United States Court of Appeals
For the First Circuit
DAVID PARKER; TONIA PARKER; JOSHUA PARKER; JACOB PARKER; JOSEPH
ROBERT WIRTHLIN; ROBIN WIRTHLIN; JOSEPH ROBERT WIRTHLIN, JR.,
WILLIAM HURLEY; PAUL B. ASH; HELEN LUTTON; THOMAS R. DIAZ; OLGA
GUTTAG; SCOTT BURSON; ANDRE RAVENELLE; JONI JAY; JENNIFER
WOLFRUM; HEATHER KRAMER; TOWN OF LEXINGTON; THOMAS GRIFFITH,
APPEAL FROM THE UNITED STATES DISTRICT COURT
OF THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.
Robert S. Sinsheimer with whom Jeffrey A. Denner, Neil Tassel,
and Denner Pellegrino, LLP, were on brief for appellants.
John K. Davis with whom Pierce, Davis & Perritano, LLP, was on
brief for appellees.
Eben A. Krim, Mark W. Batten, Proskauer Rose, LLP, Sarah R.
Wunsch, ACLU Foundation of Massachusetts, Kenneth Y. Choe, James D.
Esseks, and ACLU Foundation on brief for American Civil Liberties
Union; American Civil Liberties Union of Massachusetts; Lexington
Community Action for Responsible Education and Safety; Lexington
Education Association; Massachusetts Teachers Association; and
Respecting Differences, amici curiae.
Harvey J. Wolkoff, Bonnie S. McGuire, Ropes & Gray LLP, Robert
O. Trestan, Steven M. Freeman, Steven C. Sheinberg, Deborah Cohen,
and Anti-Defamation League on brief for Anti-Defamation League,
Nima R. Eshghi, Mary L. Bonauto, Gary D. Buseck, and Gay &
Lesbian Advocates & Defenders on brief for Gay & Lesbian Advocates
& Defenders; Gay, Lesbian & Straight Education Network; Greater
Boston Parents, Families and Friends of Lesbians and Gays; Human
Rights Campaign; Human Rights Campaign Foundation; and the
Massachusetts Women's Bar Association, amici curiae.
January 31, 2008
LYNCH, Circuit Judge. Two sets of parents, whose
religious beliefs are offended by gay marriage and homosexuality,
sued the Lexington, Massachusetts school district in which their
young children are enrolled. They assert that they must be given
prior notice by the school and the opportunity to exempt their
young children from exposure to books they find religiously
repugnant. Plaintiffs asserted violations of their own and their
children's rights under the Free Exercise Clause and their
substantive parental and privacy due process rights under the U.S.
The Parkers object to their child being presented in
kindergarten and first grade with two books that portray diverse
families, including families in which both parents are of the same
gender. The Wirthlins object to a second-grade teacher's reading
to their son's class a book that depicts and celebrates a gay
marriage. The parents do not challenge the use of these books as
part of a nondiscrimination curriculum in the public schools, but
challenge the school district's refusal to provide them with prior
notice and to allow for exemption from such instruction. They ask
for relief until their children are in seventh grade.
Massachusetts does have a statute that requires parents
be given notice and the opportunity to exempt their children from
curriculum which primarily involves human sexual education or human
sexuality issues. Mass. Gen. Laws ch. 71, § 32A. The school
[End Page 3]
system has declined to apply this statutory exemption to these
plaintiffs on the basis that the materials do not primarily involve
human sexual education or human sexuality issues.
The U.S. District Court dismissed plaintiffs' complaint
for failure to state a federal constitutional claim upon which
relief could be granted. Fed. R. Civ. P. 12(b)(6); Parker v.
Hurley, 474 F. Supp. 2d 261
, 263 (D. Mass. 2007). Plaintiffs
Because plaintiffs appeal the dismissal of their
complaint under Rule 12(b)(6), we take the allegations in their
complaint as true and draw all reasonable inferences in plaintiffs'
favor. Otero v. Commonwealth of P.R. Indus. Comm'n, 441 F.3d 18
20 (1st Cir. 2006).
In addition to the complaint, we consider the three books
plaintiffs find objectionable.1 We also take notice of the
statewide curricular standards of the Commonwealth of Massachusetts
and start with those to put this dispute in context.
Normally, documents not included in the original pleading
cannot be considered on a Rule 12(b)(6) motion without converting
the motion into one for summary judgment. Fed. R. Civ. P. 12(b).
However, "courts have made narrow exceptions for documents the
authenticity of which are not disputed by the parties; for official
records; for documents central to plaintiffs' claim; or for
documents sufficiently referred to in the complaint." Watterson v.
Page, 987 F.2d 1
, 3 (1st Cir. 1993).
[End Page 4]
A. Massachusetts Statewide Curricular Standards
The Commonwealth of Massachusetts enacted a comprehensive
education reform bill in 1993, requiring the State Board of
Education (SBE) to establish academic standards for core subjects.
Mass. Gen. Laws ch. 69, § 1D. The statute mandates that the
standards "be designed to inculcate respect for the cultural,
ethnic and racial diversity of the commonwealth." Id. Further,
"[a]cademic standards shall be designed to avoid perpetuating
gender, cultural, ethnic or racial stereotypes." Id.; see also id.
§ 1E (requiring same for the establishment of curricular
frameworks). The statute does not specify sexual orientation in
The SBE established such standards, including a
Comprehensive Health Curriculum Framework in 1999. That Framework
establishes Learning Standards, which set different measurable
goals for students in pre-kindergarten through grade 5, grades 6-8,
and grades 9-12. The Health Framework also specifically notes that
"public schools must notify parents before implementing curriculum
that involves human sexuality."
Within the Framework are Strands, and Strands have
different components. Under the Social and Emotional Health
Strand, there is a Family Life component, which states:
Students will gain knowledge about the
significance of the family on individuals and
society, and will learn skills to support the
family, balance work and family life, be an
[End Page 5]
effective parent, and nurture the development of
The Learning Standard for elementary school grades under the Family
Life component states that children should be able to "[d]escribe
different types of families."
In addition, the Social and Emotional Health Strand
includes an Interpersonal Relationships component. That component
Students will learn that relationships with
others are an integral part of the human life
experience and the factors that contribute to
healthy interpersonal relationships, and will
acquire skills to enhance and make many of these
relationships more fulfilling through commitment
The associated Learning Standard for pre-kindergarten through grade
5 recommends that children be able to "[d]escribe the concepts of
prejudice and discrimination."
It is not until grades 6-8 that the Learning Standards
under this component address "the detrimental effect of prejudice
(such as prejudice on the basis of race, gender, sexual
orientation, class, or religion) on individual relationships and
society as a whole."
There is also a Reproduction/Sexuality component under
the Physical Health Strand. Within that component, the Learning
Standards provide that by grade 5, students should be able to
"[d]efine sexual orientation using the correct terminology (such as
heterosexual, and gay and lesbian)."
[End Page 6]
These statewide academic standards do not purport to
select particular instructional materials, but only to be a guide
to assist others in that selection. Mass. Gen. Laws ch. 69, § 1E.
Thus, there is no statewide regulation or policy providing for the
use of the particular texts in dispute here.
