Amicus Curiae Brief — Joseph Miller, et al., Petitioners v. James V. McDonald, Commissioner, New York State Department of Health, et al.

Supreme Court briefAug 20, 2025

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No. 25-133

In the

Supreme Court of the United States

JOSEPH MILLER, ET AL.,

Petitioners,

JAMES V. MCDONALD, COMMISSIONER, NEW YORK

STATE DEPARTMENT OF HEALTH, ET AL.,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

BRIEF OF AMICI CURIAE PARENTAL RIGHTS

FOUNDATION AND THE WAGNER CENTER

IN SUPPORT OF PETITIONERS

August 20, 2025

WILLIAM WAGNER

Counsel of Record

GREAT LAKES JUSTICE CENTER

5600 West Mount Hope Hwy.

Lansing, MI 48917

(517) 643-1765

Prof.WWJD@gmail.com

Counsel for Amici Curiae

QUESTION PRESENTED

For more than 50 years, New York permitted both

medical and religious exemptions to its school vaccine

requirement. But in 2019, the New York Legislature

categorically eliminated religious exemptions.

Sponsors of that law denigrated “fake” and “garbage”

religious beliefs that they deemed “selfish and

misguided.” But they kept in place a regime of medical

exemptions. And they continued to permit

nonvaccination of nonstudents (such as teachers) and

children outside of school. Today in New York, if a

vaccine would harm your lungs, you may be exempted;

but if it would harm your soul, you may not.

This makes New York an outlier. Forty-six other

States (and the District of Columbia) allow religious

exemptions to their school vaccine requirements.

In this case, New York imposed existential

penalties on three Old Order Amish schools for failing

to require vaccines that violate their sincerely held

religious beliefs. These private schools are in rural

Amish communities on private Amish land and are

attended only by Amish children. The Second Circuit

invoked Employment Division v. Smith, 494 U.S. 872

(1990), to find that New York’s law did not violate the

Free Exercise Clause as applied to the Amish.

The questions presented are:

1. Whether a law that categorically disallows

religious exemptions but permits secular exemptions

and other comparable secular activity violates the

Free Exercise Clause as applied to these Amish

parents and schools.

2. Whether Smith should be reconsidered.

iii

TABLE OF CONTENTS

QUESTION PRESENTED ........................................ i

TABLE OF CONTENTS .........................................iii

TABLE OF AUTHORITIES .................................... iv

STATEMENT OF IDENTITY AND INTEREST

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

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

ARGUMENT ............................................................. 5

THIS COURT SHOULD GRANT THE

PETITION TO REVISIT SMITH AND

RESTORE

FULL

FUNDAMENTAL

RIGHT STATUS TO THE INALIENABLE

LIBERTY PROTECTED BY THE FIRST

AMENDMENT ................................................. 5

Context ..................................................... 7

Employment

Division

Smith

Erroneously Diminished the Free

Exercise of Religious Conscience as a

Fundamental Inalienable Right .............. 8

This Court's Precedents Point Toward

Fully Restoring the Free Exercise of

Religious Conscience as an Unalienable

Fundamental Right, Justifying Strict

Scrutiny -- Especially when a State

Infringes on the Liberty of Parents to

Direct the Religious Upbringing of

Their Children ........................................ 15

CONCLUSION ....................................................... 25

TABLE OF AUTHORITIES

Cases

Cantwell v. Connecticut, 310 U.S. 296 (1940) ......... 5

Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520 (1993) .......................... 9, 16

