Amicus Curiae Brief — Elizabeth Mirabelli, et al., Applicants v. Rob Bonta, Attorney General of California, et al.

IN THE

Supreme Court of the United States

________________

No. 25A810

________________

ELIZABETH MIRABELLI, et al.,

Applicants,

v.

ROB BONTA, in his official capacity as Attorney General of California, et al.,

Respondents.

________________

On Emergency Application to Vacate Interlocutory Stay Order Issued by

the United States Court of Appeals for the Ninth Circuit

________________

BRIEF AMICUS CURIAE OF

AMERICA’S FUTURE, CITIZENS UNITED,

PUBLIC ADVOCATE OF THE U.S., PUBLIC ADVOCATE FDN.,

U.S. CONSTITUTIONAL RIGHTS LEGAL DEFENSE FUND,

ONE NATION UNDER GOD FOUNDATION,

FITZGERALD GRIFFIN FOUNDATION,

RESTORING LIBERTY ACTION COMMITTEE, AND

CONSERVATIVE LEGAL DEFENSE AND EDUCATION FUND

IN SUPPORT OF APPLICANTS

________________

MICHAEL BOOS

Washington, D.C. 20005

JOSEPH W. MILLER

Fairbanks, AK 99708

JAMES N. CLYMER

Lancaster, PA 17603

J. MARK BREWER

Johnson City, TX 78636

RICK BOYER

Lynchburg, VA 78636

WILLIAM J. OLSON*

JEREMIAH L. MORGAN

WILLIAM J. OLSON, P.C.

370 Maple Avenue West, Suite 4

Vienna, VA 22180-5615

(703) 356-5070

Fax (703) 356-5085

wjo@mindspring.com

*Counsel of Record

Attorneys for Amici Curiae

January 21, 2026

i

TABLE OF CONTENTS

Page

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

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

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

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT

I.

THE PARENTAL EXCLUSION POLICY IS UNCONSTITUTIONAL UNDER YODER

AND MAHMOUD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

A.

Principles Drawn from Mahmoud v. Taylor . . . . . . . . . . . . . . . . . . . . . 7

B.

Principles Drawn from Wisconsin v. Yoder . . . . . . . . . . . . . . . . . . . . . . 8

II.

THE FREE EXERCISE CLAUSE PROVIDES MUCH BROADER PROTECTIONS

THAN THE NINTH CIRCUIT UNDERSTANDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

III.

CALIFORNIA’S PARENTAL EXCLUSION POLICY ALSO VIOLATES THE

ESTABLISHMENT CLAUSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

A.

Transgenderism Is at Its Core Religious . . . . . . . . . . . . . . . . . . . . . . . 13

B.

This Court Has Long Banned Proselytizing in Government

Schools. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

C.

Defendants’ Transgender Agenda Is Not Neutral toward

Religion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

ii

TABLE OF AUTHORITIES

Page

HOLY BIBLE

Genesis 1:27-28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 17

Matthew 19:4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Mark 10:6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Ephesians 4:25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Ephesians 6:4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

CONSTITUTION

Amendment I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 19

STATE CONSTITUTION

Constitution of Virginia, Section 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

STATUTES

Virginia Declaration of Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Act for Establishing Religious Freedom (Oct. 31, 1785). . . . . . . . . . . . . . . . . . . 11, 12

CASES

Abington School District v. Schempp, 374 U.S. 203 (1963) . . . . . . . . . . . . . . . . 18, 22

Edwards v. Aguillard, 482 U.S. 578 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Engel v. Vitale, 370 U.S. 421 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Everson v. Bd. of Education, 330 U.S. 1 (1947) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Lee v. Weisman, 505 U.S. 577 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Mahmoud v. Taylor, 606 U.S. 522 (2025) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-8, 14

McCollum v. Board of Education, 333 U.S. 203 (1948) . . . . . . . . . . . . . . . . . . . . . . 18

Parents Protecting Our Children v. Eau Claire Area Sch. Dist.,

145 S. Ct. 14 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Pierce v. Society of Sisters, 268 U. S. 510 (1922). . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

Reynolds v. United States, 98 U.S. 145 (1879) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-12

Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) . . . . . . . . . . . . . . . . . . . . . . 19

Stone v. Graham, 449 U.S. 39 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Torcaso v. Watkins, 367 U.S. 488 (1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

Wallace v. Jaffree, 472 U.S. 38 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Welsh v. United States, 398 U.S. 333 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) . . . . . 8, 18

Wisconsin v. Yoder, 406 U.S. 205 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 8, 9

