Amicus Curiae Brief — We The Patriots USA, Inc., et al., Petitioners v. Connecticut Office of Early Childhood Development, et al.

Supreme Court briefMar 6, 2024

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No. 23-643

In the

Supreme Court of the United States

WE THE PATRIOTS USA, INC., ET AL.,

Petitioners,

CONNECTICUT OFFICE OF EARLY CHILDHOOD

DEVELOPMENT, ET AL.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF OF AMICUS CURIAE

WAGNER FAITH & FREEDOM CENTER

IN SUPPORT OF PETITIONERS

WILLIAM WAGNER

Counsel of Record

GREAT LAKES JUSTICE CENTER

5600 W. Mount Hope Hwy

Suite 2

Lansing, MI 48917

(517) 643-1765

Prof.WWJD@gmail.com

March 6, 2024

Counsel for Amicus Curiae

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

QUESTIONS PRESENTED

1. Whether, as four circuits have held, a mandate that

does not exempt religious conduct is not neutral and

generally applicable if it exempts secular conduct that

similarly frustrates the specific interest the mandate

advances, or whether, as two circuits have held, such

a mandate is neutral and generally applicable if the

secular exemption advances a different (or more

general) state interest that the religious conduct does

not?

2. Whether a law that provides for legacy religious

exemptions valid for the entirety of each legacy child’s

remaining K-12 education, but affords no religious

exemptions to non-legacy children, is neutral and

generally applicable?

3. Whether Employment Division v. Smith’s hybrid

rights exception should be revitalized, or whether

Smith should be overruled?

This Amicus Curiae brief primarily addresses the

third question, focusing on whether this Court should

revisit Employment Division v. Smith.

