Amicus Curiae Brief — Kaley Chiles, Petitioner v. Patty Salazar, in Her Official Capacity as Executive Director of the Colorado Department of Regulatory Agencies, et al.
Supreme Court briefJun 6, 2025
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No. 24-539
IN THE
Supreme Court of the United States
KALEY CHILES,
Petitioner,
v.
PATTY SALAZAR, IN HER OFFICIAL CAPACITY
AS EXECUTIVE DIRECTOR OF THE COLORADO
DEPARTMENT OF REGULATORY AGENCIES, et al.,
Respondents.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF A PPEALS FOR THE TENTH CIRCUIT
BRIEF OF AMICI CURIAE
LEGISLATORS FROM
30 STATE LEGISLATURES
IN SUPPORT OF PETITIONER
WILLIAM WAGNER
Counsel of Record
GREAT LAKES JUSTICE CENTER
5600 West Mount Hope Highway
Lansing, MI 48917
(517) 643-1765
prof.wwjd@gmail.com
Counsel for Amici Curiae
June 6, 2025
131081
A
(800) 274-3321 • (800) 359-6859
i
QUESTION PRESENTED
Whether a law that censors certain conversations
between counselors and their clients based on the
viewpoints expressed regulates conduct or violates the
Free Speech Clause?
This amicus brief primarily addresses how the First
Amendment Clauses protecting religious speech and
the free exercise of religion “work in tandem”—doubly
protecting a person’s religious expression so that only
those state interests “of the highest order” can justify
state interference with a person’s free expression
grounded in their religious identity and conscience.
ii
TABLE OF CONTENTS
Page
QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iv
STATEMENT OF IDENTITY AND
INTEREST OF AMICI CURIAE. . . . . . . . . . . . . .1
BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . .3
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
I.
THE LOW ER COU RTS A PPLIED
THE WRONG LEVEL OF SCRUTINY
W HEN REV IEW ING THE STATE
ACTION HERE . . . . . . . . . . . . . . . . . . . . . . . . . . .5
A. The First Amendment Doubly Protects
Religious Expression, Warranting
the Strictest Scrutiny of Government
Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
1.
Petitioner’s Injury . . . . . . . . . . . . . . . . . .8
2. Strict Scrutiny and the Free
Speech Clause. . . . . . . . . . . . . . . . . . . . . .9
iii
Table of Contents
Page
3. Strict Scrutiny and the Free
Exercise Clause . . . . . . . . . . . . . . . . . . .13
4. The Complimentary Purposes
of the First Amendment Clauses
Work in Tandem to Doubly Protect
Religious Expression . . . . . . . . . . . . . .18
6LJQLÀFDQFHRI2EHUJHIHOO . . . . . . . . . . .22
6. Strict Scrutiny for Expression
Grounded in Religious Conscience
and Identity . . . . . . . . . . . . . . . . . . . . . .24
B. Colorado’s Law is Not Neutral or
G enera l ly Appl icable, but Even
if it is, this Court Should Revisit
Employment Division v. Smith Which
Erroneously Diminished the Free
Exercise of Religious Conscience as a
Fundamental Right. . . . . . . . . . . . . . . . . . . .25
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32
A PPENDIX — LIST OF AMICI CURIAE:
LEGISL AT OR S FROM 3 0 STAT E
LEGISLATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . .1a
iv
TABLE OF CITED AUTHORITIES
Page
Cases
303 Creative LLC v. Elenis,
600 U.S. 570 (2023). . . . . . . . . . . . . . . 7, 9, 10, 12, 19, 20
Boy Scouts of America v. Dale,
530 U.S. 640 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
Braunfeld v. Brown,
366 U.S. 599 (1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
Burwell v. Hobby Lobby Stores, Inc.,
573 U.S. 682 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
Cantwell v. Connecticut,
310 U.S. 296 (1940) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
Capitol Square Review and Advisory Bd. v.
Pinette,
515 U.S. 753 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
Church of Lukumi Babalu Aye, Inc. v. Hialeah,
508 U.S. 520 (1993). . . . . . . . . . . . . . . . . . . . . . 16, 17, 26
City of Boerne v. Flores,
521 U.S. 507 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . .30
Employment Division v. Smith,
494 U.S. 872 (1990) . . . . . . . . . 25, 26, 27, 28, 29, 30, 31
v
Cited Authorities
Page
Fulton v. City of Philadelphia,
593 U.S. 522 (2020). . . . . . . . . . . . . . . . . . . 17, 27, 28, 29
Gitlow v. New York,
268 U.S. 652 (1925). . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
Gonzales v. O Centro Espirita
%HQHÀFHQWH8QLDRGR9HJHWDO
546 U.S. 418 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . .30
Good News Club v. Milford Central School,
533 U.S. 98 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
Holder v. Humanitarian Law Project,
561 U.S. 1 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . .10, 21
+RVDQQD7DERU(YDQJHOLFDO/XWKHUDQ
Church & Sch. v. EEOC,
565 U.S. 171 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
Hurley v. Irish-American Gay, Lesbian
and Bisexual Group of Boston, Inc.,
515 U.S. 557 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
Janus v. Amer. Fed. of State, County, and
Municipal Employees, Council 31, et al.,
585 U.S. 878 (2018) . . . . . . . . . . . . . . . . . . . . . . . . .13, 19
Kennedy v. Bremerton School District,
597 U.S. 507 (2022). . . . . . . 4, 5, 6, 8, 18, 20, 24, 25, 31
vi
Cited Authorities
Page
Masterpiece Cakeshop, Ltd. v.