MISCELLANEOUS

“Ishtar,” Britannica . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

J. Cahn, The Return of the Gods (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

iii

S. Cho, C. Laub & S. Wall, “Beyond the Binary: A Tool Kit for Gender Identity

Activism in Schools,” Gay Straight Alliance Network (2004) . . . . . . . . . . . . 21

R. George, “Gnostic Liberalism,” First Things (Dec. 2016) . . . . . . . . . . . . . . . . 15, 16

I. Haworth, “How trans activism became the new religion of the left,”

New York Post (Mar. 18, 2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

K. Hayes, “Gender Ideology’s True Believers” Quillette (May 19, 2022). . . . . . . . . 17

J. Madison, “Memorial and Remonstrance” to the Honorable General Assembly

of the Commonwealth of Virginia (June 20, 1785) . . . . . . . . . . . . . . . . . . . . 11

C. Paglia, Free Women, Free Men: Sex, Gender, Feminism (2018) . . . . . . . . . . . . 22

T. Romano, “Laverne Cox: ‘I Absolutely Consider Myself a Feminist,’” Dame

Magazine (June 1, 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

G. Sanchez, “Unearthing Mesopotamia’s Forgotten Past: The Vibrant

Intersection of Religion and LGBTI+ Diversity” . . . . . . . . . . . . . . . . . . . 14, 15

“School Success and Opportunity Act (Assembly Bill 1266) Frequently Asked

Questions,” California Department of Education (last reviewed:

February 29, 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

J. Tanis, Transgender: Theology, Ministry and Communities of Faith (2003) . . . . 16

INTEREST OF THE AMICI CURIAE1

Amici curiae America’s Future, Citizens United, Public Advocate of the

United States, Public Advocate Foundation, U.S. Constitutional Rights Legal

Defense Fund, One Nation Under God Foundation, Fitzgerald Griffin Foundation,

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. Restoring Liberty Action Committee is an educational

organization. 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. Some of these amici have filed amicus briefs in this Court in cases addressing

similar issues. See Parents Protecting v. Eau Claire Area School District, Wisconsin,

No. 23-1280, Brief Amici Curiae of America’s Future, et al. (July 8, 2024);

Mahmoud v. Taylor, No. 24-297, Brief Amici Curiae of America’s Future, et al. (Oct.

16, 2024) and Brief Amici Curiae of America’s Future, et al. (Mar. 10, 2025).

STATEMENT OF THE CASE

In January 2016, the California Department of Education (“CDE”)

promulgated a Legal Advisory together with an accompanying list of FAQs,

instructing local school districts as to how California’s anti-discrimination statutes

1

It is hereby certified 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

should be applied to schoolchildren identifying as “transgender.” The FAQs page

instructed that “schools must consult with a transgender student to determine who

can or will be informed of the student’s transgender status, if anyone, including the

student’s family.” Further, that “schools are required to respect the limitations that

a student places on the disclosure of their transgender status, including not sharing

that information with the student’s parents” except in the “very rare” situations

where “there is a specific and compelling ‘need to know.’”2

Teachers “were presented with a list of seven students transitioning genders,

six of whose parents were unaware.... Their school required them to use one set of

names and pronouns in class and another when calling parents.” Application for

Stay (“App.”) at 2 (footnote omitted). California’s actions were challenged by two

teachers, Elizabeth Mirabelli and Lori Ann West, from the Escondido Union School

District (“EUSD”). Mirabelli v. Olson, 691 F. Supp. 3d 1197 (S.D. Cal. 2023)

(“Mirabelli I”). Believing “this constituted systematic deception [and] forced [them]

to lie to parents,” the teachers challenged the guidelines, raising both free speech

and free exercise challenges. App. at 2.

The defendants are the president and members of the EUSD Board of

Education, the president and members of the California State Board of Education,

2

“School Success and Opportunity Act (Assembly Bill 1266) Frequently

Asked Questions,” California Department of Education (last reviewed: Feb. 29,

2024).

3

the state superintendent of public instruction, and the California Attorney General.

Mirabelli v. Olson, 761 F. Supp. 3d 1317, 1321 (S.D. Cal. 2025) (“Mirabelli II”)

The district court granted a preliminary injunction against the guidelines on

Free Exercise grounds. The court found that “EUSD has not demonstrated a

narrowly tailored policy, tailored so as not to unnecessarily impinge on the

plaintiffs’ free exercise rights.” Thus, the plaintiffs were likely to succeed on the

merits. Mirabelli I at 1218. The court also found that the plaintiffs met the other

factors for injunctive relief. Id. at 1219.

