Amicus Curiae Brief — L. M., a Minor, By and Through His Father and Stepmother and Natural Guardians, Christopher and Susan Morrison, Petitioner v. Town of Middleborough, Massachusetts, et al.

No. 24-410

444444444444444444444444444444444444444444

IN THE

Supreme Court of the United States

____________________

L.M., A MINOR, BY AND THROUGH HIS FATHER AND

STEPMOTHER AND NATURAL GUARDIANS,

CHRISTOPHER AND SUSAN MORRISON,

Petitioner,

v.

TOWN OF MIDDLEBOROUGH, MASSACHUSETTS, ET AL.,

Respondents.

____________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the First Circuit

____________________

Brief Amicus Curiae of America’s Future,

Public Advocate of the United States, Public

Advocate Foundation, Free Speech Coalition,

Free Speech Defense and Education Fund, U.S.

Constitutional Rights Legal Defense Fund, and

Conservative Legal Defense and Education

Fund in Support of Petitioner

____________________

RICK BOYER

INTEGRITY LAW FIRM

P.O. Box 10953

Lynchburg, VA 24506

WILLIAM J. OLSON*

JEREMIAH L. MORGAN

WILLIAM J. OLSON, P.C.

370 Maple Ave. W., Ste. 4

Vienna, VA 22180

(703) 356-5070

wjo@mindspring.com

Attorneys for Amici Curiae

*Counsel of Record

December 20, 2024

444444444444444444444444444444444444444444

TABLE OF CONTENTS

Page

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

INTEREST OF THE AMICI CURIAE . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . 1

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

ARGUMENT

I. THE SCHOOL BOARD FAILED TO MEET ITS

BURDEN TO JUSTIFY ITS POLICY CENSORING THE

SPEECH OF STUDENTS UNDER TINKER . . . . . . . . . 5

A. The Tinker Standard . . . . . . . . . . . . . . . . . . . 5

B. Material Disruption. . . . . . . . . . . . . . . . . . . . 7

C. Applying Tinker Correctly. . . . . . . . . . . . . . . 9

II. THE MIDDLEBOROUGH SCHOOLS’ CENSORSHIP

POLICY VIOLATES THIS COURT’S

ESTABLISHMENT CLAUSE JURISPRUDENCE . . . . 10

A. Transgenderism Doctrine Is at Its Core

Religious . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

B. The Middleborough School District Has

Clearly Established One Religious View on

Transgenderism, while Suppressing Other

Views . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

ii

C. This Court Has Long Banned Proselytizing

in Government Schools . . . . . . . . . . . . . . . . 15

D. Middleborough’s Transgender

Proselytization Is Anything but Religiously

Neutral. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

III. GOVERNMENT INCREASINGLY SILENCES THOSE

WHO OPPOSE ITS ORTHODOXY . . . . . . . . . . . . . 21

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

iii

TABLE OF AUTHORITIES

Page

HOLY BIBLE

Genesis 5:2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Matthew 19:4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

CONSTITUTION

Amendment I . . . . . . . . . . . . 2, 5, 7, 10-12, 18, 19, 21

CASES

Edwards v. Aguillard, 482 U.S. 578 (1987) . . . . . 17

Engel v. Vitale, 370 U.S. 421 (1962) . . . . . . . . . . . 16

Everson v. Bd. of Education, 330 U.S. 1

(1947) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 20

Knox v. SEIU, 567 U.S. 298 (2012) . . . . . . . . . . . . 21

Lawrence v. Texas, 539 U.S. 558 (2003) . . . . . . . . 14

Lee v. Weisman, 505 U.S. 577 (1992). . . . . . . . . . . 17

McCollum v. Board of Education, 333 U.S. 203

(1948) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

New York Times Co. v. Sullivan, 376 U.S. 254

(1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Reynolds v. United States, 98 U.S. 145 (1878) . . . 19

Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290

(2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

School Dist. of Abington Twp. v. Schempp, 374

U.S. 203 (1963) . . . . . . . . . . . . . . . . . . . . . . 16, 20

Stone v. Graham, 449 U.S. 39 (1980) . . . . . . . . . . 17

Tinker v. Des Moines Independent Community

School District, 393 U.S. 508

(1969) . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 5, 7-10, 23

Wallace v. Jaffree, 472 U.S. 38 (1985) . . . . . . . 17, 20

W. Va. State Bd. of Educ. v. Barnette, 319 U.S.

624 (1943) . . . . . . . . . . . . . . . . . . . . 10, 11, 15, 23

iv

MISCELLANEOUS

J. Cahn, The Return of the Gods (Frontline:

2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

“Every Cell Has a Sex: X and Y and the Future

of Health Care,” Yale School of Medicine

(Aug. 30, 2016) . . . . . . . . . . . . . . . . . . . . . . . . . 14

T. Kristensen, “Effects of testosterone therapy

on constructs related to aggression in

transgender men: A systematic review,”

HORMONES AND BEHAVIOR, vol. 128 (Feb.