&RORUDGR&LYLO5LJKWV&RPP·Q
584 U.S. 617 (2018) . . . . . . . . 9, 15, 16, 17, 20, 21, 22, 23
McDaniel v. Paty,
435 U.S. 618 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . 14, 17
NAACP v. Button,
371 U.S. 415 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
National Institute of Family and Life Advocates v.
Becerra,
585 U.S. 755 (2018) . . . . . . . . . . . . . . . . . 7, 10, 12, 13, 19
2EHUJHIHOOY+RGJHV
576 U.S. 644 (2015) . . . . . . . . . . . . . . . . . . 22, 23, 24, 31
3ROLFH'HS·WRI&KLFDJRY0RVOH\
408 U.S. 92 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
5$9Y6W3DXO
505 U.S. 377 (1992) . . . . . . . . . . . . . . . . . . . . . . .9, 12, 13
Reed v. Town of Gilbert,
576 U.S. 155 (2015) . . . . . . . . . . . . . . . . . . . . . . .9, 13, 21
5RVHQEHUJHUY
5HFWRU 9LVLWRUVRIWKH8QLYRI9LUJLQLD
515 U.S. 819 (1995) . . . . . . . . . . . . . . . . . . . . . . . . .12, 21
vii
Cited Authorities
Page
6KHUEHUWY9HUQHU
374 U.S. 398 (1963) . . . . . . . . . . . . . . . . . . . . . . . . .14, 30
Shurtleff v. Boston,
596 U.S. 243 (2022). . . . . . . . . . . . . . . . . . . . . . . . . . . .21
Texas v. Johnson,
491 U.S. 397 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
Tinker v. Des Moines Independent
Community School Dist.,
393 U.S. 503 (1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
Trinity Lutheran Church of Columbia, Inc. v.
Comer,
582 U.S. 449 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . 17, 24
Turner Broad Sys., Inc. v. FCC,
512 U.S. 622 (1994) . . . . . . . . . . . . . . . . . . . 5, 6, 9, 10, 19
:HVW9LUJLQLD%GRI(GY%DUQHWWH
319 U.S. 624 (1943) . . . . . . . . . . . . . . . . . . . . . . . . .19, 20
Wisconsin v. Yoder,
406 U.S. 205 (1972). . . . . . . . . . . . . . . . . . . . . . . . .14, 30
Constitutional Provisions
U.S. Const. amend. I . . . 1, 2, 4-8, 12, 14-22, 24-28, 30, 31
U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . . . . . .6, 25
viii
Cited Authorities
Page
Statutes, Rules and Regulations
42 U.S.C. § 2000bb, et seq. . . . . . . . . . . . . . . . . . . . . . . . .29
42 U.S.C. § 2000bb(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . .30
42 U.S.C. § 2000bb(b)(1)-(2) . . . . . . . . . . . . . . . . . . . . . . .30
42 U.S.C. § 2000bb-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
Colo. Rev. Stat. § 12-245-202(3.5)(a) . . . . . . . . . . . .3, 5, 12
Colo. Rev. Stat. § 12-245-202(3.5)(b)(I)-(II). . . . . . . .3, 12
Colo. Rev. Stat. § 12-245-225 . . . . . . . . . . . . . . . . . . . . . . .3
Supreme Court Rule 37 . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Other Authorities
A Memorial and Remonstrance Against Religious
Assessments, in Selected Writings of James
Madison 21 (R. Ketcham ed. 2006) . . . . . . . . . . . . . .20
&RPPHQW RI WKH 5HOLJLRXV /LEHUW\ /DZ 6HFWLRQ
RI WKH 6WDWH %DU RI 0LFKLJDQ RQ 3URSRVHG
$PHQGPHQWRI5XOH RIWKH0LFKLJDQ&RXUW
Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31
ix
Cited Authorities
Page
Mark A. Knoll, A History of Christianity in the
United States and Canada (1992) . . . . . . . . . . . .20, 21
F. Makower, The Constitutional History and
&RQVWLWXWLRQRIWKH&KXUFKRI(QJODQG (photo.
reprt. 1972) (1895) . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
1
STATEMENT OF IDENTITY AND
INTEREST OF AMICI CURIAE
Pursuant to Supreme Court Rule 37, Amici Curiae
state legislators from 30 States submit this brief.1
Amici legislators are politically accountable to
the people of their respective states. Sworn to uphold
the Constitution, they hold a special commitment to
constitutional governance under the Rule of Law.
This understanding includes a deep respect for the
constitutional limits on the exercise of government
power, including the First Amendment. Amici Curiae
are profoundly concerned by the willingness of State
authorities who, by force of law and punishment: 1) censure
religious viewpoints and ideas inconsistent with preferred
political preferences; and 2) coerce viewpoints and ideas
consistent with preferred political preferences.
Amici Curiae have special knowledge helpful to
this Court in this case, KDYLQJ D VLJQLÀFDQW LQWHUHVW LQ
the protection of the constitutional rights and religious
freedom of citizens. Amici Curiae are committed to
preserving good governance under the Rule of Law,
including protection of the legal rights and freedoms of
Christians working in their chosen professions.
1. Amici Curiae 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 amici
curiae, its members, or its counsel, made a monetary contribution
to the preparation or submission of this brief. See Appendix for
names of legislators.
2
Amici CuriaeÀOHWKLVEULHIWKHUHIRUHWRHQFRXUDJH
this Honorable Court to guide legislative, executive, and
judicial authorities toward a sound constitutional basis for
understanding how the First Amendment properly limits
the exercise of government power.
BACKGROUND
Kaley Chiles is a devoted Christian woman, licensed
by the State of Colorado as a counselor. Pet. App.212a14a. Her conversations and guidance aid, support, and
comfort those with whom she speaks. Pet. App.215a.