TABLE OF CONTENTS

QUESTIONS PRESENTED........................................ i

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

STATEMENT OF IDENTITY AND INTEREST

OF AMICUS CURIAE .................................................1

SUMMARY OF THE ARGUMENT ............................2

ARGUMENT ................................................................4

I. THIS COURT SHOULD GRANT THE

PETITION TO REVISIT SMITH AND

RESTORE FULL FUNDAMENTAL RIGHT

STATUS TO THE UNALIENABLE LIBERTY

PROTECTED BY THE FIRST AMENDMENT ....4

A. Employment Division v. Smith Erroneously

Diminished the Free Exercise of Religious

Conscience as a Fundamental Right................6

B. This Court’s Post-Smith Cases Point

Toward Restoring the Free Exercise of

Religious Conscience as an Unalienable

Fundamental Right ........................................12

1. Significance

Post-Smith

First

Amendment Cases .....................................12

2. Significance of Obergefell ..........................16

CONCLUSION ..........................................................23

iii

TABLE OF AUTHORITIES

Cases

Burwell v. Hobby Lobby Stores, Inc.,

134 S. Ct. 2751 (2014) ............................................ 17

Cantwell v. Connecticut,

310 U.S. 296 (1940) .................................................. 5

Church of Lukumi Babalu Aye, Inc. v. Hialeah,

508 U.S. 520 (1993) ...................................... 6, 13, 20

City of Boerne v. Flores,

521 U.S. 507 (1997) ................................................ 10

Employment Division v. Smith,

494 U.S. 872 (1990) .............. 2-4, 6-12, 18, 19, 22, 23

Everson v. Board of Education,

330 U.S. 1 (1947) ...................................................... 5

Fulton v. City of Philadelphia,

141 S. Ct. 1868 (2020) .......................... 5, 6, 7, 12, 21

Garcetti v. Ceballos,

547 U.S. 410 (2006) .................................................. 6

Gitlow v. New York,

268 U.S. 652 (1925) .................................................. 5

Gonzales v. O Centro Espirita Beneficente Uniao do

Vegetal, 546 U.S. 418 (2006) .................................. 10

Good News Club v. Milford Central School,

533 U.S. 98 (2001) .................................................. 15

Holder v. Humanitarian Law Project,

561 U.S. 1 (2010) .................................................... 15

Hosanna-Tabor Evangelical Lutheran

Church & Sch. v. EEOC, 565 U.S. 171 (2012) ...... 18

Janus v. Amer Fed of State, County, and municipal

Employees, Council 31, et al.,

138 S. Ct. 2448 (2018) ...................................... 13, 14

Kennedy v. Bremerton School District,

142 S. Ct. 2407 (2022) .................... 2, 5, 6, 13, 18, 22

Masterpiece Cakeshop, LTD. v. Colorado Civil

Rights Commission,

138 S. Ct. 1719 (2018) ........ 15, 16, 17, 18, 19, 20, 21

McDaniel v. Paty,

435 U.S. 618 (1978) ................................................ 21

Obergefell v. Hodges,

576 U.S. 644 (2015) ................................ 3, 16, 18, 22

Reed v. Town of Gilbert,

576 U.S. 155 (2015) ............................................ 6, 15

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

515 U.S. 819 (1995) ................................................ 15

Sherbert v. Verner,

374 U.S. 398 (1963) ........................................ 5, 6, 10

Shurtleff v. Boston,

142 S. Ct. 1583 (2022) ............................................ 15

Texas v. Johnson,

491 U.S. 397 (1989) ................................................ 15

Trinity Lutheran Church of Columbia, Inc. v.

Comer, 137 S. Ct. 2012 (2017) ......................... 17, 21

Turner Broad Sys., Inc. v FCC,

512 U.S. 622, 114 S. Ct. 2445,

129 L.Ed. 2d 497 (1994) ......................................... 13

West Virginia Bd. of Ed. v. Barnette,

319 U.S. 624 (1943) ................................................ 14

Wisconsin v. Yoder,

406 U.S. 205 (1972) ............................................ 5, 10

Constitutional Provisions

U.S. Const. amend I .......... 2-6, 8, 11-15, 18, 20, 22, 23

U..S. Const. amend XIV ........................................ 5, 22

Statutes

42 U.S.C. § 2000bb, et seq. .................................... 9, 10

Other Authorities

Comment of the Religious Liberty Law Section of

the State Bar of Michigan on Proposed

Amendment of Rule 1.109 of the Michigan Court

Rules ....................................................................... 11

Mark A. Knoll, A History of Christianity in the

United States and Canada (1992) ......................... 14

F. Makower, The Constitutional History and

Constitution of the Church of England (photo.

reprt. 1972) (1895) ................................................. 14

STATEMENT OF IDENTITY

AND INTEREST OF AMICUS CURIAE

Pursuant to Supreme Court Rule 37, Amicus

Curiae, the Wagner Faith & Freedom Center (WFFC)

submits this brief. 1

Housed on the campus of Spring Arbor University,

the Wagner Faith & Freedom Center serves as a

national academic voice for faith and freedom.

Working daily to secure the future for freedom of

thought, conscience, and religion, the WFFC equips

the next generation with strategies promoting good

governance and the Rule of Law. Contending for the

faith, the WFFC strategically works to ensure the next

generation may exercise religious conscience free of

persecution and oppression.

In public forums

throughout the world the WFFC speaks on behalf of

the persecuted and most vulnerable. The WFFC

champions the cause of the defenseless and oppressed,

standing for faith and freedom all around the world.

Amicus Curiae has special knowledge helpful to

this Court in this case, having a significant interest in

the protection of the constitutional rights and

1 Pursuant to Rule 37(a), Amicus Curiae gave 10-days’ notice of

its intent to file this brief to all counsel. Amicus Curiae further

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

or in part, and no counsel or party made a monetary contribution

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

person or entity, other than Amicus Curiae, its members or its

counsel, made a monetary contribution to the preparation or

submission of this brief.

religious freedom of citizens. Amicus Curiae is

committed to preserving good governance under the

Rule of Law, including protection of the legal rights

and freedoms of citizens, and is a leading voice in this

area.

Amicus Curiae files this brief to encourage this

Honorable Court to guide the American judiciary, and

other branches of government, to return to a sound

constitutional basis for protecting First Amendment

liberty in our nation.

SUMMARY OF THE ARGUMENT

The First Amendment to the United States

Constitution prohibits governmental infringement on

the free exercise of religion and religious expression.

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

Amendment did not say “make no law prohibiting the

free exercise of religion, unless you can find an

unelected state regulatory regime or federal judge to

say the law is neutral and generally applicable.”

Indeed, instead, the Framers of the First Amendment

doubly protected freedom of religious expression.