2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

J. Madison, “Memorial and Remonstrance

against Religious Assessments” (June 20,

1785) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

A. Powell, “How a hormone affects society,” The

Harvard Gazette (Sept. 17, 2021) . . . . . . . . . . . . 8

D. Root, “When the Government Declared War

on the First Amendment,” Reason (Oct. 2017) 22

M. Rothblatt, The Apartheid of Sex (Crown

Publishers: 1995). . . . . . . . . . . . . . . . . . . . . . . . . 6

K. Shah, C. MacCormack and N. Bradbury, “Do

you know the sex of your cells?” AM. J.

PHYSIOL. CELL. PHYSIOL. 306 (2014) . . . . . . . . 15

T. Wizemann and M. Pardue, Exploring the

Biological Contributions to Human Health:

Does Sex Matter? (National Academies

Press: 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

INTEREST OF THE AMICI CURIAE1

America’s Future, Public Advocate of the United

States, Public Advocate Foundation, Free Speech

Coalition, Free Speech Defense and Education Fund,

U.S. Constitutional Rights Legal Defense Fund, and

Conservative Legal Defense and Education Fund are

nonprofit organizations, exempt from federal income

tax under either section 501(c)(3) or 501(c)(4) of the

Internal Revenue Code. These entities, inter alia,

participate in the public policy process, including

conducting research, and informing and educating the

public on the proper construction of state and federal

constitutions, as well as statutes related to the rights

of citizens, and questions related to human and civil

rights secured by law.

STATEMENT OF THE CASE

In March of 2023, L.M., a 12-year-old James T.

Nichols Middle School student, wore a shirt to school

that read, “There are only two genders.” L.M. v. Town

of Middleborough, 677 F. Supp. 3d 29, 33 (Dist. Mass.

2023) (“LM I”). The student chose that message in

response to the school’s flood of messages to students

promoting the view that “sex and gender are selfdefined, limitless, and unmoored from biology.”

Petition for Certiorari (“Pet. Cert.”) at 2. The school

1

It is hereby certified that counsel of record for all parties

received timely notice of the intention to file this brief; that no

counsel for a party authored this brief in whole or in part; and

that no person other than these amici curiae, their members, or

their counsel made a monetary contribution to its preparation or

submission.

2

required him to remove the shirt. When L.M.’s father

asked the school why he had been required to remove

the shirt, school officials responded that they would

continue to prohibit L.M.’s shirt which is “‘likely to be

considered discriminatory, harassing and/or bullying

to others including those who are gender

nonconforming by suggesting that their sexual

orientation, gender identity or expression does not

exist or is invalid.’” LM I at 35.

On May 5, 2023, L.M. wore the shirt to school

again, “but with the phrase ‘ONLY TWO’ covered by a

piece of tape with the word ‘CENSORED.’” Id. at 35.

Again, the school required him to remove the shirt. Id.

L.M.’s father and stepmother brought suit on his

behalf in the District of Massachusetts, alleging

violations of his First Amendment speech rights. Id.

at 32. Noting that “a group of potentially vulnerable

students will not feel safe,” the district court ruled that

L.M. had not shown that the school had violated his

constitutional rights. Id. at 38. The district court

ruled that the school’s action “falls within the ‘invasion

of the rights of others’ framework of Tinker” v. Des

Moines Independent Community School District, 393

U.S. 508 (1969).

On appeal, the First Circuit upheld the district

court, on different grounds. Finding that the shirt

could produce a disruption of the educational

environment at the school, the First Circuit ruled that

“regardless of whether Tinker’s rights-of-others

limitation applies here, we conclude that Tinker’s

material-disruption limitation does,” and upheld the

3

district court on those grounds. L.M. v. Town of

Middleborough, 103 F.4th 854, 866 (1st Cir. 2024)

(“LM II”)

SUMMARY OF ARGUMENT

The First Circuit conducted a remarkably thorough

review of district and circuit court cases on various

types of school speech issues since Tinker. It then

synthesized those cases, and came up with an

approach which it found reasonable, but which fails to

follow, and actually circumvents Tinker, authorizing

school censorship in the absence of any real threat of

substantial disruption.