By statute, the actual selection of books is the
responsibility of a school's principal, with the approval of the
superintendent of schools. Mass. Gen. Laws ch. 71, § 48. We
assume these books were chosen locally subject to the terms of that
statute. Plaintiffs allege in their complaint that Lexington
school officials began integrating books like these into their
elementary school's curriculum at the behest of gay rights
advocates. Compl. Â¶Â¶ 32-33.
In 1996, the Massachusetts legislature adopted a parental
notification statute to be implemented by schools starting with the
1997-1998 school year. Mass. Gen. Laws ch. 71, § 32A. Section 32A
requires school districts to provide parents with notice of and an
opportunity to exempt their children from "curriculum which
primarily involves human sexual education or human sexuality
issues." The Commissioner of Education, in an advisory opinion
guiding the implementation of the new law, noted that it was
intended to apply to discrete curricular units, such as "any
courses (typically, sex education or portions of a health education
or science course), school assemblies or other instructional
[End Page 7]
activities and programs."2 Schools must make the relevant
curricular materials available for parents to review, though they
do not necessarily have to allow parents to observe the classes.
The statute mandates that the Department of Education promulgate
regulations for resolving any disputes arising under section 32A,
which the Department has done. See 603 Mass. Code Regs. 5.01 et
seq. Lexington has a section 32A policy in place.
On November 18, 2003, a divided Supreme Judicial Court of
Massachusetts held, in Goodridge v. Department of Public Health,
798 N.E.2d 941 (Mass. 2003), that the state constitution mandates
the recognition of same-sex marriage. A later effort to reverse
this decision through the mechanism of a constitutional convention
and a popular vote failed.
B. The Parkers
David and Tonia Parker's sons, Jacob and Joshua Parker,
and Joseph and Robin Wirthlin's son, Joseph Robert Wirthlin, Jr.,
are students at Estabrook Elementary School in Lexington,
Massachusetts. Both families assert that they are devout Judeo-
Christians and that a core belief of their religion is that
That statute has been interpreted in an opinion letter by
the Department of Education not to apply to educational materials
designed to promote tolerance, including materials recognizing
differences in sexual orientation, if those materials are presented
"without further instruction or discussion of the physical and sexual implications of homosexuality."
[End Page 8]
homosexual behavior and gay marriage are immoral and violate God's
In January 2005, when Jacob Parker ("Jacob") was in
kindergarten, he brought home a "Diversity Book Bag." This
included a picture book, Who's in a Family?, which depicted
different families, including single-parent families, an extended
family, interracial families, animal families, a family without
children, and -- to the concern of the Parkers -- a family with two
dads and a family with two moms. The book concludes by answering
the question, "Who's in a family?": "The people who love you the
most!" The book says nothing about marriage.
The Parkers were concerned that this book was part of an
effort by the public schools "to indoctrinate young children into
the concept that homosexuality and homosexual relationships or
marriage are moral and acceptable behavior." Compl. Â¶ 30. Such an
effort, they feared, would require their sons to affirm a belief
inconsistent with their religion. Id. Â¶ 33. On January 21, 2005,
they met with Estabrook's principal, Joni Jay ("Jay"), to request
that Jacob not be exposed to any further discussions of
homosexuality. Principal Jay disagreed that the school had any
obligation under section 32A to notify parents in advance of such
class discussions. In March 2005, the Parkers repeated their
request that "no teacher or adult expose [Jacob] to any materials
or discussions featuring sexual orientation, same-sex unions, or
[End Page 9]
homosexuality without notification to the Parkers and the right to
'opt out,'" this time including in their communication the then-
Superintendent of Lexington's schools, William Hurley ("Hurley"),
and two other district-wide administrators. Id. Â¶ 34. This
request was met with the same response. A further meeting to
discuss these issues was held at Estabrook on April 27, 2005, which
resulted in Mr. Parker's arrest when he refused to leave the school
until his demands were met.
As the 2005-2006 school year began, Paul Ash ("Ash"), the
current Superintendent, released a public statement explaining the
school district's position that it would not provide parental
notification for "discussions, activities, or materials that simply
reference same-gender parents or that otherwise recognize the
existence of differences in sexual orientation." When Jacob
entered first grade that fall, his classroom's book collection
included Who's in a Family? as well as Molly's Family, a picture
book about a girl who is at first made to feel embarrassed by a
classmate because she has both a mommy and a mama but then learns
that families can come in many different varieties. In December
2005, the Parkers repeated their request for advance notice, which
Superintendent Ash again denied.
C. The Wirthlins
We turn to the other plaintiff family.
[End Page 10]
In March 2006, an Estabrook teacher read aloud King and
King to her second grade class, which included Joseph Robert
Wirthlin, Jr. ("Joey"). This picture book tells the story of a
prince, ordered by his mother to get married, who first rejects
several princesses only to fall in love with another prince. A
wedding scene between the two princes is depicted. The last page
of the book shows the two princes kissing, but with a red heart
superimposed over their mouths. There is no allegation in the
complaint that the teacher further discussed the book with the
class. That evening, Joey told his parents about the book; his
parents described him as "agitated" and remembered him calling the
book "so silly." Id. Â¶ 57. Eventually the Wirthlins were able to
secure a meeting with the teacher and Jay on April 6, 2006, to
object to what they considered to be indoctrination of their son
about gay marriage in contravention of their religious beliefs.
Jay reiterated the school district's position that no prior notice
or exemption would be given.
D. Procedural History
On April 27, 2006, the Parkers and the Wirthlins filed
suit on behalf of themselves and their children in federal district
court against Hurley, Ash, Jay, and Joey Wirthlin's teacher, as
well as the town of Lexington, the members of its school board, and
other school district administrators.
[End Page 11]
The complaint alleges that the public schools are
systematically indoctrinating the Parkers' and the Wirthlins' young
children contrary to the parents' religious beliefs and that the
defendants held "a specific intention to denigrate the [families']
sincere and deeply-held faith." Id. Â¶ 66. They claim, under 42
U.S.C. § 1983, violations of their and their children's First
Amendment right to the free exercise of religion and of their
Fourteenth Amendment due process right to parental autonomy in the
upbringing of their children, as well as of their concomitant state
rights.3 They also assert a violation of the Massachusetts "opt
out" statute, Mass. Gen. Laws ch. 71, § 32A.
The plaintiffs argue that their ability to influence
their young children toward their family religious views has been
undercut in several respects. First, they believe their children
are too young to be introduced to the topic of gay marriage. They
also point to the important influence teachers have on this age
group. They fear their own inability as parents to counter the
school's approval of gay marriage, particularly if parents are
The plaintiffs also claim that defendants violated § 1983
by conspiring to deprive them of these constitutional rights. They
do not assert an Establishment Clause claim.
We note that the Supreme Judicial Court has held that the
Massachusetts state constitution provides greater protection for
free exercise claims then does the federal constitution. Attorney
Gen. v. Desilets, 636 N.E.2d 233, 235-36 (Mass. 1994). Plaintiffs
brought their suit in federal court and have chosen not to request
certification of any state law issues to the Supreme Judicial
[End Page 12]
given no notice that such curricular materials are in use. As
for the children, the parents fear that they are "essentially"
required "to affirm a belief inconsistent with and prohibited by
their religion." Compl. Â¶ 33. The parents assert it is ironic,
and unconstitutional under the Free Exercise Clause, for a public
school system to show such intolerance towards their own religious
beliefs in the name of tolerance.
