (5); CONN. GEN. STAT. ANN. § 10-16e; FLA. STAT.

ANN. § 1003.42(5); GA. CODE ANN. § 20-2-143(d); HAW. STATE

DEP’T OF EDUC., SEXUAL HEALTH EDUC. POL’Y 103-5 (2016);

IDAHO CODE ANN. § 33-1611; 105 ILL. COMP. STAT. ANN. 5/279.1a(d); Ind. Code § 20-30-5-17(c), (d); IOWA CODE ANN.

§ 256.11(6)(a); KAN. ADMIN. REGS. § 91-31-35(a)(6); LA. STAT.

ANN. § 17:281(D); MASS. GEN. LAWS ANN. ch. 71, § 32A; ME. REV.

STAT. ANN. tit. 22, § 1911; MICH. COMP. LAWS. § 380.1507(4);

MINN. STAT. ANN. § 120B.20; MO. ANN. STAT. § 170.015(5)(2);

MONT. CODE ANN. § 20-7-120(1); N.C. GEN. STAT. § 115C81.30(b), (c); N.H. REV. STAT. ANN. § 186:11(IX-b); N.J. STAT.

ANN. § 18A:35-4.7; N.M. CODE R. § 6.29.6.11; N.Y. COMP. CODES

R. & REGS. tit. 8, § 135.3; OHIO REV. CODE ANN.

§ 3313.60(A)(5)(c); OKLA. STAT. ANN. tit. 70, §§ 11-103.3(C), 11105.1(A); OR. REV. STAT. § 336.465(1)(b); 22 PA. CODE § 4.29(c);

16 R.I. GEN. LAWS §§ 16-22-17(c), 16-22-18(c); S.C. CODE ANN.

§ 59-32-50; TENN. CODE ANN. § 49-6-1305; TEX. CODE ANN.

§ 28.004(i)(3); VA. CODE ANN. § 22.1-207.2; VT. STAT. ANN. tit. 16,

§ 134; WASH. REV. CODE ANN. § 28A.230.070(4); W. VA. CODE

ANN. § 18-2-9(c); WIS. STAT. § 118.019(3), (4); D.C. MUN. REGS.

tit. 5, § E2305.5; see also NEB. REV. ST. § 79-531(1)(b), -532(1)(c).

4

5 See ARIZ. REV. STAT. ANN. § 15-102(A)(5), (6); KY. REV. STAT.

ANN. § 158.1415(1)(e); MISS. CODE ANN. § 37-13-173; NEV. REV.

STAT. ANN. § 389.036(4); UTAH CODE ANN. § 53G-10-403(2); WYO.

STAT. ANN. § 21-3-135(a)(v).

20

instruction for decades. E.g., IDAHO CODE ANN. § 331611 (1970); CONN. GEN. STAT. ANN. § 10-16e (1979);

N.J. STAT. ANN. § 18A:35-4.7 (effective 1980).

Many States have explicitly made clear that their

opt outs extend beyond the sex education classroom;

rather, they recognize a broad opt-out right that covers all subject areas. For example, Arizona permits

parents to withdraw their children from “any learning

material or activity” they deem “harmful.” ARIZ. REV.

STAT. ANN. § 15-102. And Utah allows parents to

“waive” their children’s “participation in any aspect of

school that violates” the parents’ or children’s “religious belief or right of conscience.” UTAH CODE. ANN.

§ 53G-10-205(4) (West).6 Other States give parents

the opportunity to opt-out of any instruction on sexual

education, sexual orientation, or gender identity, no

matter what class the material appears in.7 And these

broad-opt rights have salutary benefits for the States.

“Parents [are] more likely to send their children to

public schools when [S]tates allow parents to opt-out,”

which avoids “negative consequences for public

6 See also Parent Opt-out for Child, HAW. STATE DEP’T OF EDUC.,

https://tinyurl.com/34skssuy (last accessed Mar. 6, 2025) (providing an opt-out right for controversial issues); MINN. STAT.