In full accord with modern transgender ideology,

the Circuit Court focused extensively on the feelings of

the “trans” students, stressing the risk that they could

injure themselves — neither of which factors

demonstrates ipse dixit substantial disruption of the

school. It may indicate that these students had deepseated emotional troubles, but so do many other

students. If the school truly wished to protect the

excessively sensitive, it would need to prohibit any

comment on clothes, facial features, manner of

speaking, academic performance, family situation, or

a host of other features which lead to critical

comments. It has often been said, children can be

cruel, and anyone who has worked in a school knows

that to be true. But here there was no cruelty and no

targeted comments. Discussion of politics or religion

could be banned by this test. Where is the line to be

drawn, other than to protect the peculiar sensitivities

of those who have fallen into Transgenderism.

4

The circuit court spoke of students “who had been

bullied based on their gender identities,” and those

“who had self-harmed, contemplated suicide, or

attempted to commit suicide ‘because of their gender

identity.’” LM II at 860. The court lauded the

motivations of the school system which was trying to

do the right thing by developing a reasonable

approach, as if those goals were synonymous with a

constitutionally permitted approach. While giving lip

service to the need of schools to permit students to

take different positions on controversial issues, the

court viewed any statement remotely critical of “trans”

ideology as hateful to those students. Even though the

statements on the shirt were not directed to anyone

particular, the court viewed them as hostile, offensive,

unwelcome, and the equivalent of harassment or

bullying. Id. at 862. The court focused on the need of

the school to make students “feel safe, supported, and

fully included.” Id. at 864. The court assumed that

any statement thought to be “demeaning” which had

“the potential for the back-and-forth of negative

comments and slogans between factions of students”

could result in disruption. Id. at 884. Well, any

disagreement on any controversial issue could lead to

“back-and-forth” which is also known as dialogue, even

if negative in nature. In the end, the court seemed

persuaded by “the reasonableness” of the school

district’s approach. Id. at 878. However, the court’s

feelings about how to protect the feelings of trans

students does not resolve the constitutional issue

presented here.

These amici also address the speech issue here in

context, demonstrating that the school is adopting one

5

viewpoint and one religious view, to the exclusion of

others.

Throughout our nation’s history, those

exercising government power are routinely tempted to

censor views of which they disapprove, and push those

views they embrace. When fads such as the Cult of

Transgenderism arise on the scene, they do not last,

and eventually society returns to normal. Until that

happens, the Courts must protect the speech of those

who displease those wielding government power.

ARGUMENT

I.

THE SCHOOL BOARD FAILED TO MEET ITS

BURDEN TO JUSTIFY ITS POLICY

CENSORING THE SPEECH OF STUDENTS

UNDER TINKER.

A. The Tinker Standard.

The First Circuit below identified the correct issue

and then accurately identified and quoted the relevant

language from the controlling Supreme Court

authority, Tinker v. Des Moines Independent

Community School District, 393 U.S. 503 (1969).

Nevertheless, it contorted Tinker, as well as various

district and circuit court cases applying it, to create a

new test, causing it to reach a profoundly incorrect

result. After analyzing several circuit courts that have

applied Tinker, the First Circuit came up with what

might be among the most convoluted legal tests ever

devised in First Amendment jurisprudence. Under

this test:

6

school officials may bar passive and silently

expressed messages by students at school

that target no specific student if: (1) the

expression is reasonably interpreted to

demean one of those characteristics of

personal identity, given the common

understanding that such characteristics are

“unalterable2 or otherwise deeply rooted” and

that demeaning them “strike[s] a person at

the core of his being” ...; and (2) the

demeaning message is reasonably

forecasted to “poison the educational

atmosphere” due to its serious negative

psychological impact on students with the

demeaned characteristic and thereby lead to

“symptoms of a sick school — symptoms

therefore of substantial disruption....” [LM

II at 873-74 (emphasis added).]