As part of her identity as a Christian, and as a matter
of religious conscience, Kaley believes that individuals
thrive when living in alignment with their biological sex
as designed by their Creator. Pet. App. 212a-14a. Kaley
merely desires to communicate “in a manner consistent
with [her] religious beliefs; [she] does not seek to impose
those beliefs on anyone else,” including her “voluntary
clients who determine the goals that they have for
themselves.” Pet App. 213a. Kaley’s clients believe their
faith and relationship with God provide the lens through
which to see their identity and desires. Pet. App.214a.
When struggling with matters involving human sexuality
and their own body, therefore, they request Kaley’s
conversation and guidance in counselling. Pet. App.207a,
214a-215a. Desiring “to reduce or eliminate unwanted
sexual attractions, change sexual behaviors, or grow in the
experience of harmony with one’s physical body,” Kaley’s
FOLHQWV VSHFLÀFDOO\ VHHN FRXQVHOLQJ IURP KHU &KULVWLDQ
viewpoint. Pet. App 207a.
In response to such expression, Colorado enacted a
Sexual Orientation Gender Identity (SOGI) censorship
law, (misbranded as “conversation therapy”). On the one
3
hand, the law’s content and viewpoint-based ban prohibits
counselors from engaging in any consensual conversation
that attempts “to eliminate or reduce sexual or romantic
attraction or feelings toward individuals of the same sex.”
Colo. Rev Stat. § 12-245-202(3.5)(a). On the other hand,
the State expressly empowers counsellors to encourage
a client’s same sex attraction or gender transition
(e.g., counseling providing “[a]cceptance, support, and
understanding for the facilitation of an individual’s . . .
identity exploration and development, including . . .
“[a]ssistance to a person undergoing gender transition.”
Id. § 12-245-202(3.5)(b)(I)-(II)).
Under the Colorado law, if the words Kaley speaks
include expressions of biological truth grounded in her
Christian identity and religious conscience, she faces
GUDFRQLDQ ÀQHV IRU HDFK H[SUHVVLRQ DQG WKH ORVV RI KHU
license. Id. § 12-245-225. The tragic consequence of such
laws is that people previously identifying as transgender,
but now aligning with their faith and biological sex, have no
constructive access to compassionate counseling support.
SUMMARY OF THE ARGUMENT
Colorado’s SOGI conversation censorship law
substantially interferes with Petitioner’s religious identity
and expressive exercise of her religious conscience. Here,
the State of Colorado deliberately requires Petitioner to
renounce her religious expression, conscience, identity,
and sincerely held religious beliefs, or face professional
discipline under the full force of law and punishment. When
the government substantially interferes with a citizen’s
religious expression and conscience, that government
action must face the “most rigorous” scrutiny.
4
The First Amendment to the United States Constitution
prohibits governmental infringement on the freedom of
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 or abridging the freedom
of speech, unless the state calls the speech conduct or
says 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, 597 U.S. 507, 523, 532 (2022)
In KennedyWKLV&RXUWFRQÀUPHGWKDW´ . . . 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. Id. In such situations, KennedyUHDIÀUPHGWKH
application of strict scrutiny. Id. Here, the Court of Appeals
failed to understand the complementary purposes of the
clauses, thereby failing to read these clauses in tandem.
The appellate court’s error inevitably led to its failure to
properly review the State’s action here with the requisite
level of scrutiny—where only those state interests “of the
highest order” can justify state interference with a person
freely expressing their religious conscience. Pet App. 72a;
81a (wrongly applying mere rational basis review)
By preventing individuals from saying what they think
on critical issues and coercing them to utter ideas hostile to
their conscience, the State undermines fundamental First
Amendment principles necessary for good governance of
free people under the Rule of Law. Colorado’s conduct here
poses an inherent risk that the State regime seeks not
5
to advance a legitimate regulatory goal, but to suppress
ideas with which it disagrees and to “manipulate the public
debate through coercion rather than persuasion.” Turner
Broad Sys., Inc. v. FCC, 512 U.S. 622, 641 (1994).
Divesting Petitioner of any fundamental liberty
protection, the appellate court here recharacterized and
misbranded expression of religious conscience as conduct
and characterized the SOGI conversation censorship
law as neutral and generally applicable—even though it
exclusively burdened religious conscience and expression.
The SOGI conversation censorship 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. This Court
should, therefore, apply strict scrutiny to the Colorado law
and reverse the decision of the U.S. Court of Appeals for
the Tenth Circuit.
ARGUMENT
I.
THE LOWER COURTS APPLIED THE WRONG
LEVEL OF SCRUTINY WHEN REVIEWING
THE STATE ACTION HERE
The State of Colorado enacted a Sexual Orientation
Gender Identity (SOGI) conversation censorship law. Colo.
Rev. Stat. § 12-245-202(3.5)(a).
In its review of Colorado’s law, the appellate court
failed to understand the complimentary purposes of the
First Amendment Clauses, thereby failing to read these
clauses in tandem. See, Kennedy v. Bremerton School
District, 597 U.S. 507, 523, 532 (2022).
6
The appellate court’s error inevitably led to its failure
to properly review the Colorado law here with the requisite
level of scrutiny—where only those state interests of the
KLJKHVWRUGHU can justify state interference with a person
freely expressing their religious conscience. Id.; Pet App.
72a; 81a (wrongly applying mere rational basis review)
Amici legislators ask the Court to reinstate a proper
constitutional understanding of the First Amendment.
Each of the amici legislators represent different districts
within their states, which include diverse populations
RI YDULHG DQG RIWHQ FRQÁLFWLQJ LGHQWLWLHV 7KH GXW\ RI
the amici legislators includes an obligation to protect
all of those they serve, not to favor some of them. They
recognize their responsibility to respect their constituents’
expressions of conscience and to promote the open,
respectful exchange of ideas that is essential to a free
society, free from state-imposed bias.