City of Boerne v. Flores, 521 U.S. 507 (1997) ........ 13

Doe v. San Diego Unified Sch. Dist., 19 F.4th

1173 (9th Cir. 2021) .............................................. 6

Employment Division v. Smith, 494 U.S. 872

(1990) .......................................................... 3-14, 24

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

(1947) ..................................................................... 5

Fulton v. City of Philadelphia, 593 U.S. 522

(2020) ............................. 6, 9, 10, 11, 12, 16, 17, 23

Gitlow v. New York, 268 U.S. 652 (1925)................. 5

Gonzales v. O Centro Espirita Beneficente Uniao

do Vegetal, 546 U.S. 418 (2006) .......................... 13

Holder v. Humanitarian Law Project, 561 U.S. 1

(2010) ................................................................... 16

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

(2022) ............................................................... 3, 17

Lowe v. Mills, 68 F.4th 706 (1st Cir. 2023) ............. 6

Masterpiece Cakeshop, LTD. v. Colorado Civil

Rights Commission, 584 U.S. 617 (2018) ........... 16

Midrash Sephardi, Inc. v. Surfside, 366 F.3d

1214 (11th Cir. 2004)............................................. 6

Miller et al. v. McDonald et al., No. 24-681

(2d Cir. 2025) ................................................. 6, 7, 8

Mitchell County v Zimmerman, 810 N.W.2d 1

(Iowa 2012) ............................................................ 6

Monclova Christian Academy v. Toledo-Lucas

County Health Department, 984 F.3d 477 (6th

Cir. 2020) ............................................................... 6

Sherbert v. Verner 374 U.S. 398 (1963) ............. 8, 13

Reed v. Town of Gilbert, Ariz., 576 U.S. 155

(2015) ................................................................... 16

Spivack v. City of Philadelphia, 109 F.4th 158

(3d Cir. 2024) ......................................................... 6

Tandon v. Newsom, 593 U.S. 61 (2021) ................. 17

West Virginia Bd. of Ed. v. Barnett, 319 U.S.

624 (1943) ............................................................ 15

Wisconsin v. Yoder, 406 U.S. 205

(1972) ........................... 8, 13, 18, 19, 20, 21, 22, 23

Constitutional Provisions

U.S. Const. amend. I ...... 3-7, 9, 10, 12-17, 19, 21, 24

U.S. Const. amend. XIV ........................... 5, 7, 18, 19

Free Exercise Clause ...................... 4, 8, 9, 10, 11, 13

Rules

Sup. Ct. R. 37 ............................................................ 1

Sup. Ct. R. 37(2) ....................................................... 1

STATEMENT OF IDENTITY

AND INTEREST OF AMICI CURIAE

Pursuant to Supreme Court Rule 37, Amici Curiae,

Parental Rights Foundation and the Wagner Center

submit this brief.1

The Parental Rights Foundation (PRF) is a

national,

nonprofit,

nonpartisan

advocacy

organization with supporters in all fifty states. The

PRF is concerned about the erosion of the legal

protection of loving and fit parents to raise, nurture,

and educate their children without undue state

interference. The PRF is committed to protecting

children by preserving the liberty of their parents. It

advances this mission by educating public officials and

the broader public about the urgent need to reverse

intrusive state policies that have, in many cases,

caused more harm than benefit to children. The PRF

also works to strengthen fundamental parental rights

at all levels of government.

Housed on the campus of Spring Arbor University,

the Wagner Center serves as a national academic

voice for freedom of thought, conscience, and religion.

Most importantly for this case, the Wagner Center

1 Pursuant to Rule 37(2), Amici curiae gave 10-days’ notice of its

intent to file this brief to all counsel. Amici Curiae further state

that no counsel for any party authored this brief in whole or in

part, and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person or entity, other than Amici curiae, its members or its

counsel, made a monetary contribution to the preparation or

submission of this brief.

works to preserve the religious freedom of parents to

direct and control the upbringing of their children and

is a leading voice in this area.

Amici Curiae hold a significant interest in the

preservation of constitutional rights. Amici Curiae

have special knowledge helpful to this Court in this

case, about the inalienable fundamental nature of a

parent's right to direct and control the religious

upbringing of their children.

SUMMARY OF THE ARGUMENT

This Court should grant the Petition for a Writ of

Certiorari because significant confusion exists among

the federal courts as to how much protection the

Constitution affords citizens when a state circumvents

constitutional limits on its power by substantially

infringing on their religious liberty in a neutral and

generally applicable way.

The First Amendment to the United States

Constitution prohibits governmental infringement on

the free exercise of religion and religious expression.

U.S. Const. amend. I. The writers of the First

Amendment did not say “make no law prohibiting the

free exercise of religion, unless you can find an

unelected state regulatory regime or federal judge to

say the law is neutral and generally applicable.”

Indeed, instead, the Framers of the First Amendment

doubly protected freedom of religious conscience.

Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 523,

540 (2022).

In Employment Division v. Smith, this Court

drifted away from its constitutional jurisprudence

that recognized freedom of religion as an inalienable

First Amendment fundamental liberty interest. 494

U.S. 872 (1990). Even though the government’s action

in Smith substantially infringed on the free exercise of

religious liberty, Smith required no justification by the

government for its conduct. To reach this radical

result, Smith deemed neutral laws of general

applicability excepted from the constitutional

protection contra-expressed in the plain language of

the Free Exercise Clause. Smith did so despite a

dearth of any supporting jurisprudence deeply rooted

in our Nation’s history and traditions, or implicit in

the concept of ordered liberty.