2

The court’s standard articulated here — “given the common

understanding that such characteristics are ‘unalterable or

otherwise deeply rooted’ — is deeply confusing. Is the court

discussing biological sex, which is most certainly “unalterable” or

perceived gender, which is anything but “unalterable” and “deeply

rooted”? Indeed most of the “scholarship” on transgenderism

asserts the fluid nature of gender based on transitory feelings, not

biological reality. See M. Rothblatt, The Apartheid of Sex at 16

(Crown Publishers: 1995) (“The guiding principle of

[transgenderism] is that people should be free to change, either

temporarily or permanently, the sex type to which they were

assigned since infancy. Transgenderism makes manifest the

continuum nature of sex types because even if a sex type was real

at birth, it can now be changed at will during one’s life.”

(Emphasis added.)).

7

Although Tinker clearly puts this burden of proof

on “school officials” to demonstrate to the satisfaction

of the court that there would be substantial disruption,

the First Circuit abdicated its duty to review that

finding, rather deferring to the school board, with

respect to its central “demeaning” requirement which

is referred to four times in its novel test. The court

punted on its responsibility to the First Amendment,

stating:

[w]e see little sense in federal courts taking

charge of defining the precise words that do or

do not convey a message demeaning of such

personal characteristics.... [W]e see no basis

for substituting our judgment for

Middleborough’s as to whether the Shirt

demeaned the gender identities of other

students.... [LM II at 879-80.]

In other words, whatever the school board does is fine

with the First Circuit. This explanation is well beyond

deference; it is abdication.

B. Material Disruption.

Again, the circuit court adopted the position of the

school board regarding the message on L.M.’s shirt, as

it declined to “second-guess[] Middleborough’s

assessment that there was the requisite basis for the

forecast of material disruption.” Id. at 881.

The court agreed with the school, “First, there is

the demeaning nature of the message.” Id. “Second ...

Middleborough was not acting on abstract concerns

8

about the potential impact of speech demeaning the

gender identities of some students at” the school. Id.

at 882. “Finally, precisely because the message was

reasonably understood to be so demeaning,” the First

Circuit concluded that the school could foresee the

shirt leading to “a deterioration in the school’s ability

to educate its students.” Id. (citing Nuxoll ex rel.

Nuxoll v. Indian Prairie School District, 523 F.3d 668,

672 (7th Cir. 2008)).

Notably, none of the record evidence cited by the

panel even mentions actual “disruption” of any sort,

and certainly not “substantial” or “material”

disruption. Rather, all of this supposed evidence falls

in the category that Tinker described as “the

discomfort and unpleasantness that always accompany

an unpopular viewpoint.” Tinker at 509.

All that the First Circuit was provided on which to

rely was the school’s “legitimate reason to be worried”

regarding reaction to the message on L.M.’s shirt. The

basis for the school’s forecast was never stated, but

perhaps it was a prediction that a girl who already

suffers from the mental disturbance of gender

dysphoria, who is then infused with large amounts of

testosterone which makes people more aggressive3,

3

See, e.g., A. Powell, “How a hormone affects society,” The

Harvard Gazette (Sept. 17, 2021). T. Kristensen, “Effects of

testosterone therapy on constructs related to aggression in

transgender men: A systematic review,” HORMONES AND

BEHAVIOR, vol. 128 (Feb. 2021) (“Transgender men are assigned

female sex at birth, but identify as men. The anabolic and

androgenic sex hormone testosterone has been positively

associated with aggression. Therefore, transgender men are

9

and which her entire body is not equipped to handle,

could behave violently towards others. Is that to be

the reason that the sensitivities of trans persons must

be protected, even at the expense of the rights of

others? However, if that biological fact about the

dangers of hormone therapy for girls were ever

admitted, it would counsel against any administration

of male hormones to females, which would violate

transgender ideology. Actually, the truth is that the

school has not carried its burden to demonstrate that

recognizing the biological fact of two sexes causes a

“substantial” or “material” risk of disturbances of the

educational experience.

C. Applying Tinker Correctly.

The key principles that can be drawn from Tinker

are:

•

Divisive speech is part of the “hazardous

freedom” that is “the basis of our national

strength.” Tinker, 393 U.S. at 508-09.

•

Schools cannot restrict speech based on an

“undifferentiated fear or apprehension of

disturbance.” Id. at 508.

•

To justify its restricting student speech, a

school must show that the speech would

“materially and substantially interfere with

warned of increasing aggression when initiating testosterone

therapy.” (Emphasis added.))

10

the requirements of appropriate discipline in

the operation of the school.” Id. at 509.

The Tinker standard could not be met when the

school admitted — and the First Circuit agreed — that

the school’s ban on the t-shirt was based on a

speculative “forecast of material disruption.” Here, the

school would go so far as to prevent students from

wearing a shirt with a message not directed at anyone

that could cause someone to feel embarrassed. After

all, a t-shirt “that deviates from the views of another

person may start an argument or cause a disturbance.”