Kennedy v. Bremerton School District, 142 S. Ct. 2407,

2421, 2426 (2022)

In Employment Division v. Smith, this Court

drifted away from its constitutional jurisprudence

that recognized freedom of religion as a First

Amendment fundamental liberty interest. 494 U.S.

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

Smith substantially infringed on the free exercise of

religious liberty, Smith required no justification by the

government for its conduct. To reach this radical

result, Smith deemed neutral laws of general

applicability excepted from the constitutional

protection contra-expressed in the plain language of

the Free Exercise Clause. Smith did so despite a

dearth of any supporting jurisprudence deeply rooted

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

the concept of ordered liberty.

Unless a State affirmatively acts to restore

fundamental right status to the free exercise of

religious conscience, Smith, as a practical matter,

denudes any meaningful constitutional protection for

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

power. Divesting Petitioners of any fundamental

liberty protection, the appellate court characterized

the vaccination of religious persons (VORP) law here

as neutral and generally applicable, even though it

substantially burdened religious conscience and

expression.

The VORP law here, therefore,

necessarily requires Christian people to: 1) surrender

their right to freely express and exercise their

religious conscience protected by the First

Amendment; and 2) relinquish their religious identity

recognized by this Court in Obergefell v. Hodges, 576

U.S. 644 (2015). This Court should, therefore, grant

the Petition, revisit Smith, and correct the error.

The VORP law in the case at bar substantially

interferes with Petitioner’s religious identity and

expressive exercise of his religious conscience. Here,

the State of Connecticut expressly requires Petitioners

to renounce their religious expression, conscience,

identity, and sincerely held religious beliefs, or be

deprived of educational opportunities available to

other citizens. When the government substantially

interferes with a citizen’s free exercise of religious

expression and conscience, that government action

must face the “most rigorous” scrutiny.

ARGUMENT

I. THIS COURT SHOULD GRANT THE

PETITION TO REVISIT SMITH AND

RESTORE FULL FUNDAMENTAL RIGHT

STATUS TO THE UNALIENABLE LIBERTY

PROTECTED BY THE FIRST AMENDMENT.

Ratified in 1791, the First Amendment to the

United States Constitution provides that “Congress

shall make no law respecting the establishment of

religion or prohibiting the free exercise thereof; or

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

amend I.

Although this language includes no

exemption for laws the government labels as “neutral”

or “generally applicable,” Employment Division v.

Smith wrongly held that it does. 494 U.S. 872 (1990).

This case provides the opportunity for the Court to

overrule this wrongly decided precedent that

government

authorities

increasingly

use

unconscionably (and unconstitutionally) burden a

person’s religious expression and free exercise of their

religious conscience. 2

2 The necessity of resolving the circuit splits outlined in the

Petition additionally provide significant reasons to grant

certiorari.

This Court holds liberty protected by the First

Amendment applicable to the States via the

Fourteenth Amendment. Cantwell v. Connecticut, 310

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

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

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

Reflecting an accurate historical understanding of

the plain meaning of the Free Exercise Clause, this

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

struck down government actions that substantially

interfered with a person’s sincerely held religious

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

unemployment benefits to a person who lost her job

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

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

of State compulsory school attendance laws

incompatible with sincerely held religious beliefs).

Under these decisions, a person’s unalienable right to

the free exercise of religious conscience appropriately

required government to provide a compelling interest

to justify its interfering with such a fundamental

liberty interest. This Court, in applying strict scrutiny

to the government actions, further required the

government to show it used the least restrictive means

available to accomplish its interest. Recently, in

Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1881

(2020), this Court confirmed that government action

infringing on First Amendment religious liberty

warrants the strictest of scrutiny. Moreover, in

Kennedy v. Bremerton School District, this Court

confirmed that religious expression is doubly

protected under the First Amendment requiring the

application of strict scrutiny. 142 S. Ct. 2407, 2421,

2426 (2022) citing, Fulton, 141 S. Ct. at 1876-1877;

Reed v. Town of Gilbert, 576 U.S. 155, 171 (2015);

Garcetti v. Ceballos, 547 U.S. 410, 418 (2006); Church

of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520,

546 (1993); Sherbert, 374 U.S. at 403 (1963).

A. Employment

Division

Smith

Erroneously

Diminished

the

Free

Exercise of Religious Conscience as a

Fundamental Right.