§ 120B.20; OKLA. STAT. tit. 25, § 2003; 22 PA. CODE § 4.4(d)(3)

(providing for opt-outs based on religious beliefs); TEX. EDUC.

CODE ANN. § 26.010(a) (allowing parents to opt-out of “a class or

other school activity that conflicts with the parent’s religious or

moral beliefs,” provided the opt-out cannot apply to the entire

semester or be used to avoid testing).

7 See ARK. CODE ANN. § 6-16-1006(b), (c); MONT. CODE ANN. § 20-

7-120(1), (6); OHIO REV. CODE ANN. § 3313.473(B)(1)(b), (G)(5)

(West) (effective April 9, 2025); TENN. CODE ANN. §§ 49-6-1305,

6-1307, 6-1308 (providing that parents must opt-in for children

to receive sexual orientation or gender identity instruction and

that parents may opt out of family life instruction).

21

schools” and promotes “the goal of providing every

child with a civic education.” Darryn Cathryn Beckstrom, Balancing Civic Values and Parents' Free Exercise Rights, 45 GONZ. L. REV. 149, 161 (2010).

Although States can set curricula in public schools,

States also recognize that parents—not governments—have the right to direct the education of children. States thus often allow parents to exclude their

children from sexual health instruction for any

grounds (or no grounds) whatsoever. E.g., MD. CODE

REGS. § 13A.04.18.01(D)(2)(e)(i); N.C. GEN. STAT.

§ 115C-81.30(b); VA. CODE ANN. § 22.1-207.2. Some

States permit opt-outs only if the educational program

would conflict with the student’s or family’s religious

beliefs. E.g., IOWA CODE ANN. § 256.11(6)(a) (“pupil’s

religious belief”); KAN. ADMIN. REGS. § 91-31-35(a)(6)

(“religious teachings of the pupil”); S.C. CODE ANN.

§ 59-32-50 (“family’s beliefs”). But in many States, a

simple written notification by a parent or guardian

satisfies the opt-out criteria.

Compelling interests—especially ones invoked to

support “relatively recent” regulations of longstanding religious exercise—must have historical analogues. See, e.g., Yoder, 406 U.S. at 226–30 (analyzing

the “historical origin” of “compulsory education and

child labor laws”). These analogues must establish a

“historic and substantial” tradition that is analogous

to the restriction at issue. Espinoza, 591 U.S. at 480

(quotation marks omitted). When, by contrast, there

is a “long history” and “continue[d]” practice of other

States providing less restrictive alternatives, there is

no “basis for deference” to a government’s policy.

Ramirez, 595 U.S. at 428–29.

Here, there is a “historic[] and routine[]” consensus

on allowing parental opt-outs from sex education,

22

Ramirez, 595 U.S. at 429: Ninety percent of the States

provide parents with notice and opt-outs for instruction on human sexuality, or only have instruction on

an opt-in basis. And these policies are being implemented in large school districts around the country.

For instance, in Pennsylvania’s North Penn School

District, parents “have the right to have their children

excused from specific instruction that conflicts with

their religious beliefs.” North Penn Sch. Dist., Board

Policy

105.2,

available

at

https://tinyurl.com/drnc8vdx. In Utah’s Alpine School District,

parents can opt their children out of any “portion of

the curriculum” or “activity” that would “require the

student to affirm or deny a religious belief or right of

conscience or engage or refrain from engaging in a

practice forbidden or required in the exercise of a religious right or right of conscience.” Alpine Sch. Dist.,

Policy No. 6161 - Procedures 6.8, available at

https://tinyurl.com/3ybu8cp8. And in Wisconsin’s

Oshkosh Area School District, a school “will honor a

written request” for a child to be excused “from particular class periods” if a parent “indicates to the school

that either the content or activities conflict with

his/her religious beliefs or value system.” Oshkosh

Area Sch. Dist., Policy Manual Code po2270, available

at https://tinyurl.com/bddswfb8. There is thus no compelling interest in asserting “a categorical ban” on religious exercise that is upheld by “longstanding [regulatory] practice.” Ramirez, 595 U.S. at 430, 435.