Id. at 508. However, “our Constitution says we must

take this risk....” Id. The First Amendment prevents

schools from banning speech based on the

“undifferentiated fear” that comes from “[a]ny

variation of the majority’s opinion.” Id.

II. T H E

MIDDLEBOROUGH SCHOOLS’

CENSORSHIP POLICY VIOLATES THIS

COURT’S ESTABLISHMENT CLAUSE

JURISPRUDENCE.

Although the “question presented” by Petitioner

here deals only with the Free Speech Clause of the

First Amendment, the Middleborough schools’

Censorship Policy violates the Establishment Clause

as well. The transgender debate, at its core, is a

religious one, and by choosing winners or losers in that

debate, the government is imposing religion, far more

than the public school sought to do in W. Va. State Bd.

of Educ. v. Barnette, 319 U.S. 624 (1943).

11

As this Court has noted specifically in the public

school context, the First Amendment was designed to

remove government entirely from determining winners

and losers in the realm of speech, opinion, political

views, and religion. “If there is any fixed star in our

constitutional constellation, it is that no official, high

or petty, can prescribe what shall be orthodox in

politics, nationalism, religion, or other matters of

opinion or force citizens to confess by word or act their

faith therein. If there are any circumstances which

permit an exception, they do not now occur to us.”

Barnette at 642.

Whether or not to recite the Pledge of Allegiance

no doubt seems to most to have little religious

significance.

But a Jehovah’s Witness family

challenged the Pledge in Barnette, asserting that their

faith allowed them to “pledge allegiance” only to God.

This Court quite properly accepted and protected that

belief from government compulsion.

LGBTQ+ indoctrination is every bit as much a

matter of conscience and religion as any Christian

doctrine. It openly opposes and denigrates the view

that men and women are created in the image and

likeness of God.

•

•

Genesis 5:2: “Male and female he created

them, and he blessed them and named them

Man when they were created.”

Matthew 19:4: “And he answered and said

unto them, Have ye not read, that he which

made them at the beginning made them male

and female.”

12

The Middleborough school district has favored one

side of the debate, while squelching the opposing side.

If this Court’s Establishment Clause jurisprudence

prevents favoring Christian doctrine, then it most

certainly also prevents favoring trans doctrine.

A. Transgenderism Doctrine Is at Its Core

Religious.

Transgenderism is a religion with ancient pagan

religious roots. Perhaps unaware, many

transgenderism advocates have embraced what was a

foundational principle of many early pagan religious

sects. One of the “gods” of the pagan world was Ishtar,

the “goddess of war and sexual love.” See “Ishtar,”

Britannica. “An ancient Mesopotamian tablet records

... [Ishtar saying] ‘When I sit in the alehouse, I am a

woman, and I am an exuberant young man.’” J. Cahn,

The Return of the Gods (Frontline: 2022) at 118. The

goddess Ishtar had summertime festivals and parades.

“The parades of the goddess featured men dressed as

women, women dressed as men, each dressed as both,

male priests parading as women, and cultic women

acting as men. They were public pageants and

spectacles of the transgendered, the cross-dressed, the

homosexual, the intersexual, the cross-gendered.” Id.

at 181.

13

B. The Middleborough School District Has

Clearly Established One Religious View

on Transgenderism, while Suppressing

Other Views.

As the district court noted, while banning

Petitioner’s speech, “Nichols promotes messages

commonly associated with ‘LGBTQ Pride.’ ... Nichols

also observes events like ‘Pride Month,’ and ‘Pride Day’

in support of the ‘LGBTQ+ community.’ ... Nichols has

had a Gay Straight Alliance Club since at least 2018,

‘[t]o further the goal of providing support to students

who are part of the LGBTQ+ community.’” LM I at 33.

The First Circuit approvingly quoted the district

court’s assertion that “‘school administrators were well

within their discretion to conclude’ that the message

displayed on the Shirt [“There are only two genders”]

‘may communicate that only two gender identities —

male and female — are valid, and any others are

invalid or nonexistent.’” LM II at 865. The district

court noted that “students who identify differently,

whether they do so openly or not, have a right to

attend school without being confronted by messages

attacking their identities.” LM I at 38.

A slight hypothetical reframing underscores the

Establishment Clause violation here.