As the case progressed, other teachers and two sets of parents joined the suit

as co-plaintiffs. Mirabelli II at 1321 n.1. After the additional plaintiffs joined, the

defendants moved to dismiss under Rule 12(b)(6). With regard to the parents, the

district court ruled that “the long-recognized federal constitutional rights of parents

must preponderate and a claim that school policies trench on parents’ rights states

a plausible claim for relief.” Id. at 1332-33. Regarding the teachers, the court ruled

that “the non-disclosure policies substantially burden their First Amendment right

to the free exercise of religion.” Id. at 1333.

In October 2025, the district court permitted certification of a class consisting

of all “employees who object to complying with Parental Exclusion Policies” and all

“legal guardians who object to having Parental Exclusion Policies applied against

them and have children who are attending California public schools.” Mirabelli v.

Olson, 350 F.R.D. 138, 143 (S.D. Cal. 2025) (“Mirabelli III”).

4

Later that month, the district court granted summary judgment and entered

a permanent injunction in favor of plaintiffs. The court ruled that “Such state

education policies [as the Parent Exclusion Policy] substantially interfere with the

First Amendment rights of parents to direct the religious upbringing of their

children.” Mirabelli v. Olson, 2025 U.S. Dist. LEXIS 264381, at *60 (S.D. Cal. 2025)

(“Mirabelli IV”).

The court further found that “religious teachers face an unlawful choice

between sacrificing their faith and sacrificing their teaching position.... ‘[W]hen a

regulated party cannot comply with both federal and state directives, the

Supremacy Clause tells us the state law must yield.’” Id. at *78-79. Accordingly,

the district court granted summary judgement to all plaintiffs.

The defendants then requested a stay pending appeal, which the court

denied. Mirabelli v. Olson, 2025 U.S. Dist. LEXIS 269580 (S.D. Cal. 2025).

Days later, the Ninth Circuit granted an administrative stay. Mirabelli v.

Bonta, 2025 U.S. App. LEXIS 33773 (9th Cir. 2025). The Ninth Circuit then

converted the administrative stay into a stay pending appeal, ruling that the

district court erred in finding in favor of the parents’ substantive due process rights.

Mirabelli v. Bonta, 2026 U.S. App. LEXIS 403 (9th Cir. 2026).

SUMMARY OF ARGUMENT

Only seven months ago, in Mahmoud v Taylor, 606 U.S. 522 (2025), this

Court affirmed the authority of parents to decide whether their children would be

5

subjected to a LGBTQ curriculum. It was confirmed that parents are entitled to

know what their children would be taught and given the right to “opt-out.” Here,

the Ninth Circuit has sanctioned a decision by the California State school system

that strips parents of the right to know that their children are questioning their

sexual identity, and authorizes the school system to deceive the parents of such

children. As discussed below, the Ninth Circuit has entered an order that could be

viewed as open defiance of Mahmoud; Pierce v. Society of Sisters, 268 U. S. 510

(1922); Wisconsin v. Yoder, 406 U.S. 205 (1972), as well as other decisions of this

Court. California is in open violation of not just the Free Exercise rights of parents

and their children, but violates the Establishment Clause as it actually establishes

transgenderism, a doctrine with ancient pagan religious roots, requiring this

Court’s intervention.

ARGUMENT

I.

THE PARENTAL EXCLUSION POLICY IS UNCONSTITUTIONAL

UNDER YODER AND MAHMOUD.

California’s attempt to seize control of the most intimate moral decisions of

children from their parents, and not only transfer these decisions to the school but

also conceal them from the parents, is an egregious assault on Free Exercise. As

Judge Benitez explained in Mirabelli IV:

Long before Horace Mann advocated in the 1840’s for a system of

common schools and compulsory education, parents have carried out

their rights and responsibility to direct the general and medical care

and religious upbringing of their child. “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

6

parents in the upbringing of their children is now established beyond

debate as an enduring American tradition.” Wisconsin v. Yoder, 406

U.S. 205, 232 ... (1972). It is a right and a responsibility that parents

still hold. [Mirabelli IV at *5.]

Last year in Mahmoud, this Court reaffirmed its view in Pierce v. Society of

Sisters, 268 U.S. 510 (1922), where this Court had enunciated the historic “liberty of

parents and guardians to direct the upbringing and education of children under

their control.” Id. at 534-35.

