Amicus Curiae Brief — 303 Creative LLC, et al., Petitioners v. Aubrey Elenis, et al.

Supreme Court briefJun 2, 2022

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No. 21-476

In the Supreme Court of the United States

__________

303 CREATIVE LLC, ET AL.,

AUBREY ELENIS, ET AL.,

__________

Petitioners,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE TENTH CIRCUIT

__________

BRIEF AMICUS CURIAE OF

THE BECKET FUND FOR RELIGIOUS LIBERTY

IN SUPPORT OF PETITIONERS

__________

ERIC C. RASSBACH

Counsel of Record

WILLIAM J. HAUN

DANIEL L. CHEN

JAMES J. KIM

THE BECKET FUND FOR

RELIGIOUS LIBERTY

1919 Pennsylvania Ave. NW

Suite 400

Washington, D.C. 20006

(202) 955-0095

erassbach@becketlaw.org

Counsel for Amicus Curiae

QUESTION PRESENTED

Whether the Free Speech Clause treats religious

speech as core speech entitled to the highest level of

protection.

TABLE OF CONTENTS

Page

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

INTEREST OF THE AMICUS .................................. 1

INTRODUCTION ....................................................... 1

ARGUMENT ............................................................... 3

The history and tradition of freedom of speech

teach that religious speech is core speech

entitled to the highest level of protection. .......... 3

A. In the Anglo-American tradition before the

Founding, religious speech lay at the

origins and core of freedom of speech. ............ 3

B. At the Founding, the Framers chose, and

the American people adopted, broad

protections for religious speech. .................... 15

C. Since the Founding, religious speech has

consistently been treated as core speech

under the Free Speech Clause that enjoys

the highest level of constitutional

protection. ...................................................... 19

II. The text, history, and tradition of the Free

Speech Clause show that religious speech

receives the highest level of protection

available. ............................................................ 29

III. Employing core speech analysis to resolve this

appeal will have additional salutary effects on

free speech jurisprudence. ................................. 32

CONCLUSION ......................................................... 35

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Americans for Prosperity Found. v.

Bonta,

141 S. Ct. 2373 (2021) ............................................ 1

Bethel Sch. Dist. No. 403 v. Fraser,

478 U.S. 675 (1986) ......................................... 27-28

Cantwell v. Connecticut,

310 U.S. 296 (1940) .............................................. 24

Capitol Square Rev. & Advisory Bd. v.

Pinette,

515 U.S. 753 (1995) .............................................. 26

City of Erie v. Pap’s A.M.,

529 U.S. 277 (2000) .............................................. 28

Cohen v. California,

402 U.S. 15 (1971) .......................................... 33, 34

Commonwealth v. Cronin,

2 Va. Cir. 488 (1855) ............................................ 20

Connick v. Myers,

461 U.S. 138 (1983) ........................................ 26, 29

Douglas v. City of Jeannette,

319 U.S. 157 (1943) .............................................. 26

FEC v. Cruz,

142 S. Ct. 1638 (2022) .................................... 27, 30

Florida Bar v. Went For It, Inc.,

515 U.S. 618 (1995) .............................................. 28

Fulton v. City of Philadelphia,

141 S. Ct. 1868 (2021) .......................................... 20

Gitlow v. New York,

45 S. Ct. 625 (1925) .............................................. 23

Good News Club v. Milford Cent. Sch.,

533 U.S. 98 (2001) ........................................... 26-27

Greater Baltimore Ctr. for Pregnancy

Concerns, Inc. v. Mayor & City

Council of Baltimore,

879 F.3d 101 (4th Cir. 2018) .................................. 1

Greater Baltimore Ctr. for Pregnancy

Concerns, Inc. v. Mayor & City

Council of Baltimore,

138 S. Ct. 2710 (2018) ............................................ 1

Hosanna-Tabor Evangelical Lutheran

Church & Sch. v. EEOC,

565 U.S. 171 (2012) ........................................ 27, 32

Houston Cmty. Coll. Sys. v. Wilson,

142 S. Ct. 1253 (2022) ..................................... 30-31

Jones v. City of Opelika,

316 U.S. 584 (1942) .............................................. 26

Jones v. City of Opelika,

319 U.S. 103 (1943) .............................................. 26

Lamb’s Chapel v. Center Moriches Union

Free Sch. Dist.,

508 U.S. 384 (1993) .............................................. 27

Lemon v. Kurtzman,

403 U.S. 602 (1971) .............................................. 34

Lovell v. City of Griffin,

303 U.S. 444 (1938) .............................................. 26

Mahanoy Area Sch. Dist. v. B.L.,

141 S. Ct. 2038 (2021) .......................................... 28

Martin v. City of Struthers,

319 U.S. 141 (1943) .............................................. 26

Minersville Sch. Dist. v. Gobitis,

310 U.S. 586 (1940) .............................................. 25

Morse v. Frederick,

551 U.S. 393 (2007) .............................................. 28

Murdock v. Pennsylvania,

319 U.S. 105 (1943) .................................. 24, 25, 29

People v. Philips,

1 W.L.J. 109 (Gen. Sess., N.Y. 1813) ................... 20

Ramirez v. Collier,

142 S. Ct. 1264 (2022) .................................... 30, 31

Rosenberger v. Rector and Visitors of

Univ. of Va.,

515 U.S. 819 (1995) .............................................. 26

Saia v. New York,

334 U.S. 558 (1948) .............................................. 26

Schneider v. New Jersey,

308 U.S. 147 (1939) .............................................. 26

Shurtleff v. City of Boston,

142 S. Ct. 1583 (2022) ............................................ 1

The Trial of the Seven Bishops for

Publishing a Libel [1688],

12 How. St. Tr. 183 .............................................. 11

United States v. Jimenez-Shilon,

--- F.4th ----, 2022 WL 1613203

(11th Cir. 2022) .................................................... 30

Village of Schaumburg v. Citizens for a

Better Env’t,

444 U.S. 620 (1980) .............................................. 24

Watchtower Bible & Tract Soc’y of N.Y.,

Inc. v. Village of Stratton,

536 U.S. 150 (2002) .............................................. 24

West Virginia State Board of Education

v. Barnette,

319 U.S. 624 (1943) ........................................ 25, 26

Whole Woman’s Health v. Hellerstedt,

136 S. Ct. 2292 (2016) ..................................... 29-30

Widmar v. Vincent,

454 U.S. 263 (1981) .............................................. 27

Wooley v. Maynard,

430 U.S. 705 (1977) .............................................. 27

vii

Constitutional Provisions and Statutes

An Act Respecting the Oath to the

Succession, 26 Hen.VIII c.2 (1534) ..................... 7-8

Act of Supremacy, 26 Hen.VIII c.1

(1534) ...................................................................... 7

Constitutions of Clarendon (1164) .............................. 4

Conventicle Act 1664, 16 Car.II c.4 .......................... 10

Magna Carta (1215)..................................................... 5

N.Y. Const. of 1777, Art. XXXVIII ............................ 31

Popish Recusants Act 1592, 35 Eliz.I, c.2 ................... 9

Popish Recusants Act 1605, 3 & 4 Jac. ....................... 9

Religion Act 1592, 35 Eliz.I, c.1 .................................. 9

Test Act 1673, 25 Car.II. c.2...................................... 10

Toleration Act, 1 Will. & Mary c.18

(1688) .................................................................... 11

U.S. Const., Art. VI (1789) ........................................ 18

Virginia Statute for Religious Freedom

(1786) .................................................................... 19

Other Authorities

4 Annals of Cong. 934 (1794) .................................... 19

Cong. Globe, 35th Cong., 2d Sess. (1859) ................. 22

viii

Cong. Globe, 38th Cong., 2d Sess. (1864) ................. 23

Cong. Globe, 39th Cong., 1st Sess. (1865) ................ 23

Cong. Globe, 42d Cong., 1st Sess. (1871) .................. 22

I Digest of Justinian 1.5.4 (Alan Watson,

trans. 1985)............................................................. 4

5 The Founders’ Constitution 189 (Philip

B. Kurland & Ralph Lerner eds.,

1987) ..................................................................... 11

Louisiana Constitutional and AntiFanatical Society, Digest of the Laws

Relative to Slaves and People of Free

Colour in the State of Louisiana

(1835) .................................................................... 22

2 Compact Edition of the Oxford English

Dictionary (1971) .................................................... 6

Peter Ackroyd, The Life of Thomas More

(1998) ...................................................................... 8

John Adams, Letter to Thomas Boylston

Adams (Mar. 18, 1794) ......................................... 16

Joel Alicea & John D. Ohlendorf,

Against the Tiers of Constitutional

Scrutiny, National Affairs (Fall 2019)................. 30

Akhil Reed Amar, How America’s Constitution Affirmed Freedom of Speech

Even Before the First Amendment, 38

Cap. U. L. Rev. 503 (2010) ................................... 19

Frank Barlow, Thomas Becket (1986)......................... 5

Wendell Bird, The Revolution in

Freedoms of Press and Speech (2020) ........ 9, 11, 14

William Blackstone, 4 Commentaries on

the Laws of England (1769) ............................ 10-11

David S. Bogen, The Origins of Freedom

of Speech and Press, 42 Md. L. Rev.