Indeed, the School Board’s policy conflicts not only

with the longstanding consensus of the States, but

also with the law of its own State. Maryland has long

required public schools to allow opt-outs from any instruction on “family life and human sexuality.” MD.

CODE REGS. § 13A.04.18.01(D)(2)(e)(i). The School

Board cannot have a compelling interest in violating

23

Maryland law. See Nation v. San Juan Cnty., 150 F.

Supp. 3d 1253, 1269 (D. Utah 2015), aff’d sub nom.

Navajo Nation v. San Juan Cnty., 929 F.3d 1270 (10th

Cir. 2019) (A “local governing body cannot have a legitimate governmental interest in violating state

law.”).

This longstanding tradition also means that the

School Board cannot establish that its ban is the least

restrictive means available—a less restrictive means

has been implemented in over ninety percent of the

States, including Maryland. Indeed, several States

give parents opt-out rights that extend beyond sexual

education. “[S]o long as the government can achieve

its interests in a manner that does not burden religion, it must do so.” Fulton, 593 U.S. at 541. The

School Board cannot meet the least restrictive means

test unless it can explain why its “system is so different” from the dozens of other jurisdictions that accommodate religious exercise through parental opt-outs.

Holt, 574 U.S. at 367. The School Board cannot show

“why the vast majority of States” permit opt outs, “but

it cannot.” Id. at 368.

CONCLUSION

The judgment of the Fourth Circuit should be reversed.

24

March 10, 2025

Respectfully submitted,

JOHN B. MCCUSKEY

Attorney General

of West Virginia

JASON S. MIYARES

Attorney General

of Virginia

MICHAEL R. WILLIAMS

Solicitor General

Counsel of Record

ERIKA L. MALEY

Solicitor General

DARIUS J. IRAJ*

Caldwell Fellow

KEVIN M. GALLAGHER

Principal Deputy Solicitor

General

MEREDITH BAKER

*admitted in Pennsylvania;

Assistant Solicitor General

practicing under supervision of

OFFICE OF THE VIRGINIA

West Virginia attorneys

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

(304) 558-2021

mwilliams@wvago.gov

ATTORNEY GENERAL

202 North Ninth Street

Richmond, Virginia 23219

(804) 786-2071

emaley@oag.state.va.us

Counsel for Amici Curiae

the State of West Virginia and

the Commonwealth of Virginia

25

Counsel for Additional Amici States

STEVE MARSHALL

Attorney General

State of Alabama

TREG TAYLOR

Attorney General

State of Alaska

TIM GRIFFIN

Attorney General

State of Arkansas

JAMES UTHMEIER

Attorney General

State of Florida

CHRISTOPHER M. CARR

Attorney General

State of Georgia

RAÚL R. LABRADOR

Attorney General

State of Idaho

THEODORE E. ROKITA

Attorney General

State of Indiana

BRENNA BIRD

Attorney General

State of Iowa

KRIS KOBACH

Attorney General

State of Kansas

RUSSELL COLEMAN

Attorney General

Commw. of Kentucky

LIZ MURRILL

Attorney General

State of Louisiana

LYNN FITCH

Attorney General

State of Mississippi

ANDREW BAILEY

Attorney General

State of Missouri

AUSTIN KNUDSEN

Attorney General

State of Montana

MICHAEL T. HILGERS

Attorney General

State of Nebraska

DREW WRIGLEY

Attorney General

State of North Dakota

DAVE YOST

Attorney General

State of Ohio

GENTNER F. DRUMMOND

Attorney General

State of Oklahoma

26

DAVID W. SUNDAY, JR.

Attorney General

Commw. of

Pennsylvania

BRIDGET HILL

Attorney General

State of Wyoming

ALAN WILSON

Attorney General

State of South Carolina

MARTY J. JACKLEY

Attorney General

State of South Dakota

KEN PAXTON

Attorney General

State of Texas

DEREK E. BROWN

Attorney General

State of Utah