“The fundamental theory of liberty upon which all governments in this

Union repose,” the Court explained, “excludes any general power of the

State to standardize its children by forcing them to accept instruction

from public teachers only.” ... The Court rejected the premise that the

child was merely a “creature of the State”; rather, “those who nurture

him and direct his destiny have the right, coupled with the high duty,

to recognize and prepare him for additional obligations.” [Mahmoud at

586 (quoting Pierce at 535) (Thomas, J., concurring) (emphasis added)].

California’s Parental Exclusion Policy constitutes a direct frontal assault by

the state on that fundamental liberty of parents. And the Ninth Circuit’s decision is

a rejection of this Court’s warning in Mahmoud. Perhaps when this Court recently

declined certiorari in Parents Protecting Our Children v. Eau Claire Area Sch. Dist.,

145 S. Ct. 14 (2024), the Ninth Circuit felt emboldened to restrict Mahmoud to its

facts, just as the Fourth Circuit in Mahmoud tried to do to this Court’s Yoder

decision. This Court should go beyond vacating the stay, and should instead grant

certiorari before judgment, vacate, and remand with directions to strike down

California’s Parental Exclusion Policy.

7

A.

Principles Drawn from Mahmoud v. Taylor.

Last year, this Court recognized the Free Exercise rights of parents against

contrary transgender teachings in schools:

The practice of educating one’s children in one’s religious beliefs, like

all religious acts and practices, receives a generous measure of

protection from our Constitution.... And this is not merely a right to

teach religion in the confines of one’s own home. Rather, it extends to

the choices that parents wish to make for their children outside the

home.... [T]he right of parents “to direct the religious upbringing of

their” children would be an empty promise if it did not follow those

children into the public school classroom. [Mahmoud at 547.]

Mahmoud broke no new ground, as this Court noted that:

“[w]e have long recognized the rights of parents to direct ‘the religious

upbringing’ of their children.” Espinoza v. Mont. Dept. of Revenue, 591

U.S. 464, 486 ... (2020) ... And we have held that those rights are

violated by government policies that “substantially interfer[e] with the

religious development” of children. Id. at 218.... Such interference, we

have observed, “carries with it precisely the kind of objective danger to

the free exercise of religion that the First Amendment was

designed to prevent.” [Mahmoud at 546 (emphasis added).]

The Ninth Circuit paid no attention to this Court’s warning against an

“alarmingly narrow rule” that sees “the Free Exercise Clause’s guarantee as

nothing more than protection against compulsion or coercion to renounce or

abandon one’s religion.” Id. at 558.

In the district court, “[t]he State Defendants argue[d] that their policies do

not amount to government coercive ... or restraining conduct, so they do not offend

the Constitution.” Mirabelli IV at *25. The Circuit Court seemed to agree, despite

this Court having instructed in Mahmoud:

8

[w]e reject this chilling vision of the power of the state to strip

away the critical right of parents to guide the religious

development of their children. Yoder and Barnette3 embody a very

different view of religious liberty, one that comports with the

fundamental values of the American people. [Mahmoud at 559

(emphasis added).]

By denying parents information as to what the child does while in the care of

the state, the Ninth Circuit removed the power of choice from parents. The state

arrogantly assumes that it cares more about children than their parents do, but

then leaves the consequences for the parents to live with, as teachers and

counselors come and go while parents remain. As Applicants point out, “the schools’

facilitation of a secret gender transition for young children, which may have

permanent and life-altering consequences, is orders of magnitude worse than

the burdens imposed in Mahmoud and Yoder.” App. at 19.

As this Court made clear: “[a] classroom environment that is welcoming to

all students is something to be commended, but such an environment cannot be

achieved through hostility toward the religious beliefs of students and their

parents.” Mahmoud at 568.

B.

Principles Drawn from Wisconsin v. Yoder.

Applicants have amply demonstrated that the challenged policy violates the

Free Exercise Clause, based on the application here of the following principles

drawn from Yoder:

3

West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).

9

•

Parents have special authority to control the education of their

children, even when attending government schools, on matters which

violate religious beliefs and morals, and particularly with respect to

impressionable and vulnerable young children (Yoder at 211-14);

•

Compulsory education laws, combined with school support of “gender

transitions” without parents’ knowledge, subject young children to

education at odds with the family’s religious views (id. at 211); and

•

California’s actions substantially interfere with the rights of parents to

their free exercise of religion (id. at 218-19).

Yoder clearly established that the religious upbringing of children is at the

core of the freedoms protected by the Free Exercise Clause. The Yoder parents

shared the concerns of Applicants here:

object[ing] to the high school, and higher education generally, because

the values they teach are in marked variance with Amish values

and the Amish way of life; they view secondary school education as an

impermissible exposure of their children to a “worldly” influence in

conflict with their beliefs. [Yoder at 210-11 (emphasis added).]