429 (1983) ....................................................... 13, 19

2 Bracton, De legibus et consuetudinibus

Angliæ (c.1235) (Samuel Thorne,

trans. 1977)......................................................... 4, 6

Edmund Burke, Speech on Conciliation

with the Colonies (Mar. 22, 1775) ....................... 15

Jud Campbell, The Emergence of

Neutrality, 131 Yale L.J. 861 (2022).................... 30

W.W. Edwards, Bracton and His

Relation to the Civil Roman Law, in

4 The Green Bag (1892). ........................................ 4

Jonathan Elliot, 2 The Debates in the

Several State Conventions on the

Adoption of the Federal Constitution

(2d ed. 1941) ......................................................... 18

Thomas Erskine May, Erskine May's

Treatise on the Law, Privileges,

Proceedings and Usage of Parliament

(David Natzler & Mark Hutton eds.,

25th ed. 2019) ......................................................... 6

David Hackett Fischer, Albion’s Seed

(1989) .................................................................... 12

John Foxe, 2 Actes and Monuments

(1610) ...................................................................... 9

Philip Hamburger, Natural Rights,

Natural Law, and American

Constitutions, 102 Yale L.J. 907

(1993) .................................................................... 16

Ernest F. Henderson, Select Historical

Documents of the Middle Ages (1892) .................... 4

James H. Hutson, “The Emergence of

the Modern Concept of a Right in

America,” in The Nature of Rights at

the American Founding and Beyond

(Barry Alan Shain, ed. 2007) ............................... 16

John D. Inazu, Liberty’s Refuge: The

Forgotten Freedom of Assembly

(2012) .............................................................. 10, 13

Brett M. Kavanaugh, Keynote Address:

Two Challenges for the Judge as

Umpire: Statutory Ambiguity and

Constitutional Exceptions, 92 Notre

Dame L. Rev. 1907 (2017) .................................... 30

Kurt Lash, The Second Adoption of the

Free Exercise Clause: Religious

Exemptions Under the Fourteenth

Amendment, 88 Nw. U. L. Rev. 1106

(1994) .............................................................. 21, 22

Douglas Laycock, Continuity and

Change in the Threat to Religious

Liberty: The Reformation Era and the

Late Twentieth Century, 80 Minn. L.

Rev. 1047 (1996) ..................................................... 8

Douglas Laycock, High-Value Speech

and the Basic Educational Mission of

A Public School: Some Preliminary

Thoughts, 12 Lewis & Clark L. Rev.

111 (2008) ............................................................... 7

John Locke, Letter Concerning

Toleration (1689) .................................................. 11

Michael W. McConnell, Establishment

and Disestablishment at the

Founding, Part I: Establishment of

Religion, 44 Wm. & Mary L. Rev.

2105, 2162 (2003) ........................................... 12, 34

Michael W. McConnell, The Origins and

Historical Understanding of Free

Exercise of Religion,

103 Harv. L. Rev. 1409

(1990) ...................7, 9, 10, 12, 13, 17, 18, 19, 21, 31

Michael W. McConnell, Time,

Institutions, and Interpretation,

95 B.U. L. Rev. 1745 (2015) ................................. 34

Michael W. McConnell, Tradition and

Constitutionalism Before the

Constitution, 1998 U. Ill. L. Rev. 173

(1998) .................................................................... 17

xii

Mark A. Noll, A History of Christianity

in the United States and Canada

(1992) .................................................................... 15

Jason Peacey, Robert G. Ingram, and

Alex W. Barber, “Freedom of speech

in England and the anglophone

world, 1500-1850,” in Freedom of

Speech, 1500-1850 (Ingram, et al.,

eds.) (2020) ............................................................. 7

Eric Rassbach, Town of Greece v. Galloway: The Establishment Clause and

the Rediscovery of History, Cato Sup.

Ct. Review (2013-2014) ........................................ 33

Ezra Stiles, A Discourse on the Christian

Union (1760) quoted in Robert A.

Ferguson, Reading the Early Republic 60 (2004) ..................................................... 15-16

Jeffrey S. Sutton, Barnette, Frankfurter,

and Judicial Review, 96 Marquette

L. Rev. 133 (2012)................................................. 23

Susan Wyly-Jones, The 1835 AntiAbolition Meetings in the South: A

New Look at the Controversy over the

Abolition Postal Campaign, 47 Civil

War History 289 (2001) ........................................ 22

INTEREST OF THE AMICUS 1

The Becket Fund for Religious Liberty is a nonprofit, nonpartisan law firm that protects the free expression of all religious faiths. Becket has represented

agnostics, Buddhists, Christians, Hindus, Jains, Jews,

Muslims, Santeros, Sikhs, and Zoroastrians, among

others, including in multiple cases at this Court.

Becket has litigated numerous cases under the

Free Speech Clause, as both party and amicus counsel.

See, e.g., Greater Baltimore Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of Baltimore, 879

F.3d 101 (4th Cir.), cert. denied, 138 S. Ct. 2710 (2018);

Americans for Prosperity Found. v. Bonta, 141 S. Ct.

2373 (2021); Shurtleff v. City of Boston, 142 S. Ct. 1583

(2022).

Becket submits this brief to explain that the history and tradition of freedom of speech demonstrate

that religious speech enjoys the highest level of protection available under the Free Speech Clause.

INTRODUCTION

If its latest trip to this Court proves anything, it is

that Colorado has learned nothing and forgotten nothing. By now Colorado ought to know that aggressively

applying its public accommodation law to force conformity on religious dissenters violates Court-developed rules against compelled speech, content discrimination, and viewpoint discrimination. Yet Colorado

No counsel for a party authored this brief in whole or in

part and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief.

All parties have consented to the filing of this brief.

obstinately continues, despite hornbook law that—as

Petitioners explain—ought to make this a simple case.

But there is an even simpler—and narrower—way

to resolve this dispute, one that runs through the history and tradition of freedom of speech in Anglo-American law. That history is a history of religious speakers: of Thomas Becket and Thomas More, popish recusants and seditious sectaries, Quakers and abolitionists, and more than a few Jehovah’s Witnesses. At

every turn, religious dissenters acting on conscience

opened the way to speech protections. Freedom of

speech first emerged within the Anglo-American tradition as freedom of religious speech, and religious

speech has retained that special role within speech jurisprudence ever since. Today, that history means that

religious speech—like political speech—is core speech

that cannot be burdened without proper justification.

History and tradition also show that burdens on religious speech can be justified in only very limited circumstances identified by the Founding generation,

such as when the speech threatens “peace and safety”

or promotes “licentiousness.” Here, Colorado’s marketplace access and dignity justifications do not qualify.

Taking this simpler and narrower path to resolving

this appeal has two additional virtues to commend it.

First, it would provide an additional avenue for resolving a numerically small but recurring class of “wedding vendor” cases—cases that typically involve a provider of wedding-related services who has religious objections to participating in the celebration of a samesex wedding. Looking to sincere religious belief to determine what category of speech is involved is a judicially manageable task, and one the lower courts routinely undertake.