In Employment Division v. Smith, this Court

departed from its constitutional jurisprudence

recognizing freedom of religion as a fundamental

liberty interest protected by the First Amendment.

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

action in Smith substantially infringed on the free

exercise of religious liberty, Smith required no

justification by the government for its conduct. To

reach this radical result, Smith deemed neutral laws

of general applicability excepted from the

constitutional protection contra-expressed in the clear

and plain language of the Free Exercise Clause. 3

Smith did so despite a dearth of any supporting First

Amendment jurisprudence deeply rooted in our

nation’s history and traditions, or implicit in the

concept of ordered liberty.

3 Cf. Lukumi, 508 U.S. 520 (1993) (applying strict scrutiny to a

law substantially infringing on religious liberty when, in the

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

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

primarily, if not exclusively, burdens religious conscience and

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

general applicability.

Justice Alito, concurring in Fulton, joined by

Justices Thomas and Gorsuch, correctly recognized

that:

[Smith] abruptly pushed aside nearly 30 years

of precedent and held that the First

Amendment’s Free Exercise Clause tolerates

any rule that categorically prohibits or

commands specified conduct so long as it does

not target religious practice. Even if a rule

serves no important purpose and has a

devastating effect on religious freedom, the

Constitution, according to Smith, provides no

protection. This severe holding is ripe for

reexamination.

Fulton, 141 S. Ct. at 1882 (Alito, J., Thomas, J., and

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

concurring in Fulton, joined by Justice Kavanaugh,

documenting that “the textual and structural

arguments against Smith are more compelling.” Id. at

1883.

Indeed, Smith’s rule diverges drastically from the

protections afforded to religious practice during the

founding period. When “important clashes between

generally applicable laws and the religious practices

of particular groups” occurred, “colonial and state

legislatures were willing to grant exemptions—even

when the generally applicable laws served critical

state interests.” Id. at 1905.

Under the original understanding of the Free

Exercise Clause, the Constitution protected a person

against government actions violating the person’s

religious conscience. Thus, even when a generally

applicable law, such as taking an oath or military

conscription, interfered with religious conscience, the

First Amendment provided protection. Id. at 19051906.

The accommodation for religious conscience during

the revolutionary war “is especially revealing because

during that time the Continental Army was

periodically in desperate need of soldiers, the very

survival of the new Nation often seemed in danger,

and the Members of Congress faced bleak personal

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

exemptions were granted.” Id. at 1906. In the face of

a highly compelling governmental interest (the

survival of the nation) and the presence of a generally

applicable neutral law (military conscription), the

willingness of the founders to grant exemptions based

on religious conscience demonstrates how extensively

the Free Exercise Clause was meant to protect

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

Free Exercise Clause and evidence about the original

understanding of the free exercise right, the case for

Smith fails to overcome the more natural reading of

the text. Indeed, the case against Smith is very

convincing.” Id. at 1912.

Undeniably, the only real limit on religious liberty

during the founding period, according to the

constitutions and laws of the States, was whether

conduct would endanger ‘“the public peace” or

“safety.”‘ Id. at 1901. These words had precise

meanings during the founding period. Peace meant,

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

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

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

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

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

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

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

from hurt. . . .” Id. at 1903-04 (citations omitted).

In comparison to the very specific meaning of the

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

exercise of religion during the founding period, the

Smith test inappropriately restricts the free exercise

of religion under “neutral and generally applicable”

laws.

Unsurprisingly, therefore, in response to Smith,

Congress enacted the Religious Freedom Restoration

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

expressly provides that:

Government shall not substantially burden a

person’s exercise of religion, even if the burden

results from a rule of general applicability,

[unless] … it demonstrates that application of

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

of a compelling governmental interest; and

(2) is the least restrictive means of furthering

that compelling governmental interest.

42 U.S.C. § 2000bb-1. In promulgating the RFRA,

Congress correctly acknowledged: “the framers of the

Constitution, recognizing free exercise of religion as

an unalienable right, secured its protection in the

First Amendment to the Constitution.” 42 U.S.C.

§ 2000bb(a)(1). Congress stated the purpose of the

legislation was

(1) to restore the compelling interest test as set

forth in Sherbert v. Verner and Wisconsin v.