In Yoder, it was not a coercive requirement to change beliefs that offended

the Free Exercise Clause, but a requirement to expose children to “worldly”

religious values “at marked variance” with those of the parents. And, as here, the

Yoder Court understood that forced high school attendance “places Amish children

in an environment hostile to Amish beliefs.” Id. at 211 (emphasis added).

10

II.

THE FREE EXERCISE CLAUSE PROVIDES MUCH BROADER

PROTECTIONS THAN THE NINTH CIRCUIT UNDERSTANDS.

Although some seem to believe that, so long as a person can pray and

worship in his own way, the Free Exercise Clause is satisfied, the free exercise of

religion is actually a jurisdictional barrier on the authority of government to

intrude on an area of life where duties are owed only to God — a barrier here

breached by the state.

The First Amendment provides that “Congress shall make no law ...

prohibiting the free exercise [of religion].” The Free Exercise Clause embodies

James Madison’s revolutionary ideal that government has no jurisdiction or

authority whatsoever to indoctrinate Americans with respect to matters of

conscience, as they are duties owed only to God, such as their view of

transgender issues.

In Reynolds v. United States, 98 U.S. 145 (1879), this Court also viewed the

Virginia Declaration of Rights as the ideological precursor to the Free Exercise

Clause. Id. at 162-63. Noting that “‘religion’ is not defined in the Constitution,”

this Court looked to the definition in the Declaration of Rights. See id. Section 16

of the Declaration of Rights declared that religion is:

the duty which we owe to our Creator, and the manner of

discharging it, can be directed only by reason and conviction,

not by force or violence. [Constitution of Virginia, Section 16,

reprinted in ABA Foundation, Sources of Our Liberties (1978) at 312

(emphasis added).]

11

The Reynolds Court recognized that “religion” was exactly as Madison

defined it, a subject area that “was not within the cognizance of civil government.”

Reynolds at 163. The Court explained that this jurisdictional principle was

detailed in James Madison’s Memorial and Remonstrance, submitted to the

Virginia Assembly in 1785, some nine years after the Declaration of Rights, in

support of Thomas Jefferson’s Bill for Establishing Religious Freedom. Quoting

from the Declaration, Madison wrote these words:

[W]e hold it for a fundamental and undeniable truth, “that Religion or

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

discharging it, can be directed only by reason and conviction, not

by force or violence.” [citing the Virginia Declaration of Rights.]

The Religion then of every man must be left to the conviction and

conscience of every man; and it is the right of every man to exercise

it as these may dictate.... We maintain therefore that in matters of

Religion, no man’s right is abridged by the institution of Civil

Society and that Religion is wholly exempt from its cognizance.4

Four months later, the General Assembly passed Jefferson’s “Act for

Establishing Religious Freedom.” In the preamble, as the Reynolds Court noted,

this same jurisdictional principle was reaffirmed. See Reynolds at 163. The

preamble read:

Whereas Almighty God hath created the mind free; that all attempts

to influence it by temporal punishments or burthens, or by

civil incapacitations ... are a departure from the plan of the Holy

author of our religion, who being Lord both of body and mind, yet chose

4

J. Madison, “Memorial and Remonstrance” to the Honorable General

Assembly of the Commonwealth of Virginia (June 20, 1785), reprinted in 5 The

Founders’ Constitution at 82 (item # 43) (P. Kurland & R. Lerner, eds., U. of Chi.:

1987) (emphasis added) (hereinafter The Founders’ Constitution).

12

not to propagate it by coercions on either, as was in his Almighty

power to do....5

Accordingly, the Reynolds Court incorporated Madison’s definition of

“religion” as the best expression of the intent of the Framers of the Free Exercise

Clause.

While the Ninth Circuit may view its policy on so-called transgender

students as being purely secular, for the reasons discussed in Section III, infra,

transgenderism is a set of teachings on moral topics falling squarely in the area of

conscience and religious belief. The Parental Exclusion Policy prefers the state’s

favored religious beliefs above those not only of parents and children who follow the

traditional religions of Christianity and Islam, for example, but also of many who

follow no organized religion, including agnostics and atheists. The Free Exercise of

Religion does not protect religious people; rather, it protects a sphere of our

lives — termed “religion” — from any governmental intrusion. That area of

“religion” describes all matters that are matters of conscience — such as our view of

moral issues — which are areas where no government may proselytize or coerce.