Second, applying core speech analysis here would

firmly re-root at least one subcategory of speech jurisprudence in the history and tradition of the Free

Speech Clause. That would provide invaluable guidance to lower courts confronting government attempts

to inhibit religious speech by wedding vendors. But it

would also have broader helpful effects on the law of

religious speech. By explaining that the Free Speech

Clause ought to be read in light of historical practices

and understandings—like other parts of the Bill of

Rights—the Court would move away from a deracinated Free Speech Clause and revive history as a guide

in speech cases across the board.

ARGUMENT

I. The history and tradition of freedom of

speech teach that religious speech is core

speech entitled to the highest level of

protection.

The Free Speech Clause stands in a long tradition

of protection for religious speech that stretches back

from well before the Founding and reaches forward to

cases decided by this Court in just the last few years.

Indeed, in the Anglo-American tradition, freedom of

speech began as freedom of religious speech, and it has

retained a preferred position in our constitutional order ever since.

A. In the Anglo-American tradition before

the Founding, religious speech lay at the

origins and core of freedom of speech.

1. In English law, freedom of speech began as freedom of religious speech, and specifically as institutional religious speech. To be sure, the primary definition of freedom as a general concept in early English

law was stated in individual terms: “Freedom is the

natural power of every man to do what he pleases, unless forbidden by law or force.” 2 Bracton, De legibus et

consuetudinibus Angliæ 29 (c.1235) (Samuel Thorne,

trans. 1977). 2 But in practice individual freedom was

limited to a very small group of rights-bearers, and

even they were subject to “force” by those with more

power. Ibid.

The only entity in post-Conquest England with a

kind of nascent freedom of speech as against the government (that is, the King) was the Church. And thus

it was between King and Church where the first conflicts over freedom of speech arose. For example, the

Constitutions of Clarendon that eventually led to the

murder of Archbishop Thomas Becket included not

just the well-known provision forcing prosecutions of

“criminous clerks” into the King’s courts; the Constitutions also forbade church officials from excommunicating vassals of the King without first asking the

King to “do justice” with respect to those vassals, or

ordaining peasants without consent of the relevant

lord. Constitutions of Clarendon ¶¶ 7, 16 (1164), reproduced and translated in Ernest F. Henderson, Select Historical Documents of the Middle Ages 13-15

(1892). In fact, it was Becket’s excommunication of

three bishops—an act that was pure institutional religious speech—that reportedly so enraged the King

Like many of the principles of English law described in

Bracton, this understanding of freedom was ultimately derived from Roman law. See I Digest of Justinian 1.5.4 (Alan

Watson, trans. 1985); W.W. Edwards, Bracton and His Relation to the Civil Roman Law, in 4 The Green Bag 196

(1892).

that he nudged his knights to act against Becket. See

Frank Barlow, Thomas Becket 235 (1986).

Becket’s murder in 1170 and the societal condemnation of the King that followed shook English society

and the English polity to its foundations. But in the

end, the incident resulted in a society-wide recognition

that the Church had a limited form of freedom of religious institutional speech that the King had no right

to impair. 3 It was no accident, then, that the first freedom granted in Magna Carta was King John’s promise

“that the English Church shall be free, and shall have

its rights undiminished, and its liberties unimpaired.”

Magna Carta (1215).

The interaction around Becket’s murder represents

a kind of leitmotif of the expansion of freedom of

speech over the centuries. Throughout English and

American history, advances in freedom of speech have

often followed the same pattern: (1) government officers seek to suppress religious speech, (2) religious dissenters defy the government, (3) the government retaliates, and (4) society reacts to the retaliation by

(eventually) recognizing a new principle of freedom of

speech.

Of course that does not mean that freedom of

speech as we know it today sprang full-grown from the

mind of the Church. Medieval lawyers tended to think

of these institutional freedoms not in terms of rights,

much less individual rights, but in terms of jurisdiction:

This proto-freedom of speech was not enjoyed by the

only other religious community present in England at the

time—England’s Jews, who were later expelled in 1290.

There are spiritual causes, in which a lay

judge has neither cognisance nor (since he has

no power of coercion) execution, * * * and secular causes, jurisdiction over which belongs to

kings and princes who defend the realm, with

which ecclesiastical judges must not meddle,

since their rights or jurisdictions are limited

and separate, except when sword ought to aid

sword, for there is a great difference between

the clerical estate and the realm.

2 Bracton 304. The Church’s freedoms were conceived

of as more in the nature of what we today call “structural” provisions of the Constitution, rather than the

“rights” provisions. But as a practical matter, this

meant that the Church had a species of freedom of institutional speech, a freedom it was initially almost

alone in enjoying.

In time, this nascent freedom of speech began to

spread beyond church bodies to Parliament, where the

Lords Temporal sat alongside the Lords Spiritual,

both of whom were eventually joined by the Commons.

The very name of Parliament reflected that body’s focus on speech. See Parliament, 2 Compact Edition of

the Oxford English Dictionary 2080 (1971) (derived

from French “parler”). In fact, “[b]y the latter part of

the fifteenth century, the Commons of England seems

to have enjoyed an undefined right to freedom of

speech.” Thomas Erskine May, Erskine May’s Treatise

on the Law, Privileges, Proceedings and Usage of Parliament ¶12.4 & n.1 (David Natzler & Mark Hutton

eds., 25th ed. 2019). But even with this development

of what later became the freedom of speech and debate, the freedom of speech remained focused on institutions rather than individuals.

2. It was only during the religious conflicts that

erupted in the 1500s with the English Reformation

that individuals began to invoke freedom of speech,

eventually resulting in the extension of freedom of religious speech to individuals. In fact, scholars have

concluded that throughout the period from the Reformation to the American Revolution, freedom of speech

remained a religious concept: “Early debates about

free speech were fundamentally debates about the

freedom of religious speech.” Jason Peacey, Robert G.

Ingram, and Alex W. Barber, “Freedom of speech in

England and the anglophone world, 1500-1850,” in

Freedom of Speech, 1500-1850 (Ingram, et al., eds.)

(2020) (emphasis in original). See also Douglas Laycock, High-Value Speech and the Basic Educational

Mission of A Public School: Some Preliminary

Thoughts, 12 Lewis & Clark L. Rev. 111, 124 (2008)

(“In the early modern era, when the idea of free speech

was struggling for acceptance, Europe was embroiled

in religious conflict growing out of the Reformation,

and the speech that governments most wanted to suppress was very often religious speech.”).

King Henry VIII broke from Rome in 1534, and

quickly moved to suppress “both Roman Catholicism

and extreme Protestantism (of which Puritanism was

the most prominent element).” Michael W. McConnell,

The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1421 (1990)

(“Origins”). The legal form this suppression took was

a series of statutes adopted under Henry and his successors. See Act of Supremacy, 26 Hen.VIII c.1 (1534)

(recognizing Henry VIII as “Supreme Head” of the

Church of England); An Act Respecting the Oath to the

Succession, 26 Hen.VIII c.2 (1534) (requiring all subjects to swear an oath recognizing Anne Boleyn as

Henry VIII’s lawful wife and their children as legitimate heirs); Douglas Laycock, Continuity and Change

in the Threat to Religious Liberty: The Reformation

Era and the Late Twentieth Century, 80 Minn. L. Rev.

1047, 1057 (1996).

These statutes immediately resulted in conflicts

over freedom of religious speech for individuals, including both the right to speak and the right to remain

silent. For example, Sir Thomas More sought to remain true to his Catholic religious beliefs by staying

silent about whether he agreed with the King’s supremacy over the Church in England. See Peter

Ackroyd, The Life of Thomas More 353-354 (1998). After he was convicted, More claimed that his duty to

comply with his religious conscience ought to excuse

him from punishment. Ibid. He was nevertheless executed in 1535; More’s assertion of both a right to conscientious silence and a right to conscientious speech

were not enough to save his own life. Yet More’s claim

to freedom of religious speech for the individual would

echo through the following centuries and would eventually be vindicated.