5DWLÀHGLQ WKH)LUVW$PHQGPHQWWRWKH8QLWHG
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. 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).
The liberty guaranteed by the First Amendment is,
at its core, “the principle that each person should decide
for himself or herself the ideas and beliefs deserving of
expression, consideration, and adherence.” Turner Broad.
Sys., Inc. v. FCC, 512 U.S. 622, 641 (1994). Indeed, “[t]he
7
First Amendment envisions the United States as a rich
and complex place where all persons are free to think and
speak as they wish.” 303 Creative LLC v. Elenis, 600 U.S.
570, 603 (2023)
The First Amendment protects “the freedom to think
as you will and to speak as you think.” 303 Creative, 600
U.S. at 584 (cleaned up); Boy Scouts of America v. Dale,
530 U. S. 640, 660-661 (2000). This Court has long held
that “the First Amendment protects an individual’s right
to speak his mind regardless of whether the government
considers his speech sensible and well intentioned or
deeply misguided,” 303 Creative, 600 U.S. at 586 citing,
Hurley v. Irish-American Gay, Lesbian and Bisexual
Group of Boston, Inc., 515 U. S. 557, 574 (1995) Undeniably,
the First Amendment protects not just “speakers whose
PRWLYHV WKH JRYHUQPHQW ÀQGV ZRUWK\ LWV SURWHFWLRQV
belong to all, including to speakers whose motives others
PD\ ÀQG PLVLQIRUPHG RU RIIHQVLYHµ 303 Creative, 600
U.S. at 595. Indeed, “the government may not compel a
person to speak its own preferred messages.” Id. at 586
citing, Tinker v. Des Moines Independent Community
School Dist., 393 U. S. 503 (1969) and National Institute
of Family and Life Advocates v. Becerra, 585 U. S. 755,
766 (2018) (NIFLA)
In the case at bar, the State’s SOGI conversation
censorship law conditions its license to serve as a counselor
in Colorado on whether the counselor’s utterances submit
to the State-preferred irreligious viewpoint that is
antithetical to the counselor’s (and her client’s) Christian
faith. To facilitate such a substantial infringement of
Petitioner’s First Amendment liberty, the appellate
court’s judicial review refused to apply the strict scrutiny
8
normally applied when a government law infringes upon
a person’s fundamental rights. To avoid applying the
requisite level of scrutiny the appellate court held that the
Colorado law: 1) did not violate the fundamental right to
Free Speech because it supposedly regulated conduct and
not speech, and 2) did not violate the fundamental right
to the Free Exercise of Religion because it supposedly
regulated in a content neutral and generally applicable
way. Pet App. 72a; 81a (wrongly applying mere rational
basis review)
When drafting the First Amendment’s protection
for religious expression the writers did not say “make no
law prohibiting or abridging the free exercise of religious
expression, unless you recharacterize and misbrand the
speech as conduct or say the law is neutral and generally
applicable.” Indeed, instead, the Framers of the First
$PHQGPHQWUDWLÀHGWKH)UHH([HUFLVHDQG)UHH6SHHFK
Clauses together, doubly protecting freedom of religious
expression. Kennedy, 597 U.S. at 523, 532.
A.
The First Amendment Doubly Protects
Religious Expression, Warranting the Strictest
Scrutiny of Government Actions
1.
Petitioner’s Injury
Facing a credible threat of future prosecution, along
with an ongoing injury caused by the law’s chilling effect
on her intention to exercise her rights under the First
Amendment, Petitioner challenged the constitutionality
of the Colorado statute. The chill was especially fridged
given the notorious history of Colorado’s hostile and
otherwise unconstitutional enforcement against Christian
9
people. See, e.g., Masterpiece Cakeshop, Ltd. v. Colorado
&LYLO5LJKWV&RPP·Q 584 U.S. 617 (2018); 303 Creative,
600 U.S. 570.
2.
Strict Scrutiny and the Free Speech Clause
5HÁHFWLQJ DQ DFFXUDWH KLVWRULFDO XQGHUVWDQGLQJ RI
the plain meaning of the Free Speech Clause, this Court
stated in 3ROLFH'HS·WRI&KLFDJRY0RVOH\, 408 U.S. 92,
96 (1972)
Our people are guaranteed the right to express
any thought, free from government censorship.
The essence of this forbidden censorship is
content control. Any restriction on expressive
activity because of its content would completely
undercut the profound national commitment
to the principle that debate on public issues
should be uninhibited, robust, and wide-open.
Id. (cleaned up).
A State, therefore, “has no power to restrict expression
because of its message, its ideas, its subject matter, or
its content.” Id. at 95. A State’s “regulation of speech is
content based if a law applies to particular speech because
of the topic discussed or the idea or message expressed”
Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015).
Content-based regulation of expression by government
authorities, therefore, faces strict scrutiny, the highest
standard of review in constitutional analysis. Turner, 512
U.S. at 641; Reed, 576 U.S. at 163; 5$9Y6W3DXO, 505
U.S. 377, 395 (1992)
10
The Colorado law in this case depends on what is
spoken. Because the law regulates both the topic and
viewpoint of the counselor it necessarily is content based.
Here the State’s law “pose[s] 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, 512 U.S. at 641; NIFLA, 585
U.S. at 771.
Holding that the Colorado law regulated conduct, the
appellate court applied mere rational basis scrutiny. Even
if a law “JHQHUDOO\ functions as a regulation of conduct”
though, this Court requires heightened scrutiny if what
the government is regulating (censoring) “under the
statute consists of communicating a message.” Holder v.