As this Court has recognized, even those who do not accept the traditional

idea of a “God” may nonetheless have beliefs that are religious in nature. “Among

religions in this country which do not teach what would generally be considered a

belief in the existence of God are Buddhism, Taoism, Ethical Culture, Secular

5

Act for Establishing Religious Freedom (Oct. 31, 1785), reprinted in 5 The

Founders’ Constitution at 84 (item #44) (emphasis added).

13

Humanism and others.” Torcaso v. Watkins, 367 U.S. 488, 495 n.11 (1961)

(emphasis added).

If an individual deeply and sincerely holds beliefs that are purely

ethical or moral in source and content but that nevertheless impose

upon him a duty of conscience..., those beliefs certainly occupy in the

life of that individual “a place parallel to that filled by ... God” in

traditionally religious persons.... [H]is beliefs function as a religion in

his life.... [Welsh v. United States, 398 U.S. 333, 340 (1970).]

III.

CALIFORNIA’S PARENTAL EXCLUSION POLICY ALSO VIOLATES

THE ESTABLISHMENT CLAUSE.

Although the parties and the courts below focused on the Free Exercise

Clause, this case requires the Court’s intervention because California’s policy also

violates 80 years of this Court’s Establishment Clause jurisprudence. If this Court’s

Establishment Clause jurisprudence prevents teaching Christian doctrine against

transgender doctrine, then it most certainly also prevents schools from inculcating

transgender doctrine, particularly behind the backs of parents.

A.

Transgenderism Is at Its Core Religious.

It is a core principle of Christianity that mankind was created in the image of

God, and was created in two binary sexes which are not interchangeable, for the

specific purpose of reproducing and continuing the species.

•

Genesis 1:27-28: “So God created man in his own image, in the image

of God created he him; male and female created he them. And God

blessed them, and God said unto them, Be fruitful, and multiply, and

replenish the earth, and subdue it.”

Jesus Himself answered any suggestion that God’s design might somehow be

mutable by human wish:

14

•

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.”

•

Mark 10:6: “But from the beginning of creation, ‘God made them male

and female.’”

The Bible’s view of transgenderism is clear. It is a denial of God’s created

order and purposes.

Transgenderism also assaults the beliefs of Islam, as the Mahmoud plaintiffs

noted, by “encourag[ing] young children to question their sexuality and gender ...

and to dismiss parental and religious guidance on these issues.” Mahmoud at 540.

But transgenderism itself also has ancient religious roots. Many of its

proponents have embraced what was a foundational principle of early pagan

religions. 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 (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.

The worship of Inanna/Ishtar played a significant role in ancient

Mesopotamian society. Temples dedicated to her were centers of

cultural and religious life, where her followers sought her favor and

guidance. In these sacred spaces, individuals from all walks of life

15

came together, transcending social hierarchies and gender norms. It

was within the realm of Inanna/Ishtar’s worship that diverse

expressions of gender and sexuality found acceptance and celebration.

The presence of ... individuals who existed outside the traditional

male-female binary, within the temples of Inanna/Ishtar is a

testament to the inclusivity of her worship and the recognition of

gender diversity in ancient Mesopotamia.6

Transgenderism also has roots in the ancient religious belief of Gnosticism.

As Princeton Professor Robert George notes, ancient Gnosticism:

was an understanding of the human being ... that sharply divides the

material or bodily, on the one hand, and the spiritual or mental or

affective, on the other. For Gnostics, it was the immaterial, the

mental, the affective that ultimately matters. Applied to the human

person, this means that the material or bodily is inferior — if not a

prison to escape, certainly a mere instrument to be manipulated to

serve the goals of the “person,” understood as the spirit or mind or

psyche.7

Following in this Gnostic tradition, transgenderism believes that “no

dimension of our personal identity is truly determined biologically. If you feel as

though you are a woman trapped in a man’s body, then you are just that: a

(‘transgender’) woman.” Id.

[F]or the neo-Gnostic, the body serves at the pleasure of the conscious

self, to which it is subject, and so mutilations and other procedures

pose no inherent moral problem.... At the same time, the neo-Gnostic

insists that surgical and even purely cosmetic changes aren’t necessary

for a male to be a woman (or a female a man). The body and its

appearance do not matter, except instrumentally. Since your body is

not the real you, your (biological) sex and even your appearance need

not line up with your “gender identity.” [Id.]

6

G. Sanchez, “Unearthing Mesopotamia’s Forgotten Past: The Vibrant

Intersection of Religion and LGBTI+ Diversity,” Pride.