Yoder, and to guarantee its application in all

cases where free exercise of religion is

substantially burdened; and (2) to provide a

claim or defense to persons whose religious

exercise is substantially burdened by

government.

42 U.S.C. § 2000bb(b)(1)-(2). Although this Court

upheld the RFRA as applied to federal government

actions, Gonzales v. O Centro Espirita Beneficente

Uniao do Vegetal, 546 U.S. 418 (2006), it also held

Congress acted outside the scope of its constitutional

authority as applied to the states, City of Boerne v.

Flores, 521 U.S. 507 (1997). Thus, notwithstanding

the plain language of the Free Exercise Clause, and

despite Congress’ attempt to statutorily reinstate an

accurate understanding of the correct constitutional

standard, Smith wrongly continues to allow State

authorities to substantially interfere with the free

exercise of religious conscience and expression.

Consequently, unless a State affirmatively acts to

restore fundamental right status to the free exercise

of religion, Smith extinguishes critical constitutional

limits on the exercise of the State’s power. Given our

nation’s history, and the history of those who have fled

to our shores, the framers rightly made religious

liberty our First Liberty. For only as long as this

Court preserves the freedom of conscience protected

under the First Amendment, will our other freedoms

remain secure. This Court, therefore, ought to grant

the Petition, revisit, and reverse Smith.

The vaccination of religious persons (VORP) law in

the case at bar, as well as other so-called neutral antidiscrimination laws, exacerbate the threat to the free

exercise of religious conscience. These government

actions necessarily require Christian people to: 1)

relinquish their religious identity; and 2) surrender

their right to freely exercise and express their

religious conscience. State enforcement of “neutral”

political preferences often weaponize State action to

eliminate the Free Exercise and Speech Clauses as

important constitutional constraints on the exercise of

State authority. Indeed, since Smith, religious people

in our nation face a far more horrific predicament than

the drafters and ratifiers of the Constitution and Bill

of Rights could ever have imagined. This is especially

so in any regulated profession where the government

recharacterizes religious conscience and expression as

the regulation of professional conduct. For example, a

State Supreme Court recently proclaimed a rule

compelling all State judges to address attorneys and

parties using SOGI pronouns provided by the

attorneys and parties. See, Comment of the Religious

Liberty Law Section of the State Bar of Michigan on

Proposed Amendment of Rule 1.109 of the Michigan

Court Rules (The rule provides no accommodation for

religious conscience).

B. This Court’s Post-Smith Cases Point

Toward Restoring the Free Exercise of

Religious Conscience as an Unalienable

Fundamental Right.

The writers of the First Amendment did not say

“make no law prohibiting the free exercise of religion,

unless you can find an unelected state regulatory

regime or federal judge to say the law is neutral and

generally applicable.”

1. Significance of Post-Smith First Amendment

Cases

In Fulton, this Court confirmed that when First

Amendment religious liberty is at stake:

A government policy can survive strict

scrutiny only if it advances “interests of the

highest order” and is narrowly tailored to

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

546 (internal quotation marks omitted). Put

another way, so long as the government can

achieve its interests in a manner that does not

burden religion, it must do so.

Fulton, 141 S. Ct. at 1881.

While the government action in Fulton was not

generally applicable, nothing in the Court’s holding

suggests the fundamental nature of the constitutional

protection ought to diminish where it is.

Subsequently, in Kennedy, this Court confirmed

that “…a [n]atural reading” of the First Amendment

leads to the conclusion that “the Clauses have

complementary purposes” where constitutional

protections for religious speech and the free exercise

of religion “work in tandem,” doubly protecting a

person’s religious expression and exercise of religious

conscience. Kennedy, 142 S. Ct. 2407, 2421, 2426

(2022). In such situations, Kennedy reaffirmed the

application of strict scrutiny. Id.

The First

Amendment “is essential to our democratic form of

government, and it furthers the search for truth.

Whenever ... a State prevents individuals from saying

what they think on important matters or compels

them to voice ideas with which they disagree, it

undermines these ends.” Janus v. Amer Fed of State,

County, and municipal Employees, Council 31, et al.,

138 S. Ct. 2448, 2464 (2018). Such actions “pose the

inherent risk that the Government seeks not to

advance a legitimate regulatory goal, but to suppress

unpopular ideas or information or [to] manipulate the

public debate through coercion rather than

persuasion.” Turner Broad Sys., Inc. v FCC, 512 U.S.