As the Reformation unfolded, Henry’s successors,

both Protestant and Catholic, continued to deploy the

law to punish speech by their religious opponents. Under Edward VI, the Church of England “promulgated

the Book of Common Prayer, and the Acts of Uniformity required all persons to worship at services conducted in that form and no other.” Laycock, Continuity

and Change, 80 Minn. L. Rev. at 1058. Dissenters,

both Catholics and nonconforming Protestants, were

executed for engaging in religious speech acts that

contravened the Acts of Uniformity. During her brief

reign, Queen Mary sought to reestablish Catholicism;

Parliament accordingly reenacted pre-Reformation religious speech restrictions, resulting in the executions

of hundreds of Protestant dissenters, some of whom

had themselves been involved in the execution of

Catholics during Edward’s reign. See John Foxe, 2

Actes and Monuments 1355 (1610) (describing burning

at the stake of John Rogers). The reign of Queen Elizabeth saw suppression of the religious speech and religious conduct of both Catholics and nonconforming

Protestants. In 1592, Parliament enacted a pair of

statutes directed at religious dissenters. The Religion

Act 1592, 35 Eliz.I, c.1, suppressed Protestant nonconformists (“seditious sectaries”) and the Popish Recusants Act 1592, 35 Eliz.I, c.2—one of many recusancy

acts enacted during Elizabeth’s reign—suppressed

Catholics.

In the runup to the English Civil War, the Stuart

kings intensified attempts to induce conformity. In

1605, Parliament enacted the Popish Recusants Act

1605, 3 & 4 Jac., which effectively prohibited religious

speech by Catholics after the failure of the Gunpowder

Plot. And under King Charles I, Archbishop of Canterbury William Laud “brought six show cases in the Star

Chamber in the 1630s,” all against Puritans who had

published religious critiques of the Church of England

and its officials. Wendell Bird, The Revolution in Freedoms of Press and Speech 83-87 (2020). The defendants had their ears cropped, their noses slit, and their

faces branded for engaging in religious speech.

Once the Civil War broke out in 1642, “Protestant

dissenters took power,” freeing Puritans who had been

imprisoned for their publication of their religious

views, deposing Charles I, and restricting religious

speech according to their own beliefs. They “rewr[ote]

the prayer book and confession of faith” to conform to

Calvinist and Presbyterian beliefs, while also banning

religious freedom for “papists, the adherents of prelacy

and the advocates of ‘blasphemous, licentious or profane’ doctrines.” McConnell, Origins at 1421. These

new rules were all enforced by means of religious

speech restrictions enforced by the death penalty and

other punishments.

After the monarchy was restored in 1660, the

Church of England was reconstituted and new statutes were enacted to restrict religious speech, including the Conventicle Act 1664, 16 Car.II c.4, and the

Test Act 1673, 25 Car.II. c.2. The Conventicle Act forbade unofficial church assemblies, prohibiting

Protestant nonconformists from “attending a religious

meeting or assembling themselves together” with five

persons or more not of the same household. John D.

Inazu, Liberty’s Refuge: The Forgotten Freedom of Assembly 24 (2012) (quoting Conventicle Act 1664). The

Test Act operated by means of compelled speech, “requir[ing] officeholders to swear an oath in court denying transubstantiation and acknowledging the King’s

supremacy over the Church and to present proof that

they had taken communion within the preceding year

in accordance with the rites of the Church of England.”

McConnell, Origins at 1421-1422. “The anti-Catholic

elements of the Test Act persisted throughout the

eighteenth century.” Ibid. As Blackstone later put it,

these tests were designed to protect the established

church “against perils from non-conformists of all denominations, infidels, turks, jews, heretics, papists,

and sectaries[.]” William Blackstone, 4 Commentaries

on the Laws of England 57 (1769).

The Glorious Revolution of 1688 marked another

milestone towards recognition of individual claims to

freedom of religious speech. The Trial of the Seven

Bishops was one of the main precipitating events of

the Glorious Revolution. See The Trial of the Seven

Bishops for Publishing a Libel [1688] 12 How. St. Tr.

183, 415, reprinted in 5 The Founders’ Constitution

189, 191 (Philip B. Kurland & Ralph Lerner eds.,

1987). The trial involved the prosecution of seven Anglican bishops for seditious libel. The bishops had petitioned King James II to be exempted from his command to read a prescribed proclamation from the pulpits, on the grounds that it violated their consciences,

and they were prosecuted for making the petition.

Bird, Revolution in Freedoms at 40. The jury acquitted

the bishops. Ibid.

The Glorious Revolution itself—which deposed

James II and significantly increased parliamentary

power—brought further reduction in restrictions on

religious speech in its wake. Almost immediately after

William and Mary’s reign began, Parliament passed

the Toleration Act 1688, which lifted restrictions on

worship and education for nonconformist Protestants

(albeit only Trinitarian ones). See 1 Will. & Mary c.18

(1688). The Act tracked the logic of Locke’s Letter Concerning Toleration, written in 1685 and published in

1689. See John Locke, Letter Concerning Toleration

(1689). While still exclusive, limiting freedom of religious speech to only Trinitarian Protestants, the Act

was fundamentally an expansion of the concept of freedom of religious speech.

3. The American colonies took root during, and in

large part because of, the ongoing religious conflicts in

England, and their religious settlements reflected that

reality. English colonies were often founded by groups

fleeing England after defeats during the religious

wars. See David Hackett Fischer, Albion’s Seed 6-24

(1989) (New England settled by Puritans and Virginia

by Cavaliers at times when each group was on the losing side of the English Civil War).

Some colonists brought English censoriousness in

matters of religious speech with them. This was especially true in Massachusetts and Virginia—two states

with religious establishments. See McConnell, Origins

at 1420. Massachusetts banished Roger Williams to

Rhode Island, whipped and mutilated other dissenters, and hanged four Quaker preachers on Boston

Common. Michael W. McConnell, Establishment and

Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2162

(2003). The “authorities blocked the Presbyterians’

ability to preach at every turn,” while “Baptists continued to be horsewhipped and jailed for their preaching until the Revolution.” McConnell, Origins at 1421.

For its part, Virginia had a High Anglican establishment that assiduously suppressed dissenting religious

speech. “In the eighteenth century, Virginia was the

most intolerant of the colonies.” Ibid. It expelled “ministers sent to serve the small Puritan community” and

“the Catholic Lord Baltimore.” Ibid.

By contrast, other colonies did something unprecedented in the English-speaking world: from their very

beginnings, they embraced across-the-board freedom

of religion and freedom of religious speech, for both in-

dividuals and institutions. Maryland was an early example, though it later became more restrictive. “The

term ‘free exercise’ first appeared in an American legal

document in 1648, when Lord Baltimore required his

new Protestant governor and councilors in Maryland

to promise not to disturb Christians (‘and in particular

no Roman Catholic’) in the ‘free exercise’ of their religion.” McConnell, Origins at 1425.

Pennsylvania was purposely founded as a haven

for religious dissent. In 1670, William Penn had been

arrested and tried for violating the Conventicle Act

when delivering a sermon to an unlawful gathering of

Quakers in London. Inazu, Liberty’s Refuge 24-25.

“[E]very Quaker in America knew of the ordeal suffered by the founder of Pennsylvania and its bearing

on the freedom of religion, of speech, and the right of

assembly.” Ibid. (citation omitted). Equally wellknown was Penn’s refusal, for religious reasons, to remove his hat upon entering the courtroom. See ibid.

Penn’s famous refusal would prove instrumental to

the First Amendment’s ratification. See McConnell,

Origins at 1471-1472 & n.320.

Pennsylvania’s 1682 Frame of Government guaranteed that everyone who acknowledged God “‘shall,

in no ways, be molested or prejudiced for their religious persuasion, or practice, in matters of faith and

worship.’” David S. Bogen, The Origins of Freedom of

Speech and Press, 42 Md. L. Rev. 429, 454 (1983) (internal citation omitted). “Pennsylvania’s promise of

toleration contributed to the highest level of immigration of any of the colonies, and with immigration, prosperity.” McConnell, Origins at 1430 (noting Pennsylvania’s religious toleration informed James Madison’s

criticism of religious establishment in Virginia). At the

time Pennsylvania was perhaps the English-speaking

polity with the most freedom of religious speech.