Humanitarian Law Project, 561 U.S. 1, 27-28 (2010). That
is, a person’s verbal communication does not magically
convert into conduct when expressed while providing
professional services. See, NIFLA, 585 U.S. at 767.
Moreover, this Court has long prohibited state sponsored
censorship “under the guise” of regulating conduct.
NAACP v. Button, 371 U.S. 415, 439 (1963). Colorado’s
unprincipled characterizing of religious expression here
as conduct (via misbranding it as conversion therapy), is
nothing less than the use of state power to manipulate
the suppression of information with which the State
disagrees. Allowing a state regime to deem the spoken
word conduct, or to deem a statute banning speech as
merely incidentally burdening speech, empowers a regime
to censure any kind of expression. Colorado’s penchant for
misbranding one viewpoint as conduct, as it relates to a
debated issue of great public concern, chronically enables
it to pursue censorship of disfavored ideas and viewpoints.
303 Creative, 600 U.S. at 588 (cleaned up).
11
Just as a religious person’s expression and exercise of
religious conscience is not invidious discrimination, it also
is not “conversion therapy” as conventionally understood
HJWKHLQWHQWLRQDOLQÁLFWLRQRIVHYHUHSK\VLFDOWRUWXUH
non-consensual confinement, etc.). Christian people
know God created all human life in His image. Thus, for
Christian people, every person holds inherent value and
deserves respect. Just as no sincere follower of Jesus
would, therefore, ever discriminate against a person based
on who they are, neither would they engage in the barbaric
cruel conduct conventionally understood as “conversion
therapy.” Christian people are called, though, to adhere
to a standard of behavior and beliefs and can never, then,
concede their constitutionally protected right of religious
conscience. Amici Curiae condemns physical torture and
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. Colorado’s
unprincipled conversion of religious speech into “conduct”
diabolically empowers state regimes to suppress political
and religious information related to mental health with
which the State disagrees.
Colorado cannot change the reality that what it really
seeks to regulate here is the expression of a person’s
viewpoint grounded in religious conscience. Indeed, the
State’s regulatory regime, in enforcing law, must examine
the content of the person’s statements and viewpoint to
determine whether a violation of the law occurred.
Here the law expressly allows communication that
encourages a client’s gender transition or same sex
relationship (e.g., speech that provides “[a]ssistance,
12
support, and understanding for the facilitation of an
individual’s coping, social support and identity exploration
and development,” including “[a]ssistance to person
undergoing gender transition” Colo. Rev. Stat. § 12-245202(3.5)(b)(I)-(II)). The State thus enforces its irreligious
and unscientific view that gender is not immutable,
while prohibiting the counselor from offering a different
viewpoint consistent with her (and her client’s) religious
conscience. (e.g., communication about eliminating sexual
or romantic attraction toward someone of the same sex—
thereby helping, at the client’s request, to realign her
identity and sex in a way consistent with biological truth
and her religious faith). Indeed, even though the client
seeks the communication and guidance, the law expressly
precludes conversations that seek to “change behaviors
or gender expressions or to eliminate or reduce sexual or
romantic attraction or feeling toward individuals of the
same sex.” Colo. Rev. Stat. § 12-245-202(3.5)(a)
When a state targets “particular views taken by
speakers on a subject, the violation of the First Amendment
is all the more blatant.” 5RVHQEHUJHUY5HFWRU 9LVLWRUVRI
WKH8QLYRI9LUJLQLD515 U.S. 819, 829 (1995) citing 5$9
505 U.S. at 391. “[N]o matter how controversial,” the First
Amendment protects all viewpoints. 303 Creative at 603.
Because viewpoint discrimination is so egregious, states
´PXVWDEVWDLQIURPUHJXODWLQJVSHHFKZKHQWKHVSHFLÀF
motivating ideology or the opinion or perspective of the
speaker is the rationale for the restriction.” 5RVHQEHUJHU
515 U.S. at 829. Such speech is not unprotected merely
because it is uttered by a professional counselor. NIFLA,
585 U.S. at 767. Indeed, the First Amendment protects a
professional’s expression by constitutionally limiting the
state from regulating “the content of professional speech,”
13
thus “preserv[ing] an uninhibited marketplace of ideas in
which truth [ ] ultimately prevail[s].” Id., at 772 (cleaned
up). Certainly, no state, including Colorado, holds the
“unfettered power” to reduce a group’s First Amendment
liberty “by simply imposing a licensing requirement.”
Id. at 773. The “danger of content-based regulations in
WKH ÀHOGV RI PHGLFLQH DQG SXEOLF KHDOWKµ LV HVSHFLDOO\
prevalent “where information can save lives.” Id. at 771
(cleaned up). The awful consequence of Colorado’s law is
that suffering people have no constructive access to the
compassionate professional counseling support they seek.
Applying the strictest of scrutiny, this Court, in
Janus, 5$9., and Reed v. Town of Gilbert struck down
government actions compelling speech and regulating
expression in a content-based way (e.g., viewpoint or topicbased regulation). Reed v. Town of Gilbert, 576 U.S. 155
(2015) (holding a town’s content-based regulation failed
strict scrutiny); 5$9 505 U.S. at 382 (holding contentbased law “presumptively invalid”); Janus v. Amer Fed
of State, County, and municipal Employees, Council 31,
et al., 585 U.S. 878 (2018) (holding state’s action violated
speech rights of certain individuals by compelling them
to subsidize private speech on matter of substantial public
concern.)
3.
Strict Scrutiny and the Free Exercise
Clause
It is unconstitutional per se for Colorado to use
its licensing scheme to forcibly change the religious
views of Petitioner and her clients. This Court has
described the Free Exercise Clause as containing an
“absolute prohibition of infringements on the ‘freedom
14
to believe.’” McDaniel v. Paty, 435 U.S. 618, 627 (1978).