If

Middleborough fostered “Polytheist Pride day” or

sponsored a “Polytheist/Atheist Alliance Club” with

the goal of “providing support to students who are part

of the non-monotheist community,” but forbade

wearing of the slogan “there is only one God” because

it “may communicate that there is only one God” or

14

convey that polytheism is “invalid,” the Establishment

Clause violation would be too plain for argument. The

same principle applies here.

This Court noted in Lawrence v. Texas, 539 U.S.

558 (2003), that “[a]t the heart of liberty is the right to

define one’s own concept of existence, of meaning, of

the universe, and of the mystery of human life.” Id. at

574 (quoting Planned Parenthood of Southeastern Pa.

v. Casey, 505 U.S. 833, 851 (1992) (overruled by Dobbs

v. Jackson Women’s Health Org., 597 U.S. 215 (2022)).

A transgender message rejects a Christian’s most

intimate beliefs regarding “one’s own concept of

existence, of meaning, of the universe, and of the

mystery of human life” but is permitted in

Massachusetts.

The belief that a person can “change genders” is a

religious construct, not a scientific one. Science

recognizes that “differences between males and

females ... exist within every cell of their bodies.”4

Science recognizes that “[i]n females, the majority of

genes on one of the two X chromosomes are silenced in

every cell....

[T]here are multiple, ubiquitous

differences in the basic cellular biochemistry of males

and females that can affect an individual’s health.”5

Science admits that “physiologists ... all accept that

4

“Every Cell Has a Sex: X and Y and the Future of Health Care,”

Yale School of Medicine (Aug. 30, 2016).

5

T. Wizemann and M. Pardue, Exploring the Biological

Contributions to Human Health: Does Sex Matter? at 35

(National Academies Press: 2001).

15

there are obvious differences between males and

females” due in part to the unyieldingly dimorphic

nature of cells between males and females, men and

women.6

The idea that a person can “choose genders” is a

concept based in faith, in ideas of right and wrong, a

religious construct, not science. And government may

not endorse and establish the pagan religious

construct of transgenderism while silencing the

Biblical belief that there are only two genders.

C. Th is

Court

Has

Lon g Ban n ed

Proselytizing in Government Schools.

Under this Court’s jurisprudence, when

compulsory public schools affirm some religious beliefs

while disparaging others, as the Middleborough

schools brazenly do here, an Establishment Clause

violation occurs. This Court has been clear that

simply putting the imprimatur of the state in favor

of one religious belief over another, is sufficient to

create the violation. Consider this Court’s long line

of cases to that effect:

•

6

In West Virginia State Board of Education v.

Barnette, 319 U.S. 624 (1943), this Court

banned government schools compelling

children to salute the flag and pledge

allegiance regardless of the particular

K. Shah, C. MacCormack and N. Bradbury, “Do you know the

sex of your cells?” AM. J. PHYSIOL. CELL. PHYSIOL. 306, C-3, C-4

(2014).

16

•

•

•

religious views of the child or the sincerity

with which they are held.

In McCollum v. Board of Education, 333 U.S.

203 (1948), the Court stated that compulsory,

tax-supported public schools could not enable

sectarian groups to give religious instruction

to public school students in public school

buildings.

In Engel v. Vitale, 370 U.S. 421 (1962), the

Court ruled that students in government

schools could not be required to recite an

official state prayer, even if students may

remain silent or be excused, and the prayer

was denominationally neutral.7

In School Dist. of Abington Twp. v. Schempp,

374 U.S. 203 (1963), the Court ruled that

school boards many not require passages from

the Bible to be read or the Lord’s Prayer to be

recited, even if students may be excused

from attending or participating.8

7

“Neither the fact that the prayer may be denominationally

neutral nor the fact that its observance on the part of the

students is voluntary can serve to free it from the limitations

of the Establishment Clause,” this Court ruled. Engel at 430

(emphasis added). “[I]t is no ... business of government to

compose official prayers for any group of the American people to

recite.” Id. at 425.

8

“Any child shall be excused from such Bible reading ... upon the

written request of his parent or guardian.” Abington at 205. “The

fact that some pupils ... might be excused ... does not mitigate the

obligatory nature of the ceremony for [the state law]

unequivocally requires the exercises to be held every school day.”

Id. at 210-211.

17

•

•

•

•

In Stone v. Graham, 449 U.S. 39 (1980), the

Court prohibited posting a copy of the Ten

Commandments purchased with private

contributions on the wall of school classrooms.9

In Wallace v. Jaffree, 472 U.S. 38 (1985), the

Court struck down a state law authorizing a

one-minute period of silence in public schools

for meditation and voluntary prayer.