These different legislative approaches were mirrored in the 18th century by opposed understandings

of the freedom of speech within the world of legal practice and the academy. As recent scholarship has

shown, there were “two clusters of views” surrounding

freedom of speech. Bird, Revolution in Freedoms 4. The

“broad understanding”—associated with James Madison—sought to establish that there was a “right which

every free subject has to speak and write of public affairs[.]” Ibid. The “narrow understanding”—associated with William Blackstone and Lord Chief Justice

Mansfield—would restrict the right of free speech to

freedom from prior restraints. Ibid. 4

This mixed experience of establishment and disestablishment, orthodoxy and dissent, restriction and

expansion, was to be of great consequence at the

Founding. By the time of the Founding, almost every

religious group present in the colonies had suffered at

some point in their history from government restrictions on religious speech. Yet the Founders were

also in a position to look back over the six centuries

prior and discern a clear arc towards more protection

for religious speech, both institutional and individual.

One need not accept Professor Bird’s further argument

that the Blackstone/Mansfield view was a minority view to

conclude that the historical evidence shows the existence of

two contending views of free speech at the time.

B. At the Founding, the Framers chose, and

the American people adopted, broad protections for religious speech.

At the Founding, the Framers elected to follow a

broad view of freedom of speech, rooted in the experience of over 600 years of conflict over (and growing

protection of) religious speech, as well as in expanding

theories of natural rights rooted in religious tradition.

1. First in importance was the fact that many

Americans fought the Revolution for the purpose of establishing freedom of religion and freedom of religious

speech for their communities. Observers at the time

recognized that nonconforming Protestants were the

driving force of the Revolution. Edmund Burke stated

that the “free spirit” in America is due to “one main

cause,” that “[t]he people are Protestants; and of that

kind which is the most adverse to all implicit submission of mind and opinion. * * * it is the dissidence of

dissent, and the Protestantism of the Protestant religion.” Edmund Burke, Speech on Conciliation with the

Colonies (Mar. 22, 1775). Others said the Revolution

was a “Presbyterian Rebellion,” or led by “Congregationalists, Presbyterians, and Smugglers.” Mark A.

Noll, A History of Christianity in the United States and

Canada 122 (1992).

Prominent colonial Protestant clerics would often

advocate for American independence through religious

parallels. For example, prominent minister and President of Yale College Ezra Stiles drew an analogy between “the equality and independence of every congregational apostolic church” and the freedom that “the

thirteen provinces on this continent” should possess.

Ezra Stiles, A Discourse on the Christian Union (1760),

quoted in Robert A. Ferguson, Reading the Early Republic 60 (2004). It was this reality that prompted

John Adams to reject Rousseau’s later claim that

Americans had invented “the science of the rights of

man,” stating instead that they “found it in their religion.” John Adams, Letter to Thomas Boylston Adams

(Mar. 18, 1794), quoted in James H. Hutson, “The

Emergence of the Modern Concept of a Right in America,” in The Nature of Rights at the American Founding

and Beyond 48 (Barry Alan Shain, ed. 2007).

2. Second, this practical interest in obtaining freedom of religious speech was paralleled by then-current

theories of liberty that invoked the natural rights/natural law tradition to justify full protection for natural

rights, including freedom of religious speech. In the

view of the Founders, freedom of speech and freedom

of religion were “natural rights” as opposed to “civil

rights” or “acquired rights” like the right to trial by

jury. See Philip Hamburger, Natural Rights, Natural

Law, and American Constitutions, 102 Yale L.J. 907,

920-921 (1993).

It was the task of lawgivers to translate natural

rights into positive civil law: “Americans said that

they should adopt constitutions and, more generally,

civil laws that reflected natural law reasoning.” Hamburger, 102 Yale L.J. at 937. The “civil law was expected to reflect natural law” by “adopt[ing] and enforc[ing] rules that approximated the constraints implied by natural law.” Id. at 909. Thus for many Framers, one of their main tasks would have been to ensure

that the Constitution and the Bill of Rights protected

the natural rights of freedom of speech and freedom of

religion.

And the content of those rights would have been

readily apparent: “Indeed, reason confirmed what custom established: that the rights and immunities enjoyed by Englishmen under the common law and the

British constitution were the very embodiment of natural rights.” Michael W. McConnell, Tradition and

Constitutionalism Before the Constitution, 1998 U. Ill.

L. Rev. 173, 193 (1998). Contemporary natural rights

theory thus dovetailed with the practical interest

many Americans had in protecting freedom of religious speech.

3. The Founders acted to protect the freedom of religious speech in three phases. First, state constitutional provisions adopted immediately after the Declaration of Independence assiduously protected religious

exercise, including religious speech. By 1789, every

state except Connecticut (which still operated under

its royal charter) had adopted protections for freedom

of religion. See McConnell, Origins at 1455. By contrast, freedom of speech as a more general principle

(as opposed to legislative speech and debate) was mentioned in only Pennsylvania’s constitution.

In each of the religious freedom provisions, religious “[o]pinion, expression of opinion, and practice

were all expressly protected.” McConnell, Origins at

1459. Indeed, the current scholarly debate over the

scope of these provisions centers on whether these provisions covered practice; but pure religious speech—

that is, opinion and expression of opinion—is taken as

a given. These provisions thus demonstrate that the

Founders chose robust protection for religious speech

at the very beginning of the Republic.

Second, the original version of the federal Constitution protected against religious tests like those required by the Test Acts in England and the religious

tests imposed by certain states. See U.S. Const.,

Art. VI (1789). The No Religious Test Clause protected

a religious speech right to remain silent, or, put another way, banned a certain form of compelled religious speech. During the ratification debates, this

Clause was conceived of as an individual right: “By the

injurious consequences to individuals, I mean, that

some, who, in every other respect, are qualified to fill

some important post in government, will be excluded

by their not being able to stand the religious test;

which I take to be a privation of part of their civil

rights.” Jonathan Elliot, 2 The Debates in the Several

State Conventions on the Adoption of the Federal Constitution (2d ed. 1941) at 118-119 (Jan. 31, 1788)

(statement of Rev. Daniel Shute during Massachusetts

ratification debate). With the No Religious Test

Clause, then, the Founders had adopted a provision

that rejected compelled speech in violation of religious

conscience. 5

Third, religious speech was protected in the Bill of

Rights, as adopted in 1791, by the Free Exercise

Clause and Free Speech Clause of the First Amendment. The two provisions overlap. Professor

McConnell has concluded that the protections of the

Free Exercise Clause covered “opinions,” “profession of

religious opinions,” and “conduct.” McConnell, Origins

at 1512. Of those three, only conduct is the subject of

The Constitution’s separate oath-or-affirmation provisions were meant as a religious accommodation for Quakers

and others, but were couched in non-religious terms.

scholarly dispute over whether it was protected. See

Ibid. That view conforms to near-contemporaneous

documents such as the Virginia Statute for Religious

Freedom, which specifically protected religious

speech: “all men shall be free to profess, and by argument to maintain, their opinions in matters of religion.” Virginia Statute for Religious Freedom (1786).

But what of the Free Speech Clause? Neither the

debates in Congress nor the ratification debates

within the several states shed great light on the exact

scope of the rights protected, much less to what extent

religious speech was covered. In Congress, “[n]o one

defined freedom of speech with any precision.” Bogen,

42 Md. L. Rev. at 458. However, the general principle

was distilled by Madison: “the censorial power is in the

people over the Government, and not in the Government over the people.” Akhil Reed Amar, How America’s Constitution Affirmed Freedom of Speech Even

Before the First Amendment, 38 Cap. U. L. Rev. 503,

506 (2010) (quoting 4 Annals of Cong. 934 (1794)). And

since the “censorial power” wielded in England and the

colonies had focused on the topics of politics and religion, both were covered by the Free Speech Clause designed by the Founders. See id. at 506 (“Historical arguments * * * offer additional support for a robust

constitutional right of free political expression.”).