See also, Braunfeld v. Brown, 366 U.S. 599, 603 (1961)
(“The freedom to hold religious beliefs and opinions is
absolute.”). Here, in two ways, Colorado uses its licensing
scheme to forcibly change, by force of law and punishment,
the religious views of Petitioner and her clients. First
the State conditions its license to serve as a counselor
on whether the counselor’s utterances submit to an
irreligious secular viewpoint hostile to the counselor’s
(and her client’s) Christian faith. And second, the State
cleverly misbrands religious expression as conduct, so
that it may revoke a counsellor’s license and impose
GUDFRQLDQÀQHVEDVHGXSRQZKDWWKHFRXQVHOORUVD\VWR
the clients who share her religious viewpoint. The First
Amendment absolutely forbids Colorado to do what it
seeks to accomplish here: to change the religious views
of Petitioner and her clients.
5HÁHFWLQJDQDFFXUDWHKLVWRULFDOXQGHUVWDQGLQJRIWKH
plain meaning of the Free Exercise Clause, this Court, in
6KHUEHUWY9HUQHU and Wisconsin v. Yoder, struck down
government actions that substantially interfered with a
person’s sincerely held religious beliefs. Sherbert, 374 U.S.
GHQ\LQJ XQHPSOR\PHQW EHQHÀWV WR D SHUVRQ
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 face the most rigorous scrutiny
when seeking to justify its interference with such a
fundamental liberty interest.
15
This Court has made clear that “religious and
philosophical objections” to SOGI issues are constitutionally
protected. Masterpiece Cakeshop, 584 U.S. at 631 (citing
2EHUJHIHOO 576 U.S. 644, 679-80 (2015) and holding
that “[t]he First Amendment ensures that religious
organizations and persons are given proper protection as
WKH\VHHNWRWHDFKWKHSULQFLSOHVWKDWDUHVRIXOÀOOLQJDQG
so central to their lives and faiths.”).
For Christian people in states like Colorado, though,
that right continues to manifest as a mirage. In practice,
state authorities elevate SOGI rights above all others,
especially the free exercise of religious conscience.
Theophobia has replaced homophobia, and the government
has become the installer and enforcer of this new tyranny.
Special preferences embodied in government SOGI
FODVVLÀFDWLRQV DQG WKH 62*, FRQYHUVDWLRQ FHQVRUVKLS
law in the case at bar, exalt a particular belief system
of what is offensive over another and, by its very nature,
signals official disapproval of a Christian person’s
religious identity, expression, and religious beliefs. “Just
DVQRRIÀFLDOKLJKRUSHWW\FDQSUHVFULEHZKDWVKDOOEH
orthodox in politics, nationalism, religion, or other matters
of opinion, it is not, as the Court has repeatedly held, the
UROH RI WKH 6WDWH RU LWV RIÀFLDOV WR SUHVFULEH ZKDW VKDOO
be offensive.” Masterpiece Cakeshop, 584 U.S. at 638
(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
16
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
UHOLJLRQRUGLVWUXVWRILWVSUDFWLFHVDOORIÀFLDOV
must pause to remember their own high duty
to the Constitution and to the rights it secures.
Masterpiece Cakeshop, 584 U.S. at. 638 (citing Church
of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520,
547 (1993) (internal quotes omitted). It is worth noting
that 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 SOGI
conversation censorship 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 SOGI conversation censorship law in
the case at bar substantially interferes with Petitioner’s
religious identity and exercise of her religious conscience.
Colorado ought not require Petitioner to disavow her
sincerely held religious beliefs to stay licensed. Here
Colorado expressly requires Petitioner to renounce
her religious character, identity, and sincerely held
religious conscience, or face professional discipline.
When a government action imposes a penalty on the free
17
exercise of religious expression, that government action
must face the “most rigorous” scrutiny. Fulton v. City of
Philadelphia, 593 U.S. 522, 541 (2020); Trinity Lutheran
Church of Columbia, Inc. v. Comer, 582 U.S. 449, 466
(2017); 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, 582 U.S. at 466 (citing McDaniel, 435 U.S. at
628 (cleaned up); Fulton, 593 U.S. at 541.
And as Masterpiece Cakeshop recognized, “these
disputes must be resolved with tolerance, without undue
disrespect to sincere religious beliefs,” and without
subjecting persons living a gay lifestyle to indignities
“when they seek goods and services in an open market.”
584 U.S. at 640.
In Fulton WKLV &RXUW FRQÀUPHG WKDW ZKHQ )LUVW
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 (cleaned up).
Put another way, so long as the government can
achieve its interests in a manner that does not
burden religion, it must do so.
593 U.S. at. 541
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.
18
4.
The Complimentary Purposes of the First
Amendment Clauses Work in Tandem to
Doubly Protect Religious Expression
In KennedyWKLV&RXUWFRQÀUPHGWKDW´ . . . 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, 597 U.S. at 523, 532. In such
situations, KennedyUHDIÀUPHGWKHDSSOLFDWLRQRIVWULFW
scrutiny. Id.
Here, the appellate court failed to understand the
complimentary purposes of the clauses, thereby failing to
read these clauses in tandem. The appellate court’s error
inevitably led to its failure to properly review the State’s
law here with the requisite level of scrutiny—where only
those state interests of the KLJKHVW RUGHU can justify
state interference with a person freely expressing their
religious conscience. Pet App. 72a; 81a (wrongly applying
mere rational basis review)
Colorado’s SOGI conversation censorship law
substantially interferes with Petitioner’s expressive
exercise of her religious conscience and identity. Here,
the State expressly requires Petitioner to renounce her
religious expression, conscience, beliefs, and identity, or
face professional discipline under the full force of law
and punishment. When the government substantially
interferes with a citizen’s religious expression and
conscience, that government action must face “strict
scrutiny.” Kennedy, 597 U.S. at 523, 532.