For relief, the plaintiffs seek a declaration of their
constitutional rights; damages; and an injunction requiring the
school (1) to provide an opportunity to exempt their children from
"classroom presentations or discussions the intent of which is to
have children accept the validity of, embrace, affirm, or celebrate
views of human sexuality, gender identity, and marriage
constructs," (2) to allow the parents to observe any such classroom
discussions, and (3) to not present any "materials graphically
depicting homosexual physical contact" to students before the
The defendants moved to dismiss for failure to state a
claim upon which relief could be granted. Fed. R. Civ. P.
12(b)(6). After hearing oral arguments, the district court granted
In the request for injunctive relief, plaintiffs also
sought an opt-out right regarding "classroom presentations or
discussions when the intent is to have children accept the validity
of, embrace, affirm or celebrate belief systems or religious
perspectives." Because the complaint does not allege any instance
of such a classroom presentation or discussion, we do not further
consider this particular claim for relief.
[End Page 13]
the defendants' motion on February 23, 2007. The court dismissed
the state claims without prejudice so that they could be reasserted
in state court. Parker, 474 F. Supp. 2d at 263.
As to the federal claims, the district court found this
case indistinguishable from Brown v. Hot, Sexy & Safer Productions,
68 F.3d 525
(1st Cir. 1995). In Brown, this circuit held that the
Free Exercise Clause and the parents' substantive due process
rights were not violated by one instance of a school system's
failure to provide prior notice and an exemption for a specific
high school assembly on human sexuality. Holding that Brown was
analytically identical to the present case, the district court
applied rational basis review and concluded that the state's
interest in preventing discrimination, specifically discrimination
targeted at students in school, justified the policy of the
Lexington schools. Parker, 474 F. Supp. 2d at 268, 274-75.
Our review of the district court's order of dismissal is
de novo. Otero, 441 F.3d at 20. Plaintiffs' "[f]actual
allegations must be enough to raise a right to relief above the
speculative level, on the assumption that all the allegations in
the complaint are true." Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955
, 1965 (2007) (citations omitted). We affirm the order of
dismissal, albeit on grounds different from the district court's
reasoning. See Otero, 441 F.3d at 20.
[End Page 14]
There are several ways to approach the parents' claim
depending upon how this case is categorized. One could start by
asking how strong the school's interest must be to justify the
denial of the parents' request for an exemption (as opposed to
asking about the nature of the plaintiffs' interests, as we do
below). The parties have focused on the standard of justification
the defendants must meet in the aftermath of Employment Division v.
Smith, 494 U.S. 872
(1990). What is clear from Smith is that not
all free exercise challenges will survive motions to dismiss and
not all will receive strict scrutiny review.
One possible answer is that, under Smith, the school may
have to show no more than that its choice of books and its refusal
to provide exemption is rational. In Smith, the Court rejected the
plaintiffs' claim that they had unconstitutionally been denied
unemployment benefits due to their violation of Oregon's general
criminal prohibition on the use of peyote, even though they had
used the peyote for religious purposes. The Court found no free
exercise objection to the criminal statute's enforcement because,
as it summarized in a later case, "a law that is neutral and of
general applicability need not be justified by a compelling
governmental interest even if the law has the incidental effect of
burdening a particular religious practice." Church of the Lukumi
Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520
, 531 (1993).
[End Page 15]
If Smith's mere rationality test were the applicable
standard, this case would easily be dismissed. Plaintiffs do not
contest that the defendants have an interest in promoting
tolerance, including for the children (and parents) of gay
marriages. The Supreme Court has often referred to the role of
public education in the preparation of students for citizenship.
See, e.g., Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675
85 (1986) (upholding ability of schools to prohibit lewd speech).
Given that Massachusetts has recognized gay marriage under its
state constitution, it is entirely rational for its schools to
educate their students regarding that recognition.5
In plaintiffs' favor, however, we will assume their case
is not necessarily subject to this general Smith rule. First, the
case does not arise in the same context as Smith. Plaintiffs have
not engaged in conduct prohibited by state law or otherwise sought
to avoid compliance with a law of general applicability.6 Nor does
We do not reach the question of whether there is a
compelling interest, either state or federal, in teaching tolerance
for gay marriage to elementary school students in the public school system. Cf. Bob Jones Univ. v. United States, 461 U.S. 574
(1983) (holding that federal government's compelling interest in
eradicating racial discrimination outweighed plaintiffs' free
exercise claim); Moore v. City of E. Cleveland, 431 U.S. 494
500 (1977) (holding that city lacked compelling justification for
impinging on due process right of familial privacy).
In City of Boerne v. Flores, 521 U.S. 507 (1997), the
Supreme Court appeared to assume that Smith would apply to non-
criminal regulations such as zoning ordinances. Id. at 535. At
least four circuits have held that Smith is not limited to criminal
prohibitions. Fairbanks v. Brackettville Bd. of Educ., No. 99-
[End Page 16]
state law or a formal policy require that the defendants take the
actions they did. Indeed, there is not even a formal, district-
wide policy of affirming gay marriage through the use of such
educational materials with young students.
In contrast to the mere rationality standard for neutral
laws of general applicability, Smith and its progeny require a
compelling justification for any law that targets religious groups.
See Lukumi, 508 U.S. at 546 (invalidating law targeting religious
group). This case also does not fit into the "targeting" category,
as the Supreme Court has used the phrase. The school was not
singling out plaintiffs' particular religious beliefs or targeting
its tolerance lessons to only those children from families with
religious objections to gay marriage. Cf. id. at 542. The fact
that a school promotes tolerance of different sexual orientations
and gay marriage when such tolerance is anathema to some religious
groups does not constitute targeting.
The Smith Court, in our view, left open other possible
approaches. The Court in Smith did not say it overruled any prior
free exercise cases. For example, it reinterpreted the balancing
50265, 2000 WL 821401, at *2 (5th Cir. May 30, 2000); Miller v.
Reed, 176 F.3d 1202
, 1207 (9th Cir. 1999); Vandiver v. Hardin
County Bd. of Educ., 925 F.2d 927
, 932 (6th Cir. 1991); Salvation
Army v. Dep't of Cmty. Affairs, 919 F.2d 183
, 194-96 (3d Cir.
1990); see also Gary S. v. Manchester Sch. Dist., 374 F.3d 15
19 (1st Cir. 2004) (refusing to limit the Smith rule to statutes
related to socially harmful conduct).
[End Page 17]
test of Sherbert v. Verner, 374 U.S. 398
(1963),7 under which the
court "asks whether the government has placed a substantial burden
on the observation of a central religious belief or practice and,
if so, whether a compelling governmental interest justifies the
burden," Hernandez v. Comm'r, 490 U.S. 680
, 699 (1989). Smith
clarified that the Sherbert test does not apply to violations of a
general prohibition. Smith, 494 U.S. at 883-85. The Court
expressed unwillingness to apply the Sherbert test outside the
unemployment compensation cases in which it had found free exercise
violations, id. at 883, explaining that the Sherbert approach was
"developed in a context that lent itself to individualized
governmental assessment" of each plaintiff's "particular
circumstances," id. at 884. Thus it summarized the Sherbert line
of cases as "stand[ing] for the proposition that where the State
has in place a system of individual exemptions, it may not refuse
to extend that system to cases of 'religious hardship' without
compelling reason." Id. Plaintiffs have not argued that they fit
within this redefinition of Sherbert, so we do not address the
But cf. Gonzales v. O Centro Espirita Beneficente Uniao
do Vegetal, 546 U.S. 418
, 424 (2006) (describing Smith as
"reject[ing] the interpretation of the Free Exercise Clause
announced in Sherbert").