C. Since the Founding, religious speech has

consistently been treated as core speech

under the Free Speech Clause that enjoys

the highest level of constitutional

protection.

1. For many decades after the First Amendment

was ratified in 1791, this Court had little occasion to

interpret the Free Speech Clause, in religious speech

cases or otherwise. It was therefore in the state courts

where the first decisions concerning freedom of religious speech were made—and were made in favor of a

preferred position for religious speech.

In the first case, People v. Philips, the Court of General Sessions, in an opinion authored by Mayor DeWitt

Clinton, held that New York could not subpoena a

Catholic priest for testimony about information that

he had received during confession. 1 W.L.J. 109, 112–

113 (Gen. Sess., N.Y. 1813). The court recognized that

compelling religiously-forbidden speech would effectively “declare that there shall be no penance; and this

important branch of the Roman Catholic religion

would thus be annihilated.” Id. at 112. Mayor Clinton

recognized that the decision rested on constitutional

grounds: “[a]lthough we differ from the witness and

his brethren[] in our religious creed,” “[t]hey are protected by the laws and constitution of this country[.]”

Id. at 113.

Philips was influential, and “knowledge of the decision appears to have spread widely.” Fulton v. City

of Philadelphia, 141 S. Ct. 1868, 1908 (2021) (Alito, J.,

concurring). In Commonwealth v. Cronin, 2 Va. Cir.

488 (1855), the court, following Philips, held that it

could not compel a Catholic priest to testify in a criminal trial as to information he received during confession. Ibid. Thus, in the decades following the Founding, American courts recognized that the Constitution

protected religious speech and that government could

not compel religiously-forbidden speech. 6 In the same

vein, early scholarly commentary noted religious

speech’s preferred position and compared it to core political speech. For example, St. George Tucker’s 1803

constitutional law commentaries summed up “‘the

right of personal opinion’” in America as containing

two categories: “‘liberty of conscience in all matters

relative to religion’ and ‘liberty of speech and of discussion in all speculative matters, whether religious, philosophical, or political.’” McConnell, Origins at 14931494 (internal citation omitted).

2. Freedom of religious speech also informed disputes about slavery and, later, the Fourteenth Amendment. In the years before the Civil War, Southern governments were worried that abolitionist religious

speech would convince white Southerners to oppose

slavery and lead to slave insurrections. As the issue of

slavery roiled the nation, abolitionists in the North, including many clergy members, sent hundreds of antislavery religious tracts to Southern clergy and postmasters with instructions to distribute them in Southern communities. Kurt Lash, The Second Adoption of

the Free Exercise Clause: Religious Exemptions Under

the Fourteenth Amendment, 88 Nw. U. L. Rev. 1106,

1132 (1994). Pro-slavery Southerners responded with

a wave of repression. For example, in Charleston,

South Carolina, pro-slavery vigilantes broke into the

post office and stole anti-slavery tracts, and thousands

Professor McConnell notes that Pennsylvania and

South Carolina had decisions rejecting religious exemptions, but that there is also evidence that trial judges in

both states had broad discretion to issue de facto exemptions. See McConnell, Origins at 1511.

of people then gathered to publicly destroy them and

burn effigies of leading Northern abolitionists. See Susan Wyly-Jones, The 1835 Anti-Abolition Meetings in

the South: A New Look at the Controversy over the Abolition Postal Campaign, 47 Civil War History 289

(2001).

After Reverend Nat Turner led a rebellion in 1831,

Southern states began aggressively regulating religious speech. For example, Southern states not only

made it a crime, punishable by death, to “write, print,

publish or distribute” abolitionist literature; many

states specifically targeted religious speech that advocated for emancipation. Lash, 88 Nw. U. L. Rev. at

1134. “Those who attacked slavery through sermons,

speeches, or written documents risked death by law or

at the hands of proslavery mobs.” Ibid. (citing Louisiana Constitutional and Anti-Fanatical Society, Digest

of the Laws Relative to Slaves and People of Free Colour in the State of Louisiana 68 (1835)).

Following the Civil War, the framers of the Fourteenth Amendment sought to overturn Southern practices that suppressed religious speech. Rep. John

Bingham, the author of Section One of the Fourteenth

Amendment, “believed slavery violated basic principles of the Constitution, including the right ‘to utter,

according to conscience.’” Lash, 88 Nw. U. L. Rev. at

1146 (quoting Cong. Globe, 35th Cong., 2d Sess. 985

(1859)). Bingham also explained that “by the force of

the fourteenth amendment, no State hereafter can

* * * ever repeat the example of Georgia and send men

to the penitentiary * * * for teaching the Indian to

read the lessons of the New Testament.” Cong. Globe,

42d Cong., 1st Sess. 84 (1871). Sen. Lyman Trumbull,

a co-sponsor of the Civil Rights Act, similarly reminded other members of Congress that States had

made it “a highly penal offense for any person * * * to

teach slaves.” Cong. Globe, 39th Cong., 1st Sess. 474

(1865). And Rep. James Ashley remarked that under

slavery, Southern governments had “silenced every

free pulpit within [their] control.” Cong. Globe, 38th

Cong., 2d Sess. 138 (1864).

The Congress that adopted the Fourteenth Amendment therefore did so against a historical background

where religious speech was both suppressed and yet

instrumental in leading to slavery’s demise. With this

in mind, the framers of the Fourteenth Amendment

established that religious speech was entitled to special solicitude and would be protected thenceforth

from any similar attempts at suppression.

3. The preferred position of religious speech has

continued in the decisions of this Court. In the almostcentury since the Free Speech Clause was incorporated against the states in Gitlow v. New York, 45

S. Ct. 625 (1925), this Court has repeatedly confirmed

that religious speech enjoys the highest level of constitutional protection.

Many of the early cases involved the religious

speech practices of the Jehovah’s Witnesses, who

“played a remarkable role in developing First Amendment law[.]” Jeffrey S. Sutton, Barnette, Frankfurter,

and Judicial Review, 96 Marquette L. Rev. 133, 140141 (2012). Their “objection to the flag salute, their

zeal in spreading their faith, their willingness to proceed in the most hostile environments, and their omnipresent distribution of pamphlets laid the groundwork for much of what we now take for granted as first

premises of First Amendment law.” Ibid.

In a series of decisions, this Court “emphasize[d]

the value of the speech involved” while striking down

ordinances restricting the speech rights of Jehovah’s

Witnesses. Watchtower Bible & Tract Soc’y of N.Y.,

Inc. v. Village of Stratton, 536 U.S. 150, 161 (2002).

For example, in Cantwell v. Connecticut, this Court

held that an ordinance requiring Jehovah’s Witnesses

to obtain a license before engaging in door-to-door solicitations and evangelism was invalid. 310 U.S. 296

(1940). This Court concluded that the case involved

“only an effort to persuade a willing listener to buy a

book or to contribute money in the interest of what [the

plaintiff] * * * conceived to be true religion.” Id. at

310. The Court drew a parallel between Cantwell’s religious speech and political speech, explaining that

“[i]n the realm of religious faith, and in that of political

belief, sharp differences arise,” but that “these liberties are, in the long view, essential to enlightened

opinion and right conduct on the part of the citizens of

a democracy.” Ibid. Later the Court recognized that

Cantwell’s rule sounded in both the Free Exercise

Clause and the Free Speech Clause. See Village of

Schaumburg v. Citizens for a Better Env’t, 444 U.S.

620, 629 (1980).

In Murdock v. Pennsylvania, the Court again invalidated a municipal ordinance that required speakers

to pay for a permit to distribute or sell literature doorto-door. 319 U.S. 105 (1943). And again, the Court

highlighted the special value of religious speech, explaining that the “hand distribution of religious tracts

is an age-old form of missionary evangelism—as old as

the history of printing presses” and “has been a potent

force in various religious movements” throughout history. Id. at 108. The Court continued and noted that

Murdock’s religious speech was “more than preaching”

and “more than distribution of religious literature”—

“[i]t [was] a combination of both,” and its “purpose

[was] as evangelical as the revival meeting.” Id. at 109.