7

R. George, “Gnostic Liberalism,” First Things (Dec. 2016).

16

Christianity rejects both ancient Gnosticism and its modern descendant

transgenderism. “Christianity’s rejection of body-self dualism answered the

challenge to orthodoxy posed by what was known as ‘Gnosticism.’” Id. To

transgenderism, Gnosticism’s modern iteration, Christianity counters that “[i]f we

are body-mind (or body-soul) composites and not minds (or souls) inhabiting

material bodies, then respect for the person demands respect for the body, which

rules out mutilation and other direct attacks on human health.” Id.

Numerous transgender advocates have put their beliefs into Gnostic terms.8

Justin Sabia-Tanis writes, “I have heard a number of trans folks state that, for

them, transition is primarily a spiritual process.… For some of us ... transitioning

is a time of deepening spirituality and a journey to come home to ourselves in body,

mind, and spirit.”9 Similarly, “Patrick Califia, an ordained minister in the

Fellowship of the Spiral Path, notes: ‘My patron goddesses kept telling me that it

didn’t matter, whether I lived as a man or a woman, that they didn’t care.… And if

I wanted to try living as a man, they thought that was trippy, and they’d go along

for the ride…. I feel that getting more honest with myself and taking this risk has

made me stronger spiritually.’” Id. at 131. Perhaps unavoidably then, the current

political debate over transgenderism has taken on distinctly religious overtones.

8

T. Romano, “Laverne Cox: ‘I Absolutely Consider Myself a Feminist,’” Dame

Magazine (June 1, 2014).

9

J. Tanis, Transgender: Theology, Ministry and Communities of Faith at

130 (2003).

17

When Florida recently passed a law prohibiting genital alteration surgeries on

minors, President Biden called it “sinful.”10

As numerous writers from both the political left and right have noted, those

who question the transgender orthodoxy are hounded and attacked with a vigor

historically seen in religious attacks against heresy. Author Kathleen Hayes notes:

[If] trans children’s parents ... do not immediately “affirm” their child’s

form of self-identification, activists will urge not only the child, but

also professionals and institutions, to regard the parents as

reactionary and toxic. Many schools obligingly don’t tell parents

that their child has “come out” as transgender and has a new

name.... If the parent fails to comply, the child is encouraged to

declare the parent a transphobe and cut relations.... [T]he prevailing

attitude of treating even mildly cautious parents as the enemy

suggests a truly cultish milieu.11

B.

This Court Has Long Banned Proselytizing in Government

Schools.

This case itself highlights the necessarily religious implications of the

transgender debate. The Applicant parents seek to fulfill the Biblical mandate to

parents to “bring [their children] up in the nurture and admonition of the Lord.”

Ephesians 6:4. They believe, and wish to teach to their children, that “God created

man in his own image, in the image of God created he him; male and female created

he them.” Genesis 1:27. The Applicant teachers seek to obey the Biblical command,

10

I. Haworth, “How trans activism became the new religion of the left,” New

York Post (Mar. 18, 2023).

11

K. Hayes, “Gender Ideology’s True Believers,” Quillette (May 19, 2022)

(emphasis added).

18

“[w]herefore putting away lying, speak every man truth with his neighbour: for we

are members one of another.” Ephesians 4:25.

Meanwhile, California schools have a very different belief — and state law

imposes this belief on the Applicant parents and teachers. The religious conflict is

glaring.

Under this Court’s jurisprudence, when compulsory public schools affirm

some religious beliefs while disparaging others, an Establishment Clause violation

occurs. Merely putting the imprimatur of the state in favor of one religious belief

over another is sufficient. Consider this line of cases:

•

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

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 school 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.

•

In Abington School District v. Schempp, 374 U.S. 203 (1963), the Court

ruled that school boards many not require passages from the Bible be

read or the Lord’s Prayer be recited, even if students may be

excused from attending or participating.

•

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.

•

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.

19

•

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.

•

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.

•

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.”

In the Establishment Clause context, this Court has been crystal clear that

no coercion need be shown whatsoever. Even when children could be excused,

proselytization of all sorts was banned by this line of cases. Students who sought

protection from prayer, Bible reading, the Ten Commandments, and even a moment

of silence, or even hearing a prayer were protected.

Indeed, in Everson v. Bd. of Education, 330 U.S. 1 (1947), this Court made

clear 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 nonetheless 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.... No

tax in any amount, large or small, can be levied to support any

religious activities ... whatever form they may adopt to teach or

practice religion.... [Id. at 15-16 (emphasis added).]

Teaching children about sexual practices deemed sinful in multiple religious

traditions is not purely secular. California’s law directly discriminates against the

20

religious beliefs of the Applicants, instead favoring the state’s preferred beliefs.