Plaintiffs have not argued, for example, that the
Commonwealth, having provided an exemption for sex education under
Mass. Gen. Laws ch. 71, § 32A, is compelled by either the state or
federal constitution to extend the exemption to this situation.
[End Page 18]
Smith, by its terms, also carved out an area of "hybrid
situations." Id. at 881-82. Plaintiffs argue this is where their
claim fits. Smith described such hybrid situations as involving
free exercise claims brought in conjunction with other claims of
violations of constitutional protections. Smith gave as one
example of a companion claim "the right of parents . . . to direct
the education of their children," citing to Pierce v. Society of
Sisters, 268 U.S. 510
(1925), and Wisconsin v. Yoder, 406 U.S. 205
(1972). Smith, 494 U.S. at 881. In this hybrid category, Smith
Indeed, there are factual distinctions between the two
situations. Sex education as referred to in section 32A is usually set out as an independent course segment at prearranged times and
places. Notice and exemption is thus far easier to accomplish. By
contrast, the notice and exemption requested here would require
broad advance notice of "any adult-directed or initiated classroom
discussions of sexuality, gender identity, and marriage
constructs," discussions that could arise often in almost any part
of the curriculum.
Plaintiffs do point out, however, that because this case
was decided on a motion to dismiss, the defendants have put on no
evidence that the school system would bear any burden if required
to give them this notice and exemption. Defendants have not, for
instance, argued that granting the plaintiffs an exemption from such classroom instruction would violate the Establishment Clause.
See Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136
(1987) ("[G]overnment may (and sometimes must) accommodate
religious practices . . . without violating the Establishment
Amici, however, argue that such exemptions would
significantly burden the schools because (1) there would be an
exodus from classrooms if plaintiffs received the relief requested
and that (2) this in turn would send a message that children of same-sex parents are inferior. This is mere supposition and may
not be credited on a motion to dismiss, where inferences must be
drawn in the plaintiffs' favor. Plaintiffs argue for their part
that the remedy they seek would teach other students tolerance of
different religious beliefs.
[End Page 19]
also included cases of compelled expression decided on free speech
grounds, but which also involved freedom of religion, such as West
Virginia Board of Education v. Barnette, 319 U.S. 624
Smith, 494 U.S. at 882. The Smith Court commented that only in
these hybrid situations had the Court ever held that "the First
Amendment bar[red] application of a neutral, generally applicable
law to religiously motivated action." Id. at 881.
What the Court meant by its discussion of "hybrid
situations" in Smith has led to a great deal of discussion and
disagreement. See, e.g., E. Chemerinsky, Constitutional Law
§ 220.127.116.11, at 1262 (3d ed. 2006) (noting different treatments of
the hybrid rights language by the lower courts). Observers debate
whether Smith created a new hybrid rights doctrine, or whether in
discussing "hybrid situations" the Court was merely noting in
descriptive terms that it was not overruling certain cases such as
Pierce and Yoder. Compare M.E. Lechliter, Note, The Free Exercise
of Religion and Public Schools: The Implication of Hybrid Rights on
the Religious Upbringing of Children, 103 Mich. L. Rev. 2209, 2220-
21 (2005), with M.W. McConnell, Free Exercise Revisionism and the
Smith Decision, 57 U. Chi. L. Rev. 1109, 1121-22 (1990). Courts
and commentators also disagree over how strong the companion
constitutional claim must be to establish a hybrid situation:
whether, for example, the associated claim must be independently
viable, or whether it is enough for the claim to be "colorable."
[End Page 20]
See, e.g., Miller v. Reed, 176 F.3d 1202
, 1207 (9th Cir. 1999)
(requiring a colorable claim that another constitutional right has
been violated); Swanson ex rel. Swanson v. Guthrie Indep. Sch.
Dist. No. I-L, 135 F.3d 694
, 700 (10th Cir. 1998) (same);
Lechliter, supra, at 2226-33 (identifying and describing
disagreement among courts).9 Yet another debate is whether such
"hybrid" cases automatically subject the governmental defendant to
the compelling state interest test.10 Plaintiffs argue that they
have pled a hybrid claim and that this entitles them to strict
scrutiny review, which requires defendants to demonstrate a
compelling state interest.
No published circuit court opinion, including Brown, has
ever applied strict scrutiny to a case in which plaintiffs argued
they had presented a hybrid claim. See, e.g., Civil Liberties for
Urban Believers v. City of Chicago, 342 F.3d 752
, 764-65 (7th Cir.
Others have interpreted this circuit's decision in Brown
as falling into the former category -- that is, requiring an
independently viable constitutional claim. See, e.g., Lechliter, supra, at 2226-27; R.C. Miller, Annotation, What Constitutes
"Hybrid Rights" Claim, 163 A.L.R. Fed. 493 § 6. Brown did not
explicitly consider this debate, and the parental rights claim
asserted in that case was found to be so weak that it was not a
colorable claim, much less an independently viable one. Thus we do
not read Brown as having settled this question or as firmly
establishing that Smith created a new category of hybrid claims.
There is no occasion here to consider whether there might
be an intermediate step in which the degree of justification may
vary with the type of burden asserted. See, e.g., Fraternal Order
of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359
& n.7 (3d Cir. 1999) (applying intermediate scrutiny because the
plaintiffs' claim arose in the public employment context).
[End Page 21]
2003); Henderson v. Kennedy, 253 F.3d 12
, 19 (D.C. Cir. 2001);
Miller, 176 F.3d at 1208; Swanson, 135 F.3d at 700; Salvation Army
v. Dep't of Cmty. Affairs, 919 F.2d 183
, 199-200 & n.9 (3d Cir.
1990).11 As for this circuit, Brown noted that Yoder survived
Smith, but then explained that the facts in Brown were far from
analogous to the unique facts of Yoder, and held that no hybrid
claim was presented.12 Brown, 68 F.3d at 539. Other circuits have
held explicitly that Smith does not create a new category of hybrid
claims. See, e.g., Leebaert v. Harrington, 332 F.3d 134
(2d Cir. 2003); Kissinger v. Bd. of Trs., 5 F.3d 177
, 180 (6th Cir.
1993); see also Lukumi, 508 U.S. at 567 (Souter, J., concurring)
(describing the hybrid distinction drawn by Smith as "ultimately
A Ninth Circuit panel did apply strict scrutiny, but that
opinion was later withdrawn by the court en banc. Thomas v.
Anchorage Equal Rights Comm'n, 165 F.3d 692
, 714-17 (9th Cir.
1999), vacated by 220 F.3d 1134
(9th Cir. 2000). The D.C. Circuit
opinion in EEOC v. Catholic University of America, 83 F.3d 455
(D.C. Cir. 1996), might be read as implying that strict scrutiny
would apply in hybrid situations, but its brief discussion of
hybrid rights was merely an alternate ground for its holding. See
id. at 467.