“This form of religious activity occupies the same high

estate under the First Amendment as do worship in

churches and preaching from the pulpits,” and “has

the same claim as the others to the guarantees of freedom of speech.” Ibid. Moreover, “[f]reedom of press,

freedom of speech, freedom of religion are in a preferred position” within the constitutional hierarchy.

Id. at 115.

Similarly, in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), this Court held

that Jehovah’s Witness children could not be compelled to recite the Pledge of Allegiance, overruling the

Court’s decision just three years earlier in Minersville

Sch. Dist. v. Gobitis, 310 U.S. 586 (1940). As this Court

framed it, the question was whether government officials could require a “conscientious child to stultify

himself in public” by “making a prescribed sign and

profession”—“a form of utterance”—that went against

his religious beliefs. Barnette, 319 U.S. at 630, 632,

635 n.15.

In holding that school officials could not compel

students to speak a message contrary to their religious

beliefs, the Court noted that “[o]bjection to this form of

communication when coerced is an old one, well known

to the framers of the Bill of Rights.” Barnette, 319 U.S.

at 633. Indeed, the Court linked the Jehovah’s Witnesses’ religious speech to that of the Quakers (and the

famous case of Penn’s hat) who “suffered punishment

rather than uncover their heads in deference to any

civil authority.” Id. n.13. And the Court concluded its

opinion by noting that religious speech “touch[es] the

heart of the existing order,” and that “[i]f there is any

fixed star in our constitutional constellation, it is that

no official, high or petty, can prescribe what shall be

orthodox in politics, nationalism, [or] religion.” Id. at

642. 7

4. Later cases have consistently recognized that

religious speech holds high station under the First

Amendment. In fact, the Court has recognized that “in

Anglo-American history, at least, government suppression of speech has so commonly been directed precisely at religious speech that a free-speech clause

without religion would be Hamlet without the prince.”

Capitol Square Rev. & Advisory Bd. v. Pinette, 515

U.S. 753, 760 (1995) (emphasis in original). Put another way, religious speech, given its status as “speech

on public issues,” “occupies the ‘highest rung of the hierarchy of First Amendment values,’ and is entitled to

special protection.” Connick v. Myers, 461 U.S. 138,

145 (1983) (citations omitted) (collecting cases). See

also Rosenberger v. Rector and Visitors of Univ. of Va.,

515 U.S. 819, 839 (1995) (rejecting “refusal to extend

free speech rights to religious speakers”); Good News

Club v. Milford Cent. Sch., 533 U.S. 98, 107 n.2 (2001)

Other cases where the Court grappled with religious

speech claims by Jehovah’s Witnesses included Lovell v.

City of Griffin, 303 U.S. 444 (1938); Schneider v. New Jersey, 308 U.S. 147 (1939); Jones v. City of Opelika, 316 U.S.

584 (1942), vacated, 319 U.S. 103 (1943); Martin v. City of

Struthers, 319 U.S. 141 (1943); Douglas v. City of Jeannette,

319 U.S. 157 (1943); and Saia v. New York, 334 U.S. 558

(1948). The Jehovah’s Witnesses have good claim to be the

“recusants” or “sectaries” of the 20th century.

(rejecting “exclusion of the Club on the basis of its religious perspective”); Lamb’s Chapel v. Center

Moriches Union Free Sch. Dist., 508 U.S. 384, 394

(1993) (rejecting exclusion of film series because it

“dealt with the subject from a religious standpoint”);

Widmar v. Vincent, 454 U.S. 263, 277 (1981) (rejecting

university’s “content-based exclusion of religious

speech”); cf. Hosanna-Tabor Evangelical Lutheran

Church & Sch. v. EEOC, 565 U.S. 171, 199 (2012)

(Alito, J., concurring) (“Throughout our Nation’s history, religious bodies have been the preeminent example of private associations that have acted as critical

buffers between the individual and the power of the

State.” (cleaned up)).

That high level of free speech protection extends to

the right not to foster ideological concepts that run

contrary to one’s conscience: “A system which secures

the right to proselytize religious, political, and ideological causes must also guarantee the concomitant right

to decline to foster such concepts.” Wooley v. Maynard,

430 U.S. 705, 714 (1977) (Jehovah’s Witness could refuse to convey the government’s slogan). And where

government “burdens core * * * speech without

proper justification,” whether by compelling speech or

forbidding it, the First Amendment is violated. FEC v.

Cruz, 142 S. Ct. 1638, 1656 (2022).

Even in cases where the Court has not found political or religious speech to be at issue, it has been careful to distinguish those forms of speech. For instance,

in Bethel Sch. Dist. No. 403 v. Fraser, “fundamental

values of ‘habits and manners of civility’ essential to a

democratic society must, of course, include tolerance

of divergent political and religious views, even when

the views expressed may be unpopular.” 478 U.S. 675,

681 (1986) (emphasis added). In that case, the Court

concluded that the challenged speech was “vulgar and

lewd” rather than political or religious and thus did

not qualify as core speech. Id. at 685. Similarly, in

Morse v. Frederick, the Court distinguished the banner in question from the messages in cases like Tinker

by pointing out that it did not “convey[] any sort of political or religious message.” 551 U.S. 393, 403 (2007).

The same has been true of commercial speech, as the

Court has “always been careful to distinguish commercial speech from speech at the First Amendment’s

core.” Florida Bar v. Went For It, Inc., 515 U.S. 618,

623 (1995).

And just last year, the Court again emphasized the

equal station of political and religious speech and their

preferred position within the realm of protected

speech: “When it comes to political or religious speech

that occurs outside school or a school program or activity, the school will have a heavy burden to justify

intervention.” Mahanoy Area Sch. Dist. v. B.L., 141

S. Ct. 2038, 2046 (2021) (emphasis added).

As the foregoing history shows, religious speech

has been consistently privileged across eight centuries

of Anglo-American jurisprudence. Indeed, the freedom

of speech for both institutions and individuals grew

out of conflicts over religious speech. The Free Speech

Clause is the hard-won fruit of centuries of religious

dissent.

And whatever might be said about peripheral

speech that “falls only within the outer ambit of the

First Amendment’s protection,” City of Erie v. Pap’s

A.M., 529 U.S. 277, 289 (2000) (plurality), the same

cannot be said of religious speech. Rather, our country’s history, traditions, and practices have placed religious speech at the apex of First Amendment values,

where it occupies a position of “high estate,” Murdock,

319 U.S. at 109, “and is entitled to special protection,”

Connick, 461 U.S. at 145.

Here, both Smith’s religious speech and her religious silence deserve the highest level of protection

available under the Free Speech Clause.

II. The text, history, and tradition of the Free

Speech Clause show that religious speech

receives the highest level of protection

available.

In her brief, Smith has explained in detail why this

Court’s compelled speech, content discrimination, and

viewpoint discrimination decisions exclude any justification Colorado might offer for burdening Smith’s

speech. Pet.Br.35-50. Importantly, Smith explains

that because Colorado is “restricting speech contrary

to conscience” “there is no need to engage in any kind

of scrutiny.” Pet.Br.35. But should the Court nevertheless reach Colorado’s strict scrutiny affirmative defense, there are ample grounds to reject it. Ibid.

However, if the Court decides the case on the narrower ground that core religious speech has been burdened, the justification analysis will be even simpler,

since the Court would not necessarily have to apply

strict scrutiny.

In recent years, a number of jurists and scholars

have called for a reconsideration of application of tiersof-scrutiny balancing tests in constitutional cases generally, and free speech cases in particular. See, e.g.,

Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292,

2327 (2016) (Thomas, J., dissenting) (“The Constitution does not prescribe tiers of scrutiny.”); Ramirez v.

Collier, 142 S. Ct. 1264, 1287 n.1 (2022) (Kavanaugh,

J., concurring) (strict scrutiny test “can be difficult to

apply”); United States v. Jimenez-Shilon, --- F.4th ----,

2022 WL 1613203 at *10-11 (11th Cir. 2022) (Newsom,

J., concurring) (calling for reconsideration of use of

balancing tests in First Amendment cases); Brett M.