622, 641, 114 S. Ct. 2445, 129 L.Ed. 2d 497 (1994).

Here the vaccination of religious persons (VORP)

law coerces religious citizens to betray their

convictions. “Forcing free and independent individuals

to endorse ideas they find objectionable is always

demeaning, and for this reason, ... a law commanding

‘involuntary affirmation’ of objected-to beliefs would

require ‘even more immediate and urgent grounds’

than a law demanding silence.” Janus, 138 S. Ct. at

2464 (2018) quoting West Virginia Bd. of Ed. v.

Barnette, 319 U.S. 624, 633 (1943).

The First Amendment “includes both the right to

speak freely and the right to refrain from speaking at

all. The right to eschew association for expressive

purposes is likewise protected.” Janus, 138 S. Ct. at

2463 (cleaned up). Indeed, “[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, religion, or other matters of

opinion or force citizens to confess by word or act their

faith therein.” West Virginia Bd. of Ed. v. Barnette,

319 U.S. 624, 642 (1943).

Bearing witness to the intolerant laws of

seventeenth century England that persecuted

individuals because of their religious views, the First

Amendment balances the need for freedom of religion

and religious expression with the need of a wellordered central government. See, e.g., Mark A. Knoll,

A History of Christianity in the United States and

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

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

embodies an ideal that is uniquely American—that

true liberty exists only where men and women are free

to hold and express conflicting political and religious

viewpoints. Under this aegis, the government must

not interfere with its citizens living out and expressing

their freedoms but embrace the security and liberty

only a pluralistic society affords. That is why the First

Amendment protects expression of a religious person’s

viewpoints and ideas, subjecting a State to the

strictest of scrutiny if it substantially interferes. See,

e.g., Masterpiece Cakeshop, LTD. v. Colorado Civil

Rights Commission, 138 S. Ct. 1719, 1745-46 (2018)

(Thomas, J., concurring) (noting, the necessity of

applying “the most exacting scrutiny” in a case where

Colorado’s law penalized expression of cake designer)

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

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

1, 28 (2010); see also, Reed v. Town of Gilbert, Ariz.,

576 U.S. 155, 164 (2015).

In Shurtleff v. Boston, this Court unanimously

reaffirmed that government “may not exclude speech

based on ‘religious viewpoint’; doing so ‘constitutes

impermissible viewpoint discrimination,’” 142 S. Ct.

1583, 1593 (2022) (quoting Good News Club v. Milford

Central School, 533 U.S. 98, 112 (2001)). See also,

Rosenberger v. Rector and Visitors of Univ. of Va., 515

U.S. 819, 828-830 (1995).

The vaccination of religious persons (VORP) law

requires forced acceptance of political policy

preferences and is especially wrong because the

government action here substantially interferes with

constitutionally protected liberty. Here, the proposed

rule, masquerading as a neutral law, effectively

censures the viewpoint of many religious people, a

religious viewpoint consistent with their conscience

and inherent in their personal religious identity.

Moreover, the VORP law seeks to compel these

professionals to engage in expression conflicting with

it. The disturbing diminishment of First Amendment

religious conscience and expression, as a practical

matter, denudes any meaningful constitutional

protection for liberty as a limit on the exercise of State

power.

2. Significance of Obergefell

In Obergefell v. Hodges, this Court found in the

Constitution a right of personal identity for all

citizens. 576 U.S. 644, 135 S. Ct. 2584 (2015). The

Justices in the majority held that: “The Constitution

promises liberty to all within its reach, a liberty that

includes certain specific rights that allow persons,

within a lawful realm, to define and express their

identity.” Id. at 2593; see also Masterpiece Cakeshop,

Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. at

1727. Obergefell affirmed, therefore, not just freedom

to define one’s belief system, but freedom to exercise

one’s conscience associated with it.

Because Obergefell defined a fundamental liberty

right as including “most of the rights enumerated in

the Bill of Rights,” and “liberties [that] extend to

certain personal choices central to individual dignity

and autonomy, including intimate choices that define

personal identity and beliefs,” this new right of

personal identity must broadly comprehend factual

contexts well beyond the same-sex marriage facts of

that case. 135 S. Ct. at 2589. If this Court meant what

it said in Obergefell, the right of personal identity

applies not just to those who find their identity in their

sexuality and sexual preferences—but also to citizens

who define and express their identity via their

religious beliefs.