Also, in Gary S. v. Manchester School District, 374 F.3d 15 (1st Cir. 2004), this court held that no hybrid claim was
presented by a disabled private school student's parents, who
argued that their son was entitled to all the same services under
IDEA as public school students. Id. at 19 (endorsing Gary S. v.
Manchester Sch. Dist., 241 F. Supp. 2d 111
, 121 (D.N.H. 2003)).
The failure to provide those IDEA benefits to private school students does not impose any cognizable burden upon the religion of
those who choose private schools. Id. at 20.
[End Page 22]
Without entering the fray over the meaning and
application of Smith's "hybrid situations" language, we approach
the parents' claims as the Court did in Yoder. In that case, the
Court did not analyze separately the due process and free exercise
interests of the parent-plaintiffs, but rather considered the two
claims interdependently, given that those two sets of interests
inform one other.13 See Yoder, 406 U.S. at 213-14, 232-34. We do
not need to resolve the hybrid rights debate because the level of
justification the government must demonstrate -- a rational basis,
a compelling interest, or something in between -- is irrelevant in
this case. While we accept as true plaintiffs' assertion that
their sincerely held religious beliefs were deeply offended, we
find that they have not described a constitutional burden on their
rights, or on those of their children.
While some have criticized the hybrid rights concept,
saying it tries to make something out of nothing, see Henderson,
253 F.3d at 19 ("[I]n law as in mathematics zero plus zero equals
zero."), others have noted that "it is equally true that the sum of
a number of fractions -- one-half plus one-half, for example -- may
equal one," R.F. Duncan, Free Exercise Is Dead, Long Live Free
Exercise: Smith, Lukumi, and the General Applicability
Requirement, 3 U. Pa. J. Const. L. 850, 858 (2001).
In the criminal law, we have recognized that at times the
cumulative effect of a series of individual rulings, none of which
individually constituted error, could mean the trial was not fair,
United States v. Sepulveda, 15 F.3d 1161
, 1195-96 (1st Cir. 1993),
though we do not conclude that this is an appropriate analogy.
As in Brown, we do not settle the question of what must
be pled to raise a viable hybrid claim, as Smith uses the term.
Our point here is rather that parental rights and the free exercise
of religion by parents are interests that overlap and inform each
other, and thus are sensibly considered together.
[End Page 23]
Even if Smith largely set aside in free exercise
jurisprudence, at least in some contexts, "the balancing question
-- whether the state's interest outweighs the plaintiff's interest
in being free from interference," it did not alter the standard
constitutional threshold question. N.M. Stolzenberg, "He Drew a
Circle That Shut Me Out": Assimilation, Indoctrination, and the
Paradox of a Liberal Education, 106 Harv. L. Rev. 581, 592-93
(1993). That question is "whether the plaintiff's free exercise is
interfered with at all." Id.; see also Lyng v. Nw. Indian Cemetery
Protective Ass'n, 485 U.S. 439
, 451-52 (1988) (denying a free
exercise claim despite potential "devastating effects on
traditional Indian religious practices" because "the Constitution
simply does not provide a principle that could justify upholding
respondents' legal claims"); Bauchman ex rel. Bauchman v. W. High
Sch., 132 F.3d 542
, 557 (10th Cir. 1997) (requiring plaintiff
asserting a free exercise claim to demonstrate burden, either
through coercion or compulsion). In this case there is no pleading
of a constitutionally significant burden on plaintiffs' rights.
In Yoder, the Court found unconstitutional Wisconsin's
application of its compulsory school attendance law to Amish
parents who believed that any education beyond eighth grade
undermined their entire, religiously focused way of life. 406 U.S.
at 235-36. The heart of the Yoder opinion is a lengthy
consideration of "the interrelationship of belief with [the Amish]
[End Page 24]
mode of life, the vital role that belief and daily conduct play in
the continued survival of Old Order Amish communities and their
religious organization," and how as a result compulsory high school
education would "substantially interfer[e] with the religious
development of the Amish child and his integration into the way of
life of the Amish faith community." Id. at 218, 235. The Court
thus found Wisconsin's compulsory attendance law to be flatly
incompatible with the plaintiffs' free exercise rights and parental
liberty interests, which it considered in tandem. That is,
compulsory attendance at any school -- whether public, private, or
home-based -- prevented these Amish parents from making fundamental
decisions regarding their children's religious upbringing and
effectively overrode their ability to pass their religion on to
their children, as their faith required. Id. at 233-35. Further,
the parents in Yoder were able to demonstrate that their
alternative informal vocational training of their older children
still met the state's professed interest behind its compulsory
attendance requirement. Id. at 235.
To the extent that Yoder embodies judicial protection for
social and religious "sub-groups from the public cultivation of
liberal tolerance," plaintiffs are correct to rely on it. See
Stolzenberg, supra, at 637. But there are substantial differences
between the plaintiffs' claims in Yoder and the claims raised in
this case. One ground of distinction is that the plaintiffs have
[End Page 25]
chosen to place their children in public schools and do not live,
as the Amish do, in a largely separate culture. There are others.
While plaintiffs do invoke Yoder's language that the state is
threatening their very "way of life," they use this language to
refer to the centrality of these beliefs to their faith, in
contrast to its use in Yoder to refer to a distinct community and
life style. Exposure to the materials in dispute here will not
automatically and irreversibly prevent the parents from raising
Jacob and Joey in the religious belief that gay marriage is
immoral. Nor is there a criminal statute involved, or any other
punishment imposed on the parents if they choose to educate their
children in other ways. They retain options, unlike the parents in
Yoder. Tellingly, Yoder emphasized that its holding was
essentially sui generis, as few sects could make a similar showing
of a unique and demanding religious way of life that is
fundamentally incompatible with any schooling system. See Yoder,
406 U.S. at 235-36. Plaintiffs' case is not Yoder.
Despite defendants' contention, plaintiffs' case is also
not Brown. Brown concerned a federal constitutional challenge to
a one-time failure by a Massachusetts high school to comply with
the notice and exemption procedures required by Mass. Gen. Laws ch.
71, § 32A, for a student's attendance at a discrete sex education
assembly. Brown is factually and legally distinct. Most
significantly, Brown involved the education of high school
[End Page 26]
students, not the education of kindergarten through second-grade
students. Educators treat this age differential as significant.
The statewide curricular standards themselves, including those
related to sexual orientation, distinguish between elementary and
high school students. Further, as the plaintiffs sensibly point
out, high school students are less responsive to what adults say
than are very young elementary school children.
The impressionability of young school children has been
noted as a relevant factor in the Establishment Clause context.
See, e.g., Lee v. Weisman, 505 U.S. 577
, 592 (1992) (identifying
concerns about the "subtle coercive pressure [of state endorsement
of religion] in the elementary and secondary public schools"); Sch.