19
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, 585 U.S. at 893. It bears repeating
that 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, 512 U.S. at 641; NIFLA, 585
U.S. at 771.
As in 303 Creative, Colorado again “seeks to compel
this speech in order to excise certain ideas or viewpoints
from the public dialogue.” 303 Creative, 600 U.S. at 588
citing Turner, 512 U.S. at 642 (cleaned up). Here the
SOGI censorship law coerces professionals to betray
their conscience-based convictions. “Forcing free and
independent individuals to endorse ideas they find
objectionable is always demeaning, and for this reason, . . .
DODZFRPPDQGLQJ¶LQYROXQWDU\DIÀUPDWLRQ·RIREMHFWHGWR
beliefs would require ‘even more immediate and urgent
grounds’ than a law demanding silence.” Janus, 585 U.S.
at 893 quoting :HVW9LUJLQLD%GRI(GY%DUQHWWH319
U.S. 624, 633 (1943); and see, 303 Creative, 600 U.S. at 589
(holding that “is enough, more than enough to represent
an impermissible abridgment of the First Amendment’s
right. . . .”)(cleaned up).
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, 585 U.S. at 892
20
FOHDQHG XS ,QGHHG ´>L@I WKHUH LV DQ\ À[HG VWDU LQ RXU
FRQVWLWXWLRQDOFRQVWHOODWLRQLWLVWKDWQRRIÀFLDOKLJKRU
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.”
Barnette, 319 U.S. at 642; see also 303 Creative 600 U.S.
at 584-85. Likewise, “it is not, as the Court has repeatedly
KHOGWKHUROHRIWKH6WDWHRULWVRIÀFLDOVWRSUHVFULEHZKDW
shall be offensive.” 303 Creative, 600 U.S. at 602 quoting,
Masterpiece Cakeshop, 584 U.S. at 665.
Colorado’s deliberate choice to statutorily elevate
RQHYLHZRIZKDWLWÀQGVRIIHQVLYHRYHUDQRWKHULQGLFDWHV
WKH 6WDWH·V ELDVHG QRQQHXWUDO RIÀFLDO GLVDSSURYDO RI
Petitioner’s religious beliefs.
The First Amendment “is a natural outgrowth of the
framers’ distrust of government attempts to regulate
religion and suppress dissent.” Kennedy, 597 U.S. at 524
citing A Memorial and Remonstrance Against Religious
Assessments, in Selected Writings of James Madison 21,
25 (R. Ketcham ed. 2006). This Court has long recognized
“in Anglo–American history, . . . 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.” Kennedy, 597 U.S.
at 524 quoting Capitol Square Review and Advisory Bd.
v. Pinette, 515 U.S. 753, 760 (1995).
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 speech and religion with the need of a
well-ordered central government. 6HHHJ, Mark A. Knoll,
21
A History of Christianity in the United States and Canada
25-65 (1992); F. Makower, The Constitutional History and
&RQVWLWXWLRQRIWKH&KXUFKRI(QJODQG 68-95 (photo. reprt.
1972) (1895). The First Amendment embodies an ideal that
is uniquely American—that true liberty exists only where
PHQDQGZRPHQDUHIUHHWRKROGDQGH[SUHVVFRQÁLFWLQJ
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, 584 U.S. at 663-664 (Thomas, J.,
concurring) (noting, the necessity of applying “the most
exacting scrutiny” in a case where another Colorado law
penalized expression of cake designer) citing Texas v.
Johnson, 491 U.S. 397, 412 (1989); accord, Holder, 561
U.S. at 28; see also, Reed, 576 U.S. at 164.
In Shurtleff v. Boston, this Court unanimously
UHDIÀUPHG WKDW JRYHUQPHQW ´PD\ QRW H[FOXGH VSHHFK
based on ‘religious viewpoint’; doing so ‘constitutes
impermissible viewpoint discrimination,’” 596 U.S. 243,
258 (2022) (quoting Good News Club v. Milford Central
School, 533 U.S. 98, 112 (2001)). See also, 5RVHQEHUJHU,
515 U.S. at 828-830.
The SOGI censorship law requires forced acceptance of
political policy preferences, by force of law and punishment
and is especially wrong because the government action here
substantially interferes with constitutionally protected
liberty. Here, the statute, masquerading as a neutral law
UHJXODWLQJFRQGXFW, effectively censures the viewpoint of
22
many counselors, a religious viewpoint consistent with
their conscience and inherent in their personal religious
identity. Moreover, the SOGI censorship law seeks to
compel these professionals to engage in expression
FRQÁLFWLQJZLWKLW7KHGLVWXUELQJGLPLQLVKPHQWRI)LUVW
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.
6LJQLÀFDQFHRI2EHUJHIHOO
In 2EHUJHIHOO Y +RGJHV, this Court found in the
Constitution a right of personal identity for all citizens.
576 U.S. 644 (2015). The Justices in the majority held that:
“The Constitution promises liberty to all within its reach,
DOLEHUW\WKDWLQFOXGHVFHUWDLQVSHFLÀFULJKWVWKDWDOORZ
SHUVRQVZLWKLQDODZIXOUHDOPWRGHÀQHDQGH[SUHVVWKHLU
identity.” Id. at 651; see also Masterpiece Cakeshop, 584
U.S. 631. 2EHUJHIHOODIÀUPHGWKHUHIRUHQRWMXVWIUHHGRP
WRGHÀQHRQH·VEHOLHIV\VWHPEXWIUHHGRPWRH[HUFLVHRQH·V
conscience associated with it.