Unless a State affirmatively acts to restore

fundamental right status to the free exercise of

religious conscience, Smith, as a practical matter,

denudes any meaningful constitutional protection for

religious liberty as a limit on the exercise of the State’s

power.

This case provides this Court with an opportunity

to overrule Smith and dispel the confusion among the

federal courts by confirming that the First

Amendment demands strict scrutiny of government

actions infringing on fundamental inalienable

religious liberty of citizens (e.g., as applied here, to

direct and control the religious upbringing of their

children)

ARGUMENT

I. THIS COURT SHOULD GRANT THE

PETITION TO REVISIT SMITH AND

RESTORE FULL FUNDAMENTAL RIGHT

STATUS TO THE INALIENABLE LIBERTY

PROTECTED BY THE FIRST AMENDMENT.

Ratified in 1791, the First Amendment to the

United States Constitution provides that “Congress

shall make no law respecting the establishment of

religion or prohibiting the free exercise thereof; or

abridging the freedom of speech ....” U.S. Const.

amend I. This Court holds liberty protected by the

First Amendment applicable to the States via the

Fourteenth Amendment. Cantwell v. Connecticut, 310

U.S. 296, 303 (1940) (Free Exercise); Gitlow v. New

York, 268 U.S. 652, 666 (1925) (Free Speech); Everson

v. Board of Education, 330 U.S. 1, 8 (1947).

Although the language in the First Amendment

includes no exemption for laws the government labels

as “neutral” or “generally applicable,” Employment

Division v. Smith wrongly held that it does. 494 U.S.

872 (1990).

Whether government authorities can

unconscionably (and unconstitutionally) burden a

person’s free exercise of their religious conscience via

neutral and generally applicable lawmaking, is an

important question this Court ought to revisit; this

case provides the opportunity for the Court to correct

its wrongly decided precedent in Smith.

The tyrannical applications of Smith extend far

beyond the context of this case. Here, prohibiting

religious accommodations while permitting secular

exemptions, a state infringed on parents’ First

Amendment religious liberty to direct and control the

religious upbringing of their children. Elsewhere,

under the guise of neutral and generally applicable

lawmaking, state regimes increasingly trample

religious conscience with impunity.

Moreover, significant confusion exists among the

federal courts, due to Smith, as to how much

protection the Constitution affords citizens when

government substantially infringes on their First

Amendment religious liberty by prohibiting religious

accommodations while permitting secular exemptions.

Contrast, Miller et al. v. McDonald et al., No. 24-681

(2nd Cir. 2025); Spivack v. City of Philadelphia, 109

F.4th 158, 172-73 (3d Cir. 2024); and Doe v. San Diego

Unified Sch. Dist., 19 F.4th 1173, 1177-78 (9th Cir.

2021)

(subjecting to rational basis review, under

Smith's neutral and generally applicable rule,

exercises of government power barring religious

exemptions while permitting secular exemptions),

with Lowe v. Mills, 68 F.4th 706, 709 (1st Cir. 2023);

Monclova Christian Academy v. Toledo-Lucas County

Health Department, 984 F.3d 477, 479 (6th Cir. 2020);

Midrash Sephardi, Inc. v. Surfside, 366 F.3d 1214,

1232, 1234-35 (11th Cir. 2004); (subjecting to strict

scrutiny, as falling outside of Smith's neutral and

generally applicable rule, exercises of government

power barring religious exemptions while permitting

secular exemptions); See also, Mitchell County v

Zimmerman, 810 N.W.2d 1, 4-6 (Iowa 2012) (same).

And see, Fulton v. City of Philadelphia, 593 U.S. 522,

545 (2020) (Alito, J., concurring in the judgment)

This case provides this Court with an opportunity

to overrule Smith and dispel the confusion among the

federal courts by confirming that the First

Amendment demands strict scrutiny of government

actions infringing on fundamental inalienable

religious liberty of citizens (e.g., as applied here, to

direct and control the religious upbringing of their

children)

A. Context

The State of New York amended its "school

immunization law" in 2019 to prohibit religious

accommodations while providing for secular medical

exemptions. Miller, No. 24-681 at 3 (2nd Cir. 2025).

Amish parents and others maintain the government

action here "infringes on their free exercise rights

under the First and Fourteenth Amendments" and

"that the law is unconstitutional because it impairs

Amish parents' right to control the religious

upbringing of their children...." Id. at 3-4.