Thus, it is barred by this Court’s Establishment Clause jurisprudence.

C.

Respondents’ Transgender Agenda Is Not Neutral toward

Religion.

Respondents’ position on these thorny religious questions is anything but

neutral. California is not just supportive of one side in a religious-cultural war; it is

also belligerent. As Applicants note, the Attorney General’s position is little short

of militant. On his “LGBTQ Discrimination Rights” page, he advises school

children:

Your school, whether public or private, doesn’t have the right to “out”

you as LGBTQ+ to anyone without your permission, including your

parents.... [E]ven if you are “out” about your sexual orientation or

gender identity at school, if you’re not “out” to your parents at home,

and you can reasonably expect that they’re not going to find out, then

school staff can’t tell your family that you are LGBTQ+ without your

permission.12

He goes on to add, “[y]ou have the right to refuse and prosecute conversion therapy

providers in California. Conversion therapy for LGBTQ+ youth is illegal in

California.” Id.

As Applicants note, the California Department of Education “Frequently

Asked Questions” page likewise promises students:

A transgender or gender nonconforming student may not express their

gender identity openly in all contexts, including at home.... The right

of transgender students to keep their transgender status private is

grounded in California’s antidiscrimination laws as well as federal and

12

“LGBTQ+ Discrimination Rights,” California Office of the Attorney

General, 10-Plt.Exs-2383-89, 2474, 2481-85 (https://bit.ly/49ayGrt).

21

state laws. Disclosing that a student is transgender without the

student’s permission may violate California’s antidiscrimination law ...

and may violate the student’s right to privacy. [Appendix to

Application at 104a.]

The CDE’s page offers several “other resources” links, each of which takes

sides firmly against the religious beliefs of Applicants. One such “resource” is a

website called “Beyond the Binary: A Tool Kit for Gender Identity Activism in

Schools” (emphasis added). That “tool kit” approvingly highlights a personal

testimonial from “Caleb Ryen,” a student who “transitioned to male.” Ryen

discusses the school’s effort in getting the student a private bathroom, stating that

“[t]he school benefits from not having to deal with crazy conservative parents

flipping out.”13

Contrast the militancy of the California schools 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, California’s promotion of one religious belief over another

is blatant, intentional, and systemic.

13

S. Cho, C. Laub & S. Wall, “Beyond the Binary: A Tool Kit for Gender

Identity Activism in Schools” at 8, Gay Straight Alliance Network (2004).

22

In the light of these precedents, California’s Parental Exclusion Policy is a

painfully clear Establishment Clause violation. Although the policies this Court

has struck down may have promoted Christian beliefs, California’s policy is the

reverse, promoting beliefs at sharp odds with Christianity, Islam, and other

historically significant religious traditions.

Abington promised that “[t]he government is neutral, and, while protecting

all, it prefers none, and it disparages none.” Abington at 215. California’s policy

utterly destroys Abington’s promise and effects an unconstitutional establishment

of religion under this Court’s Establishment Clause jurisprudence.

As professor, writer, feminist, and student of the history of sex and culture,

Camille Paglia, has explained: “[T]ransgender phenomena multiply and spread in

‘late’ phases of culture, as religious, political, and family traditions weaken and

civilizations begin to decline.”14

CONCLUSION

For the foregoing reasons, this Court should construe this application as a

petition for a writ of certiorari before judgment, grant review, vacate the Ninth

Circuit’s interlocutory order staying the district court’s injunction, and remand to

strike down the California policy.

14

(2018).

C. Paglia, Free Women, Free Men: Sex, Gender, Feminism at 237-38

23

Respectfully submitted,

MICHAEL BOOS

CITIZENS UNITED

1006 Pennsylvania Ave. SE

Washington, DC 20003

JOSEPH W. MILLER

LAW OFFICES OF JOSEPH MILLER, LLC

P.O. Box 83440

Fairbanks, AK 99708

WILLIAM J. OLSON*

JEREMIAH L. MORGAN

WILLIAM J. OLSON, P.C.

370 Maple Avenue West, Suite 4

Vienna, VA 22180-5615

(703) 356-5070

Fax (703) 356-5085

wjo@mindspring.com

*Counsel of Record

JAMES N. CLYMER

CLYMER MUSSER & SARNO, P.C.

408 West Chestnut Street

Lancaster, PA 17603

RICK BOYER

INTEGRITY LAW FIRM

P.O. Box 10953

Lynchburg, VA 24506

J. MARK BREWER

209 N. Nugent Ave.

Johnson City, TX 78636

Attorneys for Amici Curiae

January 21, 2026