In Edwards v. Aguillard, 482 U.S. 578 (1987),

this Court struck down a Louisiana law

requiring public schools that taught the theory

of evolution to also teach the theory of

creation.10

In Lee v. Weisman, 505 U.S. 577 (1992),

including clergy to offer prayers at a public

school graduation ceremony was found to

violate the Establishment Clause.

9

“If the posted copies of the Ten Commandments are to have any

effect at all, it will be to induce the schoolchildren to read,

meditate upon, perhaps to venerate and obey, the

Commandments.... [T]his ... is not a permissible state objective

under the Establishment Clause.” Stone v. Graham at 42. “It

does not matter that ... the Ten Commandments are financed by

voluntary private contributions, for the mere posting of the copies

... provides the ‘official support of the State ... Government’

that the Establishment Clause prohibits....” Id. at 42

(emphasis added).

10

The Court ruled that “the Act ... has the ... purpose of

discrediting evolution by counterbalancing its teaching ... with the

teaching of creationism.” Id. at 589. The Court declared that the

purpose of the Establishment Clause is to ensure that

“Government [does] not intentionally endorse religion or

a religious practice.” Id. at 587 (emphasis added).

18

•

In Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S.

290 (2000), this Court struck down a policy

permitting student-initiated, student-led

prayer at graduations and football games,

although the prayers were required to be

“nonsectarian” and “non-proselytizing.”

Indeed, in Everson v. Bd. of Education, 330 U.S. 1

(1947), this Court stressed that the First Amendment

“requires the state to be a neutral in its relations

with groups of religious believers and non-believers.”

Id. at 18 (emphasis added). This Court famously

declared that:

The “establishment of religion” clause of the

First Amendment means at least this....

Government can[not] ... pass laws which aid

one religion, aid all religions, or prefer one

religion over another....

[Id. at 15

(emphasis added).]

In dissent, Justice Jackson provided important

context relevant to the Middleborough Censorship

Policy, noting that “[o]ur [modern] public school ... is

a relatively recent development dating from about

1840. It is organized on the premise that secular

education can be isolated from all religious

teaching so that the school can ... maintain a

strict and lofty neutrality as to religion.” Everson

at 23-24 (Jackson, J., dissenting) (emphasis added).

Unfortunately, history shows that the Everson Court

and Justice Jackson’s dissent were overly optimistic in

believing that “secular education [could be] isolated

from all religious teaching,” or be “neutral.” Certainly,

19

teaching transgenderism as a moral good is not purely

a secular matter, but also a religious doctrine.

In 1878, this Court adopted James Madison’s

definition of “religion” as “the duty we owe the

Creator.” Reynolds v. United States, 98 U.S. 145, 163

(1878). In his Memorial and Remonstrance Against

Religious Assessments, Madison defined “religion” as

“the duty which we owe to our Creator and the manner

of discharging it,” and “the duty of every man to render

to the Creator such homage and such only as he

believes to be acceptable to him.”11

Teaching that transgenderism is to be celebrated,

is a religious proposition. Since the teaching of a protransgenderism curriculum constitutes religious

teaching, it must be barred under this Court’s

Establishment Clause Jurisprudence.

D. M i d d l e b o r o u g h ’ s T r a n s g e n d e r

Proselytization Is Anything but

Religiously Neutral.

Middleborough “promotes messages commonly

associated with ‘LGBTQ Pride.’”

LM I at 33.

Middleborough “also observes events like ‘Pride

Month,’ and ‘Pride Day’ in support of the ‘LGBTQ+

community.’” Id. Middleborough clearly takes the

position that homosexuality and transgenderism are

affirmative moral goods. “Straight Pride” apparently

is not a moral good, nor is the “cisgender community”

11

J. Madison, “Memorial and Remonstrance against Religious

Assessments” (June 20,1785).

20

one Middleborough targets for “support.”

Middleborough’s activism for its preferred speech and

suppression of Petitioner’s contrary belief that “there

are only two genders” takes it out of the realm of

Everson’s “neutral” status. Middleborough is telling

students that the state disapproves of their beliefs and

will silence them as “harmful,” “detrimental” and

“psychological attacks.” LM II at 869.