Dist. of Abington Twp. v. Schempp, 374 U.S. 203
, 307 (1963)
(Goldberg, J., concurring) (expressing concern about the impact of
school prayer and Bible reading on "young impressionable
children"); L.H. Tribe, American Constitutional Law, § 14-5, at
1177-79 (2d ed. 1988). Just as university students "are less
impressionable than younger students" when it comes to school
policies regarding religion, Widmar v. Vincent, 454 U.S. 263
n.14 (1981), so also are high school students less impressionable
than the very youngest children, see Lemon v. Kurtzman, 403 U.S. 602
, 616 (1971) (noting that "inculcating religious doctrine is .
. . enhanced by the impressionable age of the pupils, in primary
[End Page 27]
schools particularly"); see also Fleischfresser v. Dirs. of Sch.
Dist. 200, 15 F.3d 680
, 686 (7th Cir. 1994).
The relevance of the age of school children has been
noted in a free speech case involving religious expression. Curry
ex rel. Curry v. Hensiner,
, 2008 WL 141076, at *6 (6th
Cir. Jan. 16, 2008). The age of the student has also been
identified as relevant in the context of parental due process
rights. See C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159
, 185 (3d
Cir. 2005) (recognizing that "introducing a child to sensitive
topics before a parent might have done so herself can complicate
and even undermine parental authority").
We see no principled reason why the age of students
should be irrelevant in Free Exercise Clause cases. See, e.g., M.
Eichner, Who Should Control Children's Education?: Parents,
Children, and the State, 75 U. Cin. L. Rev. 1339, 1382, 1386 (2007)
(age of children should be taken into account when considering
parental due process or free exercise claims in the public school
context). Based on this distinction alone, Brown does not control
We turn afresh to plaintiffs' complementary due process
and free exercise claims. Plaintiffs' opening premise is that
their rights of parental control are fundamental rights.14 They
In Washington v. Glucksberg, 521 U.S. 702
Court listed fundamental rights protected by the Due Process
Clause. Id. at 719-20. The Fourteenth Amendment guarantees that
[End Page 28]
rely on a Supreme Court decision recognizing a substantive due
process right of parents "to make decisions concerning the care,
custody, and control of their children." Troxel v. Granville, 530 U.S. 57
, 66 (2000) (plurality opinion). Troxel is not so broad as
plaintiffs assert. The cases cited by the Court in Troxel as
establishing this parental right pertain either to the custody of
children, which was also the issue in dispute in Troxel, or to the
fundamental control of children's schooling, as in Yoder. See id.
at 65-66.15 The Troxel plurality did not, however, specifically
address which standard of review to apply when this due process
right is implicated.
The schooling cases cited in Troxel "evince the principle
that the state cannot prevent parents from choosing a specific
educational program." Brown, 68 F.3d at 533 (emphasis added). In
Meyer v. Nebraska, 262 U.S. 390
(1923), the Supreme Court found
unconstitutional a prohibition on the teaching of foreign languages
no state may "deprive any person of life, liberty, or property,
without due process of law." U.S. Const. amend. XIV, § 1. That
due process right has both a procedural and a substantive
component: it ensures fair process, and it "provides heightened
protection against government interference with certain fundamental
rights and liberty interests." Glucksberg, 521 U.S. at 720.
In slight variations on these themes, the Court also
cited Parham v. J.R., 442 U.S. 584
(1979), which pertained to the
power of parents to commit their children to mental institutions,
and Prince v. Massachusetts, 321 U.S. 158
(1944), in which the
Court determined that the parent's liberty interest was outweighed
in that instance by the state's interest in enforcing child labor
and compulsory attendance laws.
[End Page 29]
to young children in part because it interfered with "the power of
parents to control the education of their own." Id. at 401. Two
years later, in Pierce v. Society of Sisters, the Court overturned
an Oregon statute compelling children to attend public schools on
the grounds that the statute "unreasonably interfere[d] with the
liberty of parents and guardians to direct the upbringing of
children under their control." Id. at 534-35. Plaintiffs argue
their request for notice and exemption is simply a logical
extension of their parental rights under Meyer and Pierce, as
reinforced by their free exercise rights.
Defendants respond that plaintiffs' argument runs afoul
of the general proposition that, while parents can choose between
public and private schools, they do not have a constitutional right
to "direct how a public school teaches their child." Blau v. Fort
Thomas Pub. Sch. Dist., 401 F.3d 381
, 395 (6th Cir. 2005). That
proposition is well recognized. See, e.g., C.N., 430 F.3d at 184
(recognizing a "distinction between actions that strike at the
heart of parental decision-making authority on matters of the
greatest importance and other actions that, although perhaps unwise
and offensive, are not of constitutional dimension"); Leebaert, 332
F.3d at 141 ("Meyer, Pierce, and their progeny do not begin to
suggest the existence of a fundamental right of every parent to
tell a public school what his or her child will and will not be
taught."); Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275
[End Page 30]
291 (5th Cir. 2001) ("It has long been recognized that parental
rights are not absolute in the public school context and can be
subject to reasonable regulation."); Swanson, 135 F.3d at 699 ("The
case law in this area establishes that parents simply do not have
a constitutional right to control each and every aspect of their
children's education . . . ."); see also Fields v. Palmdale Sch.
Dist., 427 F.3d 1197
, 1207 (9th Cir. 2005), amended by 447 F.3d 1187
(9th Cir. 2006). Indeed, Meyer and Pierce specified that the
parental interests they recognized would not interfere with the
general power of the state to regulate education, including "the
state's power to prescribe a curriculum for institutions which it
supports." Meyer, 262 U.S. at 402; see also Pierce, 268 U.S. at
Plaintiffs say, in response, that they are not attempting
to control the school's power to prescribe a curriculum. The
plaintiffs accept that the school system "has a legitimate secular
interest in seeking to eradicate bias against same-gender couples
and to ensure the safety of all public school students." They
assert that they have an equally sincere interest in the
accommodation of their own religious beliefs and of the diversity
represented by their contrary views. Plaintiffs specifically
disclaim any intent to seek control of the school's curriculum or
to impose their will on others. They do not seek to change the
choice of books available to others but only to require notice of
[End Page 31]
the books and an exemption, and even then only up to the seventh
grade. Nonetheless, we have found no federal case under the Due
Process Clause which has permitted parents to demand an exemption
for their children from exposure to certain books used in public
The due process right of parental autonomy might be
considered a subset of a broader substantive due process right of
familial privacy. See M.L.B. v. S.L.J., 519 U.S. 102
, 116 (1996).
The other cases establishing privacy rights under the Due Process
Clause pertain to such issues as the right to marry, e.g., Loving
v. Virginia, 388 U.S. 1
(1967) (state cannot outlaw miscegenation),
and the right to procreate, e.g., Skinner v. Oklahoma, 316 U.S. 535
(1942) (state cannot forcibly sterilize convicts), and are not
relevant to plaintiffs' claims. In sum, the substantive due
process clause by itself, either in its parental control or its
privacy focus, does not give plaintiffs the degree of control over
their children's education that their requested relief seeks. We
turn then to whether the combination of substantive due process and
free exercise interests give the parents a cause of action.
The First Amendment's prohibition on laws "respecting an
establishment of religion, or prohibiting the free exercise
thereof" applies to the states through the Fourteenth Amendment.