Christian people, for example, find their identity in

Jesus Christ and the ageless, sacred tenets of His word

in the Holy Bible. For followers of Jesus, adhering to

His commands is the most personal choice central to

their individual dignity and autonomy. A Christian

person, whose identity inheres in his or her religious

faith orientation, is entitled to at least as much

constitutional protection as those who find their

identity in, for example, their sexual preference

orientation. Concluding the State can ban exercises

and expressions of religious conscience while

providing for secular exceptions, cancels petitioner’s

humanity, dignity, and autonomy, demanding that he

abandon his identity when expressing principles that

are so central to his life and faith.

There can be no doubt that this Court’s recently

identified substantive due process right of personal

identity protects against government authorities who

use public policy to persecute, oppress, and

discriminate against religious people.

Indeed,

government must not use its power, irrespective of

whether neutrally applied, in ways hostile to religion

or religious viewpoints under this new “autonomy”

paradigm. Masterpiece Cakeshop, 138 S. Ct. at 1731.

Certainly, government ought to protect, not impede,

the free exercise of religious conscience. See, e.g.,

Trinity Lutheran Church of Columbia, Inc. v. Comer,

137 S. Ct. 2012, 2022 (2017) (holding the government

violates the Free Exercise Clause if it conditions a

generally available public benefit on an entity giving

up its religious character); Burwell v. Hobby Lobby

Stores, Inc.,134 S. Ct. 2751, 2775 (2014) (holding the

RFRA applies to federal regulation of activities of

closely held for profit companies); Hosanna-Tabor

Evangelical Lutheran Church & Sch. v. EEOC, 565

U.S. 171, 196 (2012) (barring an employment

discrimination suit brought against a religious

school). State actions must uphold constitutionallyprotected freedoms, not grant special protections for

some, while coercing others to engage in conduct or

expression contrary to their religious identity and

conscience.

Contrary to Obergefell’s holding, Smith eviscerates

the constitutional right to one’s religious identity and

free exercise, enabling States to subjectively deem

infringement on religious conscience as neutral and

generally applicable (as it always does when it

imposes special political preferences). This Court

should revisit Smith’s diminishment of religious

liberty, especially in light of Obergefell’s recognition of

constitutional protection afforded to personal identity,

liberty, and equal protection. And especially in light

of Kennedy’s recognition that the Constitution

requires that the First Amendment Clauses be read

together – doubly protecting religious conscience and

expression.

This Court has already ruled, for example, that

“religious and philosophical objections” to exercises of

government power are constitutionally protected.

Masterpiece Cakeshop, 138 S. Ct. at 1727, (citing

Obergefell 135 S. Ct. at 2607 and holding that “[t]he

First Amendment ensures that religious organizations

and persons are given proper protection as they seek

to teach the principles that are so fulfilling and so

central to their lives and faiths, and to their own deep

aspirations to continue the family structure they have

long revered.”).

For religious people in the Smith environment,

though, that right continues to manifest as a mirage.

In practice, State and local government authorities

elevate some politically preferred rights above all

others, especially the free exercise of religious

conscience. Theophobia reigns and the government

has become the installer and enforcer of this new

tyranny.

Special preferences embodied in the

vaccination of religious persons (VORP) law in the

case at bar exalt a particular belief system of what is

objectionable over another and, by its very nature,

signals official disapproval of a religious person’s

religious identity, expression, and religious beliefs.

“Just as no official, high or petty, can prescribe what

shall be orthodox in politics, nationalism, religion, or

other matters of opinion, it is not, as the Court has

repeatedly held, the role of the State or its officials to

prescribe what shall be offensive.”

Masterpiece

Cakeshop 138 S. Ct. at 1731 (internal quotations and

citations omitted).

As this Court has so clearly stated:

[T]he government, if it is to respect the

Constitution’s guarantee of free exercise,

cannot impose regulations that are hostile to

the religious beliefs of affected citizens and

cannot act in a manner that passes judgment

upon or presupposes the illegitimacy of

religious beliefs and practices. . . . The

Constitution commits government itself to

religious tolerance, and upon even slight

suspicion that proposals for state intervention

stem from animosity to religion or distrust of its

practices, all officials must pause to remember

their own high duty to the Constitution and to

the rights it secures.