Contrast Middleborough’s approach with this

Court’s earlier statement in 1985 when it struck down

an Alabama statute authorizing public school teachers

to hold a moment of silence for “meditation or

voluntary prayer.” This Court ruled that “whenever

the State itself speaks on a religious subject, one of the

questions that we must ask is whether the

government intends to convey a message of

endorsement or disapproval of religion.” Wallace

at 60-61 (emphasis added). Here, the Middleborough

schools actively “convey a message of disapproval,”

that Petitioner’s speech is, as the First Circuit put it,

“especially incendiary,” and “poison [in] the

educational atmosphere.” LM II at 873-874. The

Middleborough schools actively serve as Dunphy’s

“ardent fundamentalists,” agitating for “Pride Day”

and “Pride Month,” while banning the scientifically

accurate message that “there are only two genders.”

Middleborough’s promotion of one religious belief over

another is blatant.

Abington promised that “[t]he government is

neutral, and, while protecting all, it prefers none, and

it disparages none.” Abington at 215. Middleborough

schools’ policy utterly destroys Abington’s promise and

21

effects an unconstitutional establishment of religion

under this Court’s Establishment Clause

jurisprudence.

This Court should grant certiorari in order to

strike down the Middleborough schools’ censorship

policy as a violation of both the Free Speech and

Establishment Clauses of the First Amendment.

III. GOVERNMENT INCREASINGLY SILENCES

THOSE WHO OPPOSE ITS ORTHODOXY.

The methods used by governments seeking to

silence those with opposing viewpoints may vary

depending on whether that power is that of a

Washington, D.C. regulatory agency or a local school

district, but the First Amendment should protect

Americans from abuses from all levels of government.

As Justice Alito explained in Knox v. SEIU, 567 U.S.

298 (2012):

The First Amendment creates “an open

marketplace” in which differing ideas about

political, economic, and social issues can

compete freely for public acceptance without

improper government interference.... The

government may not prohibit the

dissemination of ideas that it disfavors,

nor compel the endorsement of ideas that

it approves. [Id. at 309 (emphasis added)

(citations omitted).]

The inclination of government officials to suppress

the speech of those with different political views has

22

existed since the country was founded. In 1798, the

Sedition Act made it a crime, punishable by a $5,000

fine and five years in prison, to “‘write, print, utter or

publish ... any false, scandalous and malicious ...

writings against the government ... with intent to

defame ... or to excite against them ... the hatred of the

good people of the United States.’”12 Twenty-five

people were prosecuted under the Act, only 10

convicted, and all those were pardoned by President

Jefferson.

A century later, during World War I, President

Woodrow Wilson pushed through Congress his own

Sedition Act which “made it illegal to ‘convey

information with intent to interfere with the operation

or success of the armed forces of the United States or

to promote the success of its enemies.’ That sweeping

language effectively criminalized most forms of

anti-war speech.”13 Wilson threatened: “‘If there

should be disloyalty, it will be dealt with with a firm

hand of repression.’” Id. (emphasis added). The Act

carried a sentence of up to 20 years in prison, but was

repealed after the end of the war.

With the passage of another century, a new

generation of government officials have again

manifested the desire to weaponize government power

to squelch speech that challenges today’s trendy moral

12

See New York Times Co. v. Sullivan, 376 U.S. 254, 273-274

(1964).

13

D. Root, “When the Government Declared War on the First

Amendment,” Reason (Oct. 2017).

23

principles. There are reasons to believe that the tide

is turning on the transgender issue, the pendulum is

swinging back, and common sense is being restored.

However, until then, as long as power is being used to

censor disfavored speech in government schools, the

assistance of the judiciary is needed to stop such

overreach. As this Court has recognized, “It can

hardly be argued that either students or teachers shed

their constitutional rights to freedom of speech or

expression at the schoolhouse gate.” Tinker at 506.

“That [government schools] are educating the young

for citizenship is reason for scrupulous protection of

Constitutional freedoms of the individual, if we are not

to strangle the free mind at its source and teach youth

to discount important principles of our government as

mere platitudes.” Barnette at 637.

CONCLUSION

The Petition for Certiorari should be granted.

Respectfully submitted,

RICK BOYER

WILLIAM J. OLSON*

INTEGRITY LAW FIRM JEREMIAH L. MORGAN

P.O. Box 10953

WILLIAM J. OLSON, P.C.

Lynchburg, VA 24506 370 Maple Ave. W., Ste. 4

(703) 356-5070

wjo@mindspring.com

*Counsel of Record

Attorneys for Amici Curiae

December 20, 2024