Judges in open mutiny against Supreme Court on parental rights in vaccine, gender policies: petition

Parents have the right to notice and consent before public schools make decisions that interfere with the religious upbringing of their children, including exposing students to LGBTQ themes and treating them as the opposite sex, under recent Supreme Court decisions.

Lawyers for a West Virginia family are taking perhaps the biggest swing yet on how far the Mahmoud and Mirabelli precedents extend, challenging public health mandates for minors with only secular exemptions as an infringement of parental rights.

Krystle and Anthony Perry are petitioning the Supreme Court to review an appeals court's refusal to block The Mountain State's requirement that their daughter be "fully vaccinated" to remotely attend the West Virginia Virtual Academy, with all learning at home, violating their religious objections to "vaccinations developed using aborted fetal cells."

Despite the state's "blanket vaccine exemption" for students who are homeschooled or attend a learning pod or microschool, without regard to religion, the oft-overturned 4th U.S. Circuit Court of Appeals did not subject the law to strict scrutiny, which requires the government to show a compelling interest in burdening religion and no less restrictive way to achieve it.

Because the Perrys don't allege the girl's desire to attend the virtual school is "religiously motivated [...] this is merely an instance of West Virginia treating some secular activity more favorably than other secular activity," the split panel ruled in April, subjecting the mandate to the rubber-stamp "rational basis" standard.

All nominated by Republican presidents in the 20th century, the majority claimed Mahmoud only addressed an "instrument of ideological indoctrination,” while the dissenting judge emphasized that under Mahmoud the virtual school setting doomed a selective vaccination mandate and accused his peers of ignoring Mirabelli.

The parents' lawyers at the Alliance Defending Freedom asked the high court to apply strict scrutiny "even when the religious burden is implicated by an act" that is not itself religiously motivated. It should do the same under Mahmoud for any law whose "non-curricular requirement" substantially burdens parental rights in religious development.

This spring's Mirabelli emergency order, which reinstated a permanent injunction against California's so-called gender secrecy policies for public schools, similarly put federal courts on notice that Mahmoud was not limited to curriculum.

"Our country was founded on the promise that people of faith should be free to exercise their deeply held beliefs," said ADF Vice President of Appellate Advocacy John Bursch. “It makes no sense to deny an exception to a student attending virtual school" while granting them for other forms of off-site school.

The Perrys' lawyers are also behind a new lawsuit to expand Mahmoud and Mirabelli to public schools and athletic associations when they allow males who identify as girls to participate in girls' sports, requiring notice and opt-out before any female athlete faces a male.

The progressive litigation and advocacy group Democracy Forward warned on the June anniversary of Mahmoud that "many allied right-wing groups" are trying to get the precedent applied broadly, "including to exempt families from public health requirements, undermine other inclusive policies and practices, and use public funds for religious ends." 

Those efforts have failed "for the most part" despite SCOTUS having "added fuel to this fire" in Mirabelli, said the group chaired by Marc Elias, the Democratic super-lawyer behind the Russia collusion dossier. Democracy Forward said it's compiling a report on "the ongoing effort to expand Mahmoud well beyond the actual decision."

SCOTUS sent a "signal [that] is difficult to ignore" last December when, for the first time, it "set aside a lower court judgment upholding a vaccine mandate that lacked religious exemptions," without even oral argument or a written opinion, according to a critical essay in the May edition of the Harvard Law Review.

By telling the 2nd Circuit to take another look at the Amish challenge to New York's school vaccine mandate in light of Mahmoud, the high court "has quietly unsettled one of the most enduring premises of its free exercise jurisprudence," that vaccine mandates are the "canonical limit case" for religious liberty claims, the essay said.

Permanent implication in sin versus 'exposure' to material that 'merely challenges'

The Perrys are approaching the high court in a similar posture as that of Orthodox Jew Daniel Grand, whose Ohio town ordered him to get a permit to pray with others in his own home. 

The non-lawyer amazed veteran court-watchers when SCOTUS accepted his self-written petition, an extremely rare feat, and Grand is now drawing diverse supporters for his religious liberty challenge to residential zoning rules, including more than 50 federal lawmakers, 14 states and an interfaith coalition apparently wider than that behind Mahmoud.

Just as Grand can't conscientiously drive to his far-away synagogue on the Sabbath, necessitating an in-home minyan to fulfill his religious obligations, the Perrys cannot afford to put their daughter in any form of paid school or teach her themselves, 4th Circuit Judge Paul Niemeyer's dissent emphasized.

Krystle Perry is the "sole breadwinner" and Anthony is "totally disabled," so he can't perform "all the duties of homeschooling," Niemeyer wrote. "The Perrys thus faced potential criminal prosecution" under West Virginia law for failure to educate their daughter unless they violated their religious beliefs by fully vaccinating her to keep attending free virtual school.

The West Virginia mandate is replete with exceptions for both forms of school and who is covered, with no vaccination required for school staff or "proof of vaccination for those attending school events," the petition says, emphasizing Niemeyer said the policy singles out religion while exempting other forms of schooling with "minimal" risk of "exposure to other children."

The state's burden on religious parents is even worse than that imposed by Maryland's Montgomery County Public Schools when it conditioned Tamer Mahmoud's access to public education for his son on "exposure" to material that "merely challenges" his Muslim beliefs on gender and sexuality, the petition says. 

"Here, receiving the vaccine is permanent and is itself a sin" to the Perrys by implicating them in abortion, which "cannot be undone or untaught," the filing says. But "lower courts still have not received the message" after Mirabelli, particularly the 2nd and 4th circuits, by "artificially cabining Mahmoud to avoid applying strict scrutiny."

SCOTUS singled out the 6th and 9th circuits in Mirabelli for upholding a transgender restroom policy against religious parents' challenge and the California gender secrecy mandate, respectively, yet the 4th Circuit tried to write off Mirabelli as "a preliminary action that did not involve a public health measure," the petition says.

The 2nd Circuit didn't take the hint when it re-upheld the New York vaccine mandate in June as compliant with Mahmoud, simply a "health-and-safety condition on in-person school attendance to reduce the spread of communicable disease," and limited Mirabelli to policies that hide from parents "a matter central to their child’s identity and upbringing."

The high court must put down a mutiny in the lower courts on Mahmoud, the petition says. "The misreading is taking root and growing. This Court should intervene now before the lower courts bear more bad fruit."