Kavanaugh, Keynote Address: Two Challenges for the

Judge as Umpire: Statutory Ambiguity and Constitutional Exceptions, 92 Notre Dame L. Rev. 1907, 1914

(2017) (“I want to underscore that the compelling interest/important interest/strict scrutiny/intermediate

scrutiny formulations are rather indeterminate.”);

Joel Alicea & John D. Ohlendorf, Against the Tiers of

Constitutional Scrutiny, National Affairs (Fall 2019)

(“[T]he tiers of scrutiny lack the essential characteristic of any jurisprudential test whose aim is the faithful

application of the law: serving as a meaningful guide

to legal analysis. Instead, each step of the scrutiny process is marked by indeterminacy and manipulability.”). See also Jud Campbell, The Emergence of Neutrality, 131 Yale L.J. 861, 930 (2022) (“The balancing

approach that prevailed in the 1950s carried the usual

benefits of flexible standards. * * * But as is so often

true, the benefits of balancing also turned out to be liabilities.”).

The Court recently stated the general rule: government may not “burden[] core * * * speech without

proper justification.” Cruz, 142 S. Ct. at 1656. And history and tradition provide a helpful guide to determining what constitutes “proper justification.” See Houston Cmty. Coll. Sys. v. Wilson, 142 S. Ct. 1253, 1259

(2022) (“When faced with a dispute about the Constitution’s meaning or application, long settled and established practice is a consideration of great weight.

* * * Often, a regular course of practice can illuminate

or liquidate our founding document’s terms and

phrases.” (cleaned up)); Ramirez, 142 S. Ct. at 1288

(Kavanaugh, J., concurring) (“history and state practice can at least help structure the inquiry and focus

the Court’s assessment” of a government’s justifications).

In the particular case of core religious speech, history and tradition provide more of a guide than they

do with respect to other Free Speech Clause claims.

That is because the Free Speech Clause and the Free

Exercise Clause overlap when it comes to “expression,”

McConnell, Origins at 1459, and there is a rich history

regarding freedom of religion.

That history discloses that religious speech rights

were subject to only a very limited set of governmental

interests that might justify interfering with religious

speech. Early state constitutional protections contained provisos to religious speech protections; the

protections were subject to maintaining “peace” or

“safety” in the relevant state and preventing “licentiousness or immorality.” McConnell, Origins at 14611462. New York’s Constitution, for example, protected

“the free exercise and enjoyment of religious profession and worship” so long as those actions did not “excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State.” N.Y.

Const. of 1777, Art. XXXVIII.

This is not the same as a “compelling governmental

interest” under the tiers-of-scrutiny approach. The

historically defined public interests are a far smaller

set and more determinate than the list of governmental interests lower courts have deemed compelling, a

list which continues to grow. Thus, with respect to

what sorts of interests a government can invoke as justifications, “the First Amendment has struck the balance” and courts do not need to innovate. Hosanna-Tabor, 565 U.S. at 196.

In the end, to decide this appeal the Court need not

decide the exact form of justification required. The outcome will be the same whether the Court looks to

peace, security, and licentiousness, or to strict scrutiny, or decides Colorado has no justification at all

available to it. Here, Colorado’s claimed interests in

marketplace access and preventing dignitary harm do

not come close to qualifying, either with respect to the

compelling interest test, or the historic test. Colorado

therefore cannot justify burdening Smith’s religious

speech.

III. Employing core speech analysis to resolve

this appeal will have additional salutary

effects on free speech jurisprudence.

Core speech analysis rooted in the history and tradition of the Free Speech Clause is not only the simplest way to resolve this case; it will also have at least

two therapeutic effects on the body of free speech jurisprudence.

First, many or most of the wedding vendor cases

sound in both the Free Exercise Clause and the Free

Speech Clause. Recognizing the special role of core

speech analysis in these cases will give lower courts

more flexibility in deciding these sometimes factually

complex cases. Lower courts can choose among options

for deciding these cases, enabling them to avoid deciding novel constitutional issues in particular cases. It

would also allow lower courts deciding wedding vendor

cases to rely on precedents within the other major subset of core speech—political speech. Tying speech on

matters of public concern to speech on matters of religious concern will thus serve the stability and usefulness of both areas of jurisprudence.

Second, reconnecting one subset of free speech jurisprudence—core religious speech—to the text, history, and tradition of the Free Speech Clause would

have a salutary effect on free speech jurisprudence as

a whole. The Court has in the past few decades returned to history in deciding important constitutional

questions, and specifically questions arising under the

Bill of Rights. See, e.g., Eric Rassbach, Town of Greece

v. Galloway: The Establishment Clause and the Rediscovery of History, Cato Sup. Ct. Review (2013-2014)

(describing historical turn in Establishment Clause jurisprudence). The Court’s embrace of historical practices and understandings as a touchstone of constitutional interpretation extends across the Sixth Amendment’s Confrontation Clause, the Fourth Amendment,

the Second Amendment, and parts of the First Amendment, as well as other parts of the Constitution.

But thus far free speech jurisprudence has not

made the same historical turn. In fact, free speech

caselaw has been detached from the text, history, and

tradition of the Free Speech Clause since at least 1971,

when Cohen v. California was decided. 403 U.S. 15

(1971). The key passage of analysis in that case started

with a concession of difficulty: “Admittedly, it is not so

obvious that the First and Fourteenth Amendments

must be taken to disable the States.” Id. at 23. But Cohen went on to rely on “examination and reflection” to

conclude that “no readily ascertainable general principle exists” to limit the use of vulgarity, and that “governmental officials cannot make principled distinctions in this area.” Id. at 24, 25. What Cohen—like

many other Free Speech decisions of the 1970s—did

not do is examine the history and tradition of the First

Amendment, relying instead on the Court’s own free

speech decisions from the preceding four decades and

a variety of unsupported musings about the nature of

human communication. 8

Perhaps treating the history and tradition of the

First Amendment as unknowable or ineffable and thus

irrelevant was a plausible approach in 1971. Cf.

Lemon v. Kurtzman, 403 U.S. 602, 612 (1971) (“we can

only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law”;

“[t]he language of the Religion Clauses of the First

Amendment is at best opaque.”). But today, scholars

decry the Court’s choice not to look at the “wealth of

historical materials that could have guided the Court

through * * * difficult shoals.” Michael W. McConnell,

Time, Institutions, and Interpretation, 95 B.U. L. Rev.

1745, 1757 (2015) (free speech cases “[c]onspicuous for

their lack of originalist analysis”). Intentionally ignoring history and tradition is a particularly poor foundation for judicial analysis in light of the massive growth

In this, Free Speech jurisprudence is similar to Establishment Clause jurisprudence, where “the Supreme Court

has based its interpretation of the First Amendment on abstractions.” McConnell, Establishment and Disestablishment, 44 Wm. & Mary L. Rev. at 2205.

in scholarly historical research, the digitization of historical documents, and the increases in accessibility

that have come with the advent of the internet. Courts

and litigants simply have more access to more

knowledge of historical fact than ever before. Given

this increased access to history and tradition, the

Court should grasp the opportunity this case presents

and graft one small part of the law of free speech back

into the centuries of historical tradition from which it

grew.

Colorado’s stubborn insistence on forcing religious

wedding vendors to conform to its moral vision is a

shameful chapter in that State’s history, and one that

is a dark echo of past outrages on religious speech in

the Anglo-American tradition. Yet one principle that

tradition produced—after much suffering—was that

no government should be in the unseemly business of

suppressing or demanding the speech of religious institutions or individuals. Here, Colorado’s intransigent attempts at forcing uniformity of opinion on religious dissenters must be rejected.

CONCLUSION

The decision below should be reversed.

Respectfully submitted.

ERIC C. RASSBACH

Counsel of Record

WILLIAM J. HAUN

DANIEL L. CHEN

JAMES J. KIM

THE BECKET FUND FOR

RELIGIOUS LIBERTY

1919 Pennsylvania Ave. NW

Suite 400

Washington, D.C. 20006

(202) 955-0095

erassbach@becketlaw.org

Counsel for Amicus Curiae

JUNE 2022

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.