Amici maintain: 1) that the First Amendment right

to the Free Exercise of religious conscience protects

the fundamental inalienable religious liberty of

citizens (e.g., to direct and control the religious

upbringing of their children); and 2) that government

conduct infringing on this liberty ought to receive

strict scrutiny – where government must demonstrate

that its policy advances interests of the highest order

and is narrowly tailored to achieve those interests. We

contend this is especially so when, as here,

government forbids religious accommodations while

permitting secular exemptions in a way that infringes

upon a parents' right to direct and control the religious

upbringing of their children.

Instead of applying strict scrutiny to New York's

action infringing religious liberty, the appellate court,

following Smith, applied mere rational basis review.

Miller, No. 24-681 at 10-23, 23-28 (2nd Cir. 2025).

B. Employment

Division

Smith

Erroneously

Diminished

the

Free

Exercise of Religious Conscience as a

Fundamental Inalienable Right.

Reflecting an accurate historical understanding of

the plain meaning of the Free Exercise Clause, this

Court, in Sherbert v. Verner and Wisconsin v. Yoder,

struck down government actions that substantially

interfered with a person’s sincerely held religious

beliefs. Sherbert, 374 U.S. 398 (1963) (denying

unemployment benefits to a person who lost her job

when she did not work on her Sabbath); Yoder, 406

U.S. 205 (1972) (overturning convictions for violations

of State compulsory school attendance laws

incompatible with sincerely held religious beliefs).

Under these decisions, a person’s inalienable

right to the free exercise of religious conscience

appropriately required government to provide a

compelling interest to justify its interfering with such

a fundamental liberty interest; this Court, in applying

strict scrutiny to the government actions, further

required the government to show it used the least

restrictive means available to accomplish its interest.

Id. at 215 (holding "only those interests of the highest

order and those not otherwise served can overbalance

legitimate claims to the free exercise of religion"); See

also, Fulton, 593 U.S. at 541 (2020).

In Employment Division v. Smith, this Court

departed from its constitutional jurisprudence

recognizing freedom of religion as a fundamental

liberty interest protected by the First Amendment.

494 U.S. 872 (1990). Even though the government’s

action in Smith substantially infringed on the free

exercise of religious liberty, Smith required no

justification by the government for its conduct. To

reach this radical result, Smith deemed neutral laws

of general applicability excepted from the

constitutional protection contra-expressed in the clear

and plain language of the Free Exercise Clause.2

Smith did so despite a dearth of any supporting First

Amendment jurisprudence deeply rooted in our

nation’s history and traditions, or implicit in the

concept of ordered liberty.

Justice Alito, concurring in Fulton, joined by

Justices Thomas and Gorsuch, correctly recognized

that:

2 Cf. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,

508 U.S. 520 (1993) (applying strict scrutiny to a law

substantially infringing on religious liberty when, in the

subjective view of the reviewer, the law is not a neutral law of

general applicability). Given that the law in the case at bar

primarily, if not exclusively, burdens religious conscience and

expression, strong arguments exist that it is not a neutral law of

general applicability.

[Smith] abruptly pushed aside nearly 30 years

of precedent and held that the First

Amendment’s Free Exercise Clause tolerates

any rule that categorically prohibits or

commands specified conduct so long as it does

not target religious practice. Even if a rule

serves no important purpose and has a

devastating effect on religious freedom, the

Constitution, according to Smith, provides no

protection. This severe holding is ripe for

reexamination.

Fulton, 593 U.S. at 545 (2020) (Alito, J., Thomas, J.,

and Gorsuch, J. concurring); see also, Justice Barrett,

concurring in Fulton, joined by Justice Kavanaugh,

documenting that “the textual and structural

arguments against Smith are more compelling.” Id. at

543.

Indeed, Smith’s rule diverges drastically from the

protections afforded to religious practice during the

founding period. When “important clashes between

generally applicable laws and the religious practices

of particular groups” occurred, “colonial and state

legislatures were willing to grant exemptions—even

when the generally applicable laws served critical

state interests.” Id. at 582.

Under the original understanding of the Free

Exercise Clause, the Constitution protected a person

against government actions violating the person’s

religious conscience. Thus, even when a generally

applicable law, such as taking an oath or military

conscription, interfered with religious conscience, the

First Amendment provided protection. Id. at 582-583.