Cantwell v. Connecticut, 310 U.S. 296
, 303 (1940). In Smith, the
Supreme Court noted that the "free exercise of religion means,
[End Page 32]
first and foremost, the right to believe and profess whatever
religious doctrine one desires." 494 U.S. at 877. As a result,
the government may not, for example, (1) compel affirmation of
religious beliefs; (2) punish the expression of religious doctrines
it believes to be false; (3) impose special disabilities on the
basis of religious views or religious status; or (4) lend its power
to one side or the other in controversies over religious
authorities or dogma. Id.16
The Free Exercise Clause, importantly, is not a general
protection of religion or religious belief. It has a more limited
reach of protecting the free exercise of religion. In Lyng, the
Court noted that there and in Bowen v. Roy, 476 U.S. 693
free exercise claim was stated even though "the challenged
Government action would interfere significantly with private
persons' ability to pursue spiritual fulfillment according to their
own religious beliefs." 485 U.S. at 449. There was no free
exercise problem in those cases because "[i]n neither case . . .
While this case is not a funding case, the Court has most
recently held that in such cases there is no significant burden on
free exercise rights where, as here, the government has "impose[d]
neither criminal nor civil sanctions on any type of religious service or rite," and where it "does not require students to choose
between their religious beliefs and receiving a government
benefit." Locke v. Davey, 540 U.S. 712
, 720-21 (2004). As here,
the government in Locke made no attempt to regulate the plaintiffs'
conduct. Id.; see D. Laycock, Supreme Court, 2003 Term -- Case
Comment: Theology Scholarships, the Pledge of Allegiance, and
Religious Liberty: Avoiding the Extremes but Missing the Liberty,
118 Harv. L. Rev. 155, 214-15 (2004).
[End Page 33]
would the affected individuals be coerced by the Government's
action into violating their religious beliefs." Id. As the Court
said in Roy, "[n]ever to our knowledge has the Court interpreted
the First Amendment to require the Government itself to behave in
ways that the individual believes will further his or her spiritual
development or that of his or her family." 476 U.S. at 699; see
also Sherbert, 374 U.S. at 412 (Douglas, J., concurring) ("[T]he
Free Exercise Clause is written in terms of what the government
cannot do to the individual, not in terms of what the individual
can exact from the government."). Specifically, "it is necessary
in a free exercise case for one to show the coercive effect of the
enactment as it operates against him in the practice of his
religion." Schempp, 374 U.S. at 223.
Preliminarily, we mark the distinction between the
alleged burden on the parents' free exercise rights and the alleged
burden on their children's. The right of parents "to direct the
religious upbringing of their children," Yoder, 406 U.S. at 233,
is distinct from (although related to) any right their children
might have regarding the content of their school curriculum. See
Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1
, 16-18 (2004)
(where father lacked legal power to sue on behalf of his daughter,
he could assert a right to influence her religious upbringing but
lacked standing to challenge her exposure to ideas presented to her
by third parties). But see id. at 24 n.2 (Rehnquist, C.J.,
[End Page 34]
concurring in the judgment) (Newdow's right should not be treated
as distinct from his daughter's). This is not a new distinction.
In Prince v. Massachusetts, 321 U.S. 158
(1944), the Court
explained that "two claimed liberties are at stake. One is the
parent's, to bring up the child in the way [the parent desires],
which for appellant means to teach him the tenets and the practices
of their faith. The other freedom is the child's, to observe these
[tenets and practices]." Id. at 164; see also Fleischfresser, 15
F.3d at 683-84. We start with the parents' claim.
Generally, the fundamental parental control/free exercise
claims regarding public schools have fallen into several types of
situations: claims that failure to provide benefits given to public
school students violates free exercise rights,17 claims that
plaintiffs should not be subjected to compulsory education,18
demands for removal of offensive material from the curriculum,19
See, e.g., Gary S. v. Manchester Sch. Dist., 374 F.3d 15,
19-21 (1st Cir. 2004); Swanson, 135 F.3d at 698, 702 (no due
process or free exercise violation in school district's refusal to
allow home-schooled students to attend public schools part-time).
See, e.g., Yoder, 406 U.S. 205; Murphy v. Arkansas, 852 F.2d 1039 (8th Cir. 1988) (no due process or free exercise
violation in state setting requirements for home schooling); Duro
v. Dist. Attorney, 712 F.2d 96
(4th Cir. 1983) (no Yoder-like
constitutional problem with state statute prohibiting home schooling).
See, e.g., Williams v. Bd. of Educ., 388 F. Supp. 93 (D.
W. Va. 1975) (no violation of free exercise or privacy rights in school's use of textbooks that offend plaintiffs' religious
beliefs). The amici's attempts to fit plaintiffs' claim into this
third type -- removal of material from the school's curriculum --
[End Page 35]
and, as here, claims that there is a constitutional right to
exemption from religiously offensive material.20 See also M.
Stewart, The First Amendment, the Public Schools, and the
Inculcation of Community Values, 18 J. L. & Educ. 23, 86 (1989).
In two cases in which plaintiffs did not raise a related
parental rights due process claim, federal courts have rejected
free exercise claims seeking exemptions from the schools'
assignment of particular books. In Fleischfresser, the parents
sought to prevent the use of the Impressions Reading Series as a
supplemental reading program for an elementary school. 15 F.3d at
683. The parents complained that the series fostered a belief in
the existence of superior beings and indoctrinated their children
in values such as despair, deceit, and parental disrespect, values
different from their Christian beliefs. Id. at 683, 689. The
Seventh Circuit held that any burden on free exercise rights was,
at most, minimal. The parents were not precluded from meeting
their religious obligation to instruct their children, nor were the
fails. Plaintiffs do not claim a general right of censorship, only
that they have a right to notice and exemption.
See, e.g., Leebaert, 332 F.3d 134 (no free exercise or
parental due process right violated by school's refusal to exempt student from mandatory health class); Littlefield, 268 F.3d 275
parental due process or free exercise violation in refusal to
exempt child from mandatory uniform policy); Morrison ex rel.
Morrison v. Bd. of Educ., 419 F. Supp. 2d 937
(E.D. Ky. 2006) (no
right to exempt child from mandatory school diversity training on
homosexuality), rev'd on other grounds, 507 F.3d 494
[End Page 36]
parents or children compelled to do anything or refrain from doing
anything of a religious nature. Thus, no coercion existed. Id. at
In Mozert v. Hawkins County Board of Education, 827 F.2d 1058 (6th Cir. 1987), which is more factually similar to this case,
the Sixth Circuit rejected a broader claim for an exemption from a
school district's use of an entire series of texts. The parents in
that case asserted that the books in question taught values
contrary to their religious beliefs and that, as a result, the
school violated the parents' religious beliefs by allowing their
children to read the books and violated their children's religious
beliefs by requiring the children to read them. Id. at 1060. The
court, however, found that exposure to ideas through the required
reading of books did not constitute a constitutionally significant
burden on the plaintiffs' free exercise of religion. Id. at 1065.
In so holding, the court emphasized that "the evil prohibited by
the Free Exercise Clause" is "governmental compulsion either to do
or refrain from doing an act forbidden or required by one's
religion, or to affirm or disavow a belief forbidden or required by
one's religion," and reading or even discussing the books did not
compel such action or affirmation. Id. at 1066, 1069.