Masterpiece Cakeshop, 138 S. Ct. at 1731 (citing

Lukumi, 508 U.S. at 534, 547) (internal quotes

omitted).

While the Court here characterized its analysis as

addressing a lack of neutrality in the government’s

action, government imposition of SOGI preferences is

unavoidably always hostile and can never be “neutral”

toward the religious identity and beliefs of orthodox

Christian people. Indeed, special SOGI preferences,

like the vaccination of religious persons (VORP) law

here, necessarily require Christian people to

relinquish their religious identity and the freedom to

express and exercise their religious conscience. For

the First Amendment to have meaning, it must

include the right to hold and manifest beliefs without

fear of government punishment or coercion.

The government enforced VORP law in the case at

bar substantially interferes with Petitioners' religious

identity and exercise of their religious conscience. A

State ought not require Petitioner to disavow his

sincerely held religious beliefs to receive an education.

Here the State expressly requires Petitioners to

renounce their religious character, identity, and

sincerely held religious conscience, or be deprived of

educational opportunities available to other citizens.

When a government action imposes a penalty on the

free exercise of religion, that government action must

face the “most rigorous” scrutiny. Fulton, 141 S. Ct.

at 1881; Trinity Lutheran, 137 S. Ct. at 2016; Lukumi,

508 U.S. at 546. “Under that stringent standard, only

a state interest ‘of the highest order’ can justify the

government’s

discriminatory

policy.”

Trinity

Lutheran, 137 S. Ct. at 2024 (citing McDaniel v. Paty,

435 U.S. 618, 628 (1978) (internal quotation marks

omitted); Fulton, 141 S. Ct. at 1881.

And as

Masterpiece Cakeshop recognized, “these disputes

must be resolved with tolerance, without undue

disrespect to sincere religious beliefs,” 138 S. Ct. at

1732.

Some wrongly suggest, in contexts outside the facts

of this case, that the expression of one’s religious

identity, and exercise of religious conscience is

invidious discrimination. It is not. Christian people

know God created all human life in His image. Thus,

for Christian people, every person holds inherent

value and deserves respect. No sincere follower of

Jesus would, therefore, ever willfully discriminate

against another person based on who they are.

Christian people are called, though, to adhere to a

standard of behavior and beliefs and can never, then,

concede their constitutionally protected religious

identity and free exercise of religious conscience.

Amicus Curiae condemns invidious discrimination

and holds no animus toward anyone. We seek

respectful consideration of all viewpoints and reject

the notion that honest disagreement based on

religious conscience equates with bigotry.

Kennedy explains that the First Amendment

Clauses “have complementary purposes” where

constitutional protections for religious speech and the

free exercise of religion “work in tandem,” doubly

protecting a person’s religious expression and exercise

of religious conscience. 142 S. Ct. 2407, 2421, 2426.

Obergefell teaches that beyond the First Amendment’s

double protection for religious expression, a

substantive due process right to personal identity also

compels this Court to always provide religious people

with the highest standard of constitutional

protection. 4 Government action not only must avoid

interfering with a citizen’s religious expression and

free exercise of religious conscience, protected by the

First Amendment, it must also refrain from violating

their personal religious identity rights. In this light,

therefore, Smith’s low-level judicial review for neutral

and generally applicable laws can no longer stand. If

it remains, government authorities will continue

using such laws to oppress religious people under the

guise of protecting them. Moreover, only if this Court

restores full protection for First Amendment freedom

of conscience, will other constitutional freedoms

remain secured. This Court should, therefore, revisit

Smith and restore the right of all persons to exercise

fundamental freedoms under the First Amendment,

as applied to the States through the Fourteenth

Amendment.

4 While Amicus Curiae question the cogency of the substantive

due process jurisprudence that birthed the court-created liberty

articulated in Obergefell, it expects government to follow the nowestablished constitutional Rule of Law, including when it

protects the personal identity and viewpoints of religious people.

CONCLUSION

For the reasons provided in this brief, Amicus

Curiae urges this Court to grant certiorari, revisit

Smith, and restore the right of all persons to exercise

fundamental freedoms under the First Amendment.

Respectfully submitted,