The accommodation for religious conscience during

the revolutionary war “is especially revealing because

during that time the Continental Army was

periodically in desperate need of soldiers, the very

survival of the new Nation often seemed in danger,

and the Members of Congress faced bleak personal

prospects if the war was lost. Yet despite these stakes,

exemptions were granted.” Id. at 583-584. In the face

of a highly compelling governmental interest (the

survival of the nation) and the presence of a generally

applicable neutral law (military conscription), the

willingness of the founders to grant exemptions based

on religious conscience demonstrates how extensively

the Free Exercise Clause was meant to protect

religious conscience. “In sum, based on the text of the

Free Exercise Clause and evidence about the original

understanding of the free exercise right, the case for

Smith fails to overcome the more natural reading of

the text. Indeed, the case against Smith is very

convincing.” Id. at 594.

Undeniably, the only real limit on religious liberty

during the founding period, according to the

constitutions and laws of the States, was whether

conduct would endanger ‘“the public peace” or

“safety.”‘ Id. at 575.

These words had precise

meanings during the founding period. Peace meant,

“1. Respite from war. . . . 2. Quiet from suits or

disturbances. . . . 3. Rest from any commotion.

4. Stillness from riots or tumults. . . . 5. Reconciliation

of differences. . . . 6. A state not hostile. . . . 7. Rest;

quiet; content; freedom from terror; heavenly rest. . .

.” While Safety was understood as “1. Freedom from

danger. . . . 2. Exemption from hurt. 3. Preservation

from hurt. . . .” Id. at 579 (citations omitted).

In comparison to the very specific meaning of the

“public-peace-or-safety” carveouts limiting the free

exercise of religion during the founding period, the

Smith test inappropriately restricts the free exercise

of religion under “neutral and generally applicable”

laws.

Unsurprisingly, therefore, in response to Smith,

Congress enacted the Religious Freedom Restoration

Act (RFRA), 42 U.S.C. § 2000bb, et seq. The act

expressly provides that:

Government shall not substantially burden a

person’s exercise of religion, even if the burden

results from a rule of general applicability,

[unless] … it demonstrates that application of

the burden to the person— (1) is in furtherance

of a compelling governmental interest; and

(2) is the least restrictive means of furthering

that compelling governmental interest.

42 U.S.C. § 2000bb-1.

In promulgating the RFRA, Congress correctly

acknowledged: “the framers of the Constitution,

recognizing free exercise of religion as an unalienable

right, secured its protection in the First Amendment

to the Constitution.” 42 U.S.C. § 2000bb(a)(1).

Congress stated the purpose of the legislation was:

(1) to restore the compelling interest test as set

forth in Sherbert v. Verner and Wisconsin v.

Yoder, and to guarantee its application in all

cases where free exercise of religion is

substantially burdened; and (2) to provide a

claim or defense to persons whose religious

exercise is substantially burdened by

government.

42 U.S.C. § 2000bb(b)(1)-(2).

Although this Court upheld the RFRA as applied

to federal government actions, Gonzales v. O Centro

Espirita Beneficente Uniao do Vegetal, 546 U.S. 418

(2006), it also held Congress acted outside the scope of

its constitutional authority as applied to the states,

City of Boerne v. Flores, 521 U.S. 507 (1997). Thus,

notwithstanding the plain language of the Free

Exercise Clause, and despite Congress’ attempt to

statutorily reinstate an accurate understanding of the

correct constitutional standard, Smith wrongly

continues to allow State authorities to substantially

interfere with the free exercise of religious conscience

and expression. Consequently, unless a State

affirmatively acts to restore fundamental right status

to the free exercise of religion, Smith extinguishes

critical constitutional limits on the exercise of the

State’s power. Given our nation’s history, and the

history of those who have fled to our shores, the

framers rightly made religious liberty our First

Liberty. For only as long as this Court preserves the

freedom of conscience protected under the First

Amendment, will our other freedoms remain secure.

This Court, therefore, ought to grant the Petition,

revisit, and reverse Smith.

The school immunization law in the case at bar, as

well as other so-called neutral anti-discrimination

laws, exacerbate the threat to the free exercise of

religious conscience.

These government actions

necessarily require Christian people to: 1) relinquish

their religious identity; and 2) surrender their right to

freely exercise and express their religious conscience.