In the present case, the plaintiffs claim that the
exposure of their children, at these young ages and in this
setting, to ways of life contrary to the parents' religious beliefs
[End Page 37]
violates their ability to direct the religious upbringing of their
children. We try to identify the categories of harms alleged. The
parents do not allege coercion in the form of a direct interference
with their religious beliefs, nor of compulsion in the form of
punishment for their beliefs, as in Yoder. Nor do they allege the
denial of benefits. Further, plaintiffs do not allege that the
mere listening to a book being read violated any religious duty on
the part of the child. There is no claim that as a condition of
attendance at the public schools, the defendants have forced
plaintiffs -- either the parents or the children -- to violate
their religious beliefs. In sum there is no claim of direct
The heart of the plaintiffs' free exercise claim is a
claim of "indoctrination": that the state has put pressure on their
children to endorse an affirmative view of gay marriage and has
thus undercut the parents' efforts to inculcate their children with
their own opposing religious views. The Supreme Court, we believe,
has never utilized an indoctrination test under the Free Exercise
Clause, much less in the public school context. The closest it has
come is Barnette, a free speech case that implicated free exercise
interests and which Smith included in its hybrid case discussion.
In Barnette, the Court held that the state could not coerce
acquiescence through compelled statements of belief, such as the
mandatory recital of the pledge of allegiance in public schools.
[End Page 38]
319 U.S. at 634, 642. It did not hold that the state could not
attempt to inculcate values by instruction, and in fact carefully
distinguished the two approaches. Id. at 631, 640; see also
Stewart, supra, at 74. We do not address whether or not an
indoctrination theory under the Free Exercise Clause is sound.
Plaintiffs' pleadings do not establish a viable case of
indoctrination, even assuming that extreme indoctrination can be a
form of coercion.
First, as to the parents' free exercise rights, the mere
fact that a child is exposed on occasion in public school to a
concept offensive to a parent's religious belief does not inhibit
the parent from instructing the child differently. A parent whose
"child is exposed to sensitive topics or information [at school]
remains free to discuss these matters and to place them in the
family's moral or religious context, or to supplement the
information with more appropriate materials." C.N., 430 F.3d at
185; see also Newdow, 542 U.S. at 16 (noting that the school's
requirement that Newdow's daughter recite the pledge of allegiance
every day did not "impair Newdow's right to instruct his daughter
in his religious views"). The parents here did in fact have
notice, if not prior notice, of the books and of the school's
overall intent to promote toleration of same-sex marriage, and they
retained their ability to discuss the material and subject matter
[End Page 39]
with their children. Our outcome does not turn, however, on
whether the parents had notice.
Turning to the children's free exercise rights, we cannot
see how Jacob's free exercise right was burdened at all: two books
were made available to him, but he was never required to read them
or have them read to him. Further, these books do not endorse gay
marriage or homosexuality, or even address these topics explicitly,
but merely describe how other children might come from families
that look different from one's own. There is no free exercise
right to be free from any reference in public elementary schools to
the existence of families in which the parents are of different
Joey has a more significant claim, both because he was
required to sit through a classroom reading of King and King and
because that book affirmatively endorses homosexuality and gay
marriage. It is a fair inference that the reading of King and King
was precisely intended to influence the listening children toward
tolerance of gay marriage. That was the point of why that book was
chosen and used. Even assuming there is a continuum along which an
intent to influence could become an attempt to indoctrinate,
however, this case is firmly on the influence-toward-tolerance end.
There is no evidence of systemic indoctrination. There is no
allegation that Joey was asked to affirm gay marriage. Requiring
[End Page 40]
a student to read a particular book is generally not coercive of
free exercise rights.
Public schools are not obliged to shield individual
students from ideas which potentially are religiously offensive,
particularly when the school imposes no requirement that the
student agree with or affirm those ideas, or even participate in
discussions about them. See Fleischfresser, 15 F.3d at 690;
Mozert, 827 F.2d at 1063-65, 1070; see also Bauchman, 132 F.3d at
558 ("[P]ublic schools are not required to delete from the
curriculum all materials that may offend any religious
sensibility." (quoting Florey v. Sioux Falls Sch. Dist. 49-5, 619 F.2d 1311
, 1318 (8th Cir. 1980) (internal quotation marks
omitted))). The reading of King and King was not instruction in
religion or religious beliefs.21 Cf. Barnette, 319 U.S. at 631
(distinguishing between compelling students to declare a belief
through mandatory recital of the pledge of allegiance, which
violates free exercise, and "merely . . . acquaint[ing students]
with the flag salute so that they may be informed as to what it is
or even what it means").
On the facts, there is no viable claim of
"indoctrination" here. Without suggesting that such showings would
Indeed, in Schempp the Court suggested that even if a
series of mandatory classroom Bible readings violated the Free
Exercise Clause, the study of the Bible or religion, if "presented
objectively as part of a secular program of education, may  be
effected consistently with the First Amendment." 374 U.S. at 225.
[End Page 41]
suffice to establish a claim of indoctrination, we note the
plaintiffs' children were not forced to read the books on pain of
suspension. Nor were they subject to a constant stream of like
materials. There is no allegation here of a formalized curriculum
requiring students to read many books affirming gay marriage. Cf.
Mozert, 827 F.2d at 1079 (Boggs, J., concurring) (concluding that
such facts could constitute a burden on free exercise, although
such a burden would be constitutionally permissible in the public
school context if parents still retained other educational
options). The reading by a teacher of one book, or even three, and
even if to a young and impressionable child, does not constitute
Because plaintiffs do not allege facts that give rise to
claims of constitutional magnitude, the district court did not err
in granting defendants' motion to dismiss the claims under the U.S.
Public schools often walk a tightrope between the many
competing constitutional demands made by parents, students,
teachers, and the schools' other constituents. Cf. Morse v.
Frederick, 127 S. Ct. 2618
(2007) (students' First Amendment free
speech rights versus interest in administering schools without
encouragement of illegal drug use); Hennessy v. City of Melrose,
194 F.3d 237
(1st Cir. 1999) (public school's interest in
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implementing its curriculum versus student teacher's interest in
expressing opposition to abortion and homosexuality); Zykan ex rel.
Zykan v. Warsaw Cmty. Sch. Corp., 631 F.2d 1300
, 1304 (7th Cir.
1980) (students' First Amendment "freedom to hear" under Va. State
Pharmacy Bd. v. Va. Citizens Consumer Council, Inc., 425 U.S. 748
(1976), versus school's interest in limiting exposure to materials
that might harm intellectual and social development); see also
Lyng, 485 U.S. at 452 ("The Constitution does not, and courts
cannot, offer to reconcile the various competing demands on
government, many of them rooted in sincere religious belief, that
inevitably arise in so diverse a society as ours."). The balance
the school struck here does not offend the Free Exercise or Due
Process Clauses of the U.S. Constitution.
We do not suggest that the school's choice of books for
young students has not deeply offended the plaintiffs' sincerely
held religious beliefs. If the school system has been
insufficiently sensitive to such religious beliefs, the plaintiffs
may seek recourse to the normal political processes for change in
the town and state. See Smith, 494 U.S. at 890. They are not
entitled to a federal judicial remedy under the U.S. Constitution.
We affirm the district court's dismissal with prejudice
of plaintiffs' federal claims and its dismissal without prejudice
of the state claims so that they may be reinstated, should
plaintiffs choose, in state court.
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