State enforcement of “neutral” political preferences

often weaponize State action to eliminate the First

Amendment as important constitutional constraint on

the exercise of State authority. Indeed, since Smith,

religious people in our nation face a far more horrific

predicament than the drafters and ratifiers of the

Constitution and Bill of Rights could ever have

imagined.3

3 This is so, for example, in any regulated profession where the

government, in a neutral and generally applicable way,

recharacterizes religious conscience and expression as the

regulation of professional conduct.

C. This Court's Precedents Point Toward

Fully Restoring the Free Exercise of

Religious Conscience as an Unalienable

Fundamental Right, Justifying Strict

Scrutiny -- Especially when a State

Infringes on the Liberty of Parents to

Direct the Religious Upbringing of Their

Children.

“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.” West Virginia Bd. of Ed. v. Barnette, 319 U.S.

624, 642 (1943). Bearing witness to the intolerant

laws of seventeenth century England that persecuted

individuals because of their religious conscience, the

First Amendment balances the need for freedom of

religious conscience with the need of a well-ordered

central government. See, e.g., Mark A. Knoll, A

History of Christianity in the United States and

Canada 25-65 (1992); F. Makower, The Constitutional

History and Constitution of the Church of England 6895 (photo. reprt. 1972) (1895). The First Amendment

embodies an ideal that is uniquely American—that

true liberty exists only where men and women are free

to hold and express conflicting political and religious

conscience. Under this aegis, the government must

not interfere with its citizens living out and expressing

their freedoms but embrace the security and liberty

only a pluralistic society affords. That is why the First

Amendment protects exercise of a religious person’s

conscience, subjecting a State to the strictest of

scrutiny if it substantially interferes. See, e.g.,

Masterpiece Cakeshop, LTD. v. Colorado Civil Rights

Commission, 584 U.S. 617, 663-64 (2018) (Thomas, J.,

concurring) (noting, the necessity of applying “the

most exacting scrutiny” in a case where Colorado’s law

penalized religious expression of cake designer) citing

Texas v. Johnson, 491 U.S. 397, 412 (1989); accord,

Holder v. Humanitarian Law Project, 561 U.S. 1, 28

(2010); see also, Reed v. Town of Gilbert, Ariz., 576

U.S. 155, 164 (2015).

The writers of the First Amendment did not say

“make no law prohibiting the free exercise of religion,

unless you can find state regulatory regime or federal

judge to say the law is neutral and generally

applicable.”

In Fulton a government law interfering with the

free exercise of religious conscience included "a

mechanism for individualized exemptions." 593 U.S.

522, 533 (2021). Fulton confirmed that when First

Amendment religious liberty is at stake under such

circumstances:

A government policy can survive strict

scrutiny only if it advances “interests of the

highest order” and is narrowly tailored to

achieve those interests. Lukumi, 508 U.S. at

546 (internal quotation marks omitted). Put

another way, so long as the government can

achieve its interests in a manner that does not

burden religion, it must do so.

Fulton, 593 U.S. at 541 (2020).

While the government action in Fulton was held not

generally applicable, nothing in the Court’s holding

suggests the fundamental nature of the constitutional

protection ought to diminish where it is.

In Tandon v. Newsom, this Court likewise applied

strict scrutiny to a state law that treated "comparable

secular activity more favorably than religious

exercise." 593 U.S. 61, 62-65 (2021) (holding that

"strict scrutiny requires the State to further interests

of the highest order by means narrowly tailored in

pursuit of those interests").

Subsequently, in Kennedy, this Court confirmed

that the First Amendment "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 through ‘the performance of (or abstention

from) physical acts.’” Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507, 524 (2022) (citation omitted). Kennedy

further confirmed that “…[a] natural reading” of the

First Amendment leads to the conclusion that “the

Clauses have complementary purposes” where

constitutional protections “work in tandem,” doubly

protecting a person’s religious conscience. Id.at 523,

533. Kennedy reaffirmed the application of strict

scrutiny to government action interfering with

religious conscience where the government policy is

"specifically directed at religious practice." Id.at 525527 (cleaned up).

In the case at bar, New York's school immunization

law is especially egregious because it substantially

infringes upon fundamental religious liberty of

parents directing and controlling the religious

upbringing of their children.4

See over a century of precedents affirming the inalienable

nature of this fundamental right: Meyer v. Nebraska, 262 U.S.

390 (1923) (striking down state law making it unlawful to teach

any subject in languages other than English); Pierce v. Soc'y of

Sisters, 268 U.S. 510 (1925) (striking down an Oregon law

requiring children between 8 and 16 to attend only public

schools); Prince v. Massachusetts, 321 U.S. 158 (1944)

(recognizing parental rights); Wisconsin v. Yoder, 406 U. S. 205,

218 (1972) (reaffirming the fundamental nature of parental

rights under both the First and Fourteenth Amendments);

Washington v. Glucksberg, 521 U.S. 702 (1997) (recognizing

parental rights as fundamental while finding no fundamental

right to assisted suicide); Troxel v. Granville, 530 U.S. 57 (2000)

(plurality opinion)(recognizing fundamental nature of parental

rights); See also, Board of Education v. LaFleur, 414 U.S. 632,

639-640 (1974) (confirming "freedom of personal choice in

matters of marriage and family life" as constitutionally protected

liberties); Moore v. East Cleveland, 431 U.S. 494, 503-504 (1977)

(holding that "the institution of the family is deeply rooted in this

Nation’s history and tradition."; Smith v. Organization of Foster

Families, 431 U.S. 816, 845 (1977) (documenting the

fundamental nature of liberty associated with family matters as

deeply rooted in history and tradition of the American nation,

predating even the Bill of Rights); Quilloin v. Walcott, 434 U.S.

246, 255 (1978) (confirming that "the relationship between

parent and child is constitutionally protected"); Stanley v.

Illinois, 405 U.S. 645, 651 (1978) (reaffirming the fundamental

nature of parental rights); Parham v. J. R., 442 U.S. 584, 602-604

(1979) (reaffirming the fundamental nature of parental rights,

rejecting "any notion that a child is the mere creature of the

State"); Santosky v. Kramer, 455 U.S. 745, 753, 760 (1982)

(reaffirming “[t]he fundamental liberty interest of natural

parents in the care, custody, and management of their child);

Reno v. Flores, 507 U.S. 292, 303-304 (1993) (confirming that

parental rights must be respected as a constitutional limit on the

exercise of state power, even if nonparents think they would do a

Here, the proposed rule, masquerading as a

neutral law, effectively eliminates the ability of

parents to raise their children consistent with their

religion. Moreover, the school immunization law seeks

to compel these parents to engage in activity

conflicting with it. The disturbing diminishment of

First Amendment religious conscience protection, as a

practical

matter,

denudes

any

meaningful

constitutional protection for liberty as a limit on the

exercise of State power.

This Court in Wisconsin v. Yoder, decisively

confirmed the fundamental nature of parental rights

under both the First and Fourteenth Amendments.

406 U.S. 205 (1972) (confirming "the fundamental

interest of parents" in overturning convictions of

Amish citizens convicted of violating a state

compulsory attendance statute).

The Yoder Court reasoned,

“[t]he values of parental direction of

the religious upbringing and education of

their children in their early and

formative years have a high place in our

better job making decisions for a child than the child’s parents);

And see, John Locke, Second Treatise of Civil Government, 1690,

Sec. 56, Sec. 63. (stating authority "to govern the minority of their

children" rests with parents); 1 W. Blackstone, Commentaries *

447; 2 J. Kent, Commentaries on American Law * 190

(recognizing that natural bonds of affection lead parents to act in

the best interest of the children); Wagner, Revisiting Divine,

Natural, and Common Law Foundations Underlying Parental

Liberty to Direct and Control the Upbringing of Children, 5 W.

Australian Jurist 1 (2014).

society … this case involves the

fundamental interest of parents, as

contrasted with that of the State, to

guide the religious future and education

of their children. The history and culture

of Western civilization reflect a strong

tradition of parental concern for the

nurture and upbringing of their children.

This primary role of the parents in the

upbringing of their children is now

established beyond debate as an

enduring American tradition.” Yoder,

406 U.S. at 213-214, 232.

After affirming the inalienable nature of the

parental rights, Yoder made clear that government

actions infringing on this constitutional liberty must

face strict scrutiny:

The essence of all that has been said

and written on the subject is that only

those interests of the highest order and

those not otherwise served can

overbalance legitimate claims to the free

exercise of religion. We can accept it as

settled, therefore, that, however strong

the State's interest in universal

compulsory education, it is by no means

absolute

the

exclusion

subordination of all other interests. Id. at

215.

The reason for this high-level of constitutional

protection cannot be overstated. As in Yoder, the

Amish parents here sincerely hold "a fundamental

belief that salvation requires life in a church

community separate and apart from the world and

worldly influence," including, in this case, abstaining

from vaccines. Id. at 210. At stake in this case,

therefore, is the parents' "own salvation and that of

their children." Id. at 209

In Mahmoud v. Taylor, No. 24-297, slip op. (U.S.

June 27, 2025) this Court reaffirmed the longstanding

recognition of parental rights as fundamental and

application of strict scrutiny to government actions

infringing on this inalienable liberty. See generally,

supra note 4.

Mahmoud reasserted the lesson in Yoder that "[a]

government burdens the religious exercise of parents

when it requires them to submit to [a policy] that

poses “a very real threat of undermining” the religious

beliefs and practices that the parents wish to instill.

Mahmoud, No. 24-297, slip op. at 1-2 quoting, Yoder,

406 U. S. at 218.

In Mahmoud, the State of Maryland “introduced a

variety of LGBTQ+ inclusive storybooks into the

elementary school curriculum.” Id. The government

mandated attendance of children and refused to notify

parents. Id. Relying on Yoder, the parents there

contended the government’s no parental notification /

no opt out policy “infringed on their right as parents

to the free exercise of their religion” in violation of the

First Amendment. Id at 14.

Based on the record before it, this Court agreed:

We hold that the Board’s introduction

of the “LGBTQ+-inclusive” storybooks—

combined with its decision to withhold

notice to parents and to forbid opt outs—

substantially

interferes

with

the

religious development of their children

and imposes the kind of burden on

religious exercise that Yoder found

unacceptable. Id. at 21-22

Relying on Yoder, the Mahmoud Court stated:

Here, the Board requires teachers to

instruct young children using storybooks

that explicitly contradict their parents’

religious views, and it encourages the

teachers to correct the children and

accuse them of being “hurtful” when they

express a degree of religious confusion.

Such instruction “carries with it

precisely the kind of objective danger to

the free exercise of religion that the First

Amendment was designed to prevent.”

Yoder, 406 U. S. at 218. (cleaned up)

Mahmoud, No. 24-297, slip op. at 26

Mahmoud confirmed that “when a law imposes a

burden of the same character as that in Yoder, strict

scrutiny is appropriate” even if the “law is neutral or

generally applicable.” Id. at 36 In Mahmoud,

the board’s policies, like the

compulsory-attendance requirement in

Yoder, substantially interfered with the

religious development of the parents’

children. And those policies pose a very

real threat of undermining the religious

beliefs and practices that the parents

wish to instill in their children. Id. at 37

(cleaned up).

Because the burden in Mahmoud was “of the exact

same character as the burden in Yoder,” the Court

applied strict scrutiny to the government action. Id.

The Court then reaffirmed that “[t]o survive strict

scrutiny, a government must demonstrate that its

policy advances interests of the highest order and is

narrowly tailored to achieve those interests.” Id.,

citing, Fulton, 593 U. S. at 541. Under this standard

of review, the Court found Maryland’s action

unconstitutional.

Mahmoud acknowledged a century of U.S.

Supreme Court precedents firmly establishes that the

Constitution protects the right of a parent to direct

and control the religious upbringing of their children

as a fundamental right. As such, government

infringement of such inalienable liberty requires

judicial review using a strict scrutiny analysis where

government must demonstrate that its policy

advances interests of the highest order and is

narrowly tailored to achieve those interests.

Notwithstanding the deeply rooted legal history

and tradition affirming parents' religious liberty

rights as fundamental, significant jurisprudential

confusion exists among the federal courts. Reflecting

this division, federal appellate courts, as outlined in

the Petition, continue to split over how to decide these

kinds of issues. This case provides an opportunity for

this Court to resolve the significant jurisprudential

disagreement evident in these Circuit splits. It should

do so now, since predictability in the law is necessary

for good governance under the Rule of Law, especially

during times of cultural discord.

Consistent judicial decisions, grounded in honest

interpretation, give government officials and others

notice of what is prohibited. When it comes to judicial

review of government action and constitutional

provisions, consistent decisions provide predictability

for officials seeking to act in accordance with

constitutional standards. Inconsistent judicial

precedents lead to unpredictability in the law,

providing no beneficial guidance for government

officials or others trying to act within the law.

Mahmoud reaffirmed the fundamental nature of

religious liberty under the First Amendment (i.e., to

direct and control the religious upbringing of one's

children). Amici requests this Court finish the

jurisprudential task by granting the Petition and

overruling Smith.

CONCLUSION

For the foregoing reasons, Amici Curiae urge this

Court to grant the Petition for a Writ of Certiorari.

Respectfully submitted,