Because 2EHUJHIHOOGHÀQHGDIXQGDPHQWDOOLEHUW\ULJKW
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,
LQFOXGLQJ LQWLPDWH FKRLFHV WKDW GHÀQH SHUVRQDO LGHQWLW\
and beliefs,” this new right of personal identity must
broadly comprehend factual contexts well beyond the
same-sex marriage facts of that case. 576 U.S. at 663. If
this Court meant what it said in 2EHUJHIHOO, the right of
SHUVRQDOLGHQWLW\DSSOLHVQRWMXVWWRWKRVHZKRÀQGWKHLU
identity in their sexuality and sexual preferences—but
23
DOVRWRFLWL]HQVZKRGHÀQHDQGH[SUHVVWKHLULGHQWLW\YLD
their religious beliefs.
&KULVWLDQSHRSOHOLNH3HWLWLRQHUDQGKHUFOLHQWVÀQG
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
FRQVWLWXWLRQDOSURWHFWLRQDVWKRVHZKRÀQGWKHLULGHQWLW\
in their sexual preference orientation. The appellate
court grievously erred suggesting otherwise, cancelling
petitioner’s humanity, dignity, and autonomy, demanding
that she abandon her identity when expressing principles
that are so central to her life and faith.
There can be no doubt that this Court’s recently
LGHQWLÀHGVXEVWDQWLYHGXHSURFHVVULJKWRISHUVRQDOLGHQWLW\
protects against government authorities who use public
policy to persecute, oppress, and discriminate against
Christian people. 2 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, 584 U.S.
at 631. “[R]eligious and philosophical objections” to SOGI
issues are constitutionally protected Id. at 631, (citing
2EHUJHIHOO, 576 U.S. at 679-80). Certainly, government
ought to protect, not impede, the free expression of
2. While amici question the cogency of the substantive due
process jurisprudence that birthed the court-created liberty
articulated in 2EHUJHIHOO it expects government to follow the nowestablished constitutional Rule of Law, including when it protects
the personal identity and viewpoints of religious people.
24
religious conscience. 6HHHJ Trinity Lutheran, 582 U.S.
at 462 (holding the government violates the Free Exercise
&ODXVHLILWFRQGLWLRQVDJHQHUDOO\DYDLODEOHSXEOLFEHQHÀW
on an entity giving up its religious character); Burwell v.
Hobby Lobby Stores, Inc., 573 U.S. 682, 719 (2014) (holding
the RFRA applies to federal regulation of activities
of closely held for profit companies); Hosanna-Tabor
(YDQJHOLFDO/XWKHUDQ&KXUFK 6FK v. EEOC, 565 U.S.
171, 196 (2012) (barring an employment discrimination
suit brought against a religious school). State actions must
uphold constitutionally protected freedoms, not grant
special protections for some, while coercing others to
engage in expression contrary to their religious identity
and conscience.
Contrary to 2EHUJHIHOO·Vholding, the appellate court
eviscerates the constitutional right to one’s religious
identity and religious expression.
6.
Strict Scrutiny for Expression Grounded
in Religious Conscience and Identity
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.
597 U.S. at 523, 532. 2EHUJHIHOO 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.
Government action not only must avoid interfering with a
citizen’s religious expression and free exercise of religious
25
conscience, protected by the First Amendment, it must
also refrain from violating their personal religious identity
rights. In this light, therefore, the appellate court’s
application of low-level rational basis scrutiny must not
stand. If it remains, government authorities will continue
using such laws to oppress religious people like Petitioner
and other professionals under the guise professional
misconduct regulation. Moreover, only if this Court
restores full protection for First Amendment freedom
of conscience, will other constitutional freedoms remain
secured. This Court should, therefore, restore the right of
all persons to exercise fundamental freedoms under the
First Amendment, as applied to the states through the
Fourteenth Amendment.
B. Colorado’s Law is Not Neutral or Generally
Applicable, but Even if it is, this Court Should
Revisit Employment Division v. Smith Which
Erroneously Diminished the Free Exercise of
Religious Conscience as a Fundamental Right.
While the Petition in this case asks this Court to
decide whether the government’s action violates just the
Free Speech Clause, this Court has held that the First
Amendment Clauses must be read together. Given this
Court’s guidance in Kennedy, and the appellate court’s
faulty Free Exercise Clause analysis culminating in its
refusal to apply strict scrutiny, amici provide the following
to assist this Court in reaching a sound constitutional basis
for protecting First Amendment liberty in our nation.
To avoid applying strict scrutiny, the court of appeals
wrongly characterized Colorado’s law as neutral and
generally applicable. Given that the law primarily, if not
26
exclusively, burdens religious conscience and expression,
it strains credulity to call it a neutral law of general
applicability. (See discussion supra.) Because counseling
is inherently value-laden and ideologically charged,
many individuals struggling with issues involving human
sexuality look for counselors whose views and values
align with their own. That is exactly what happened in
this case when Petitioner’s clients came to her seeking
her conscience-based words of wisdom to assist in
realigning their identity and sexuality consistent with the
way God created them. Colorado cannot statutorily ban
this viewpoint while legislatively approving a completely
contrary viewpoint—and then claim it enacted a neutral
and generally applicable law that regulates conduct.
Even if the government could properly characterize
the law here as neutral and generally applicable, (thereby
triggering mere rational basis review under Employment
Division v. Smith), this Court still must reverse the
appellate court. In Smith, this Court departed from its
above discussed constitutional jurisprudence recognizing
freedom of religion as a fundamental liberty interest
protected by the First A mendment. 494 U.S. 872
(1990). Even though the government’s action in Smith
substantially infringed on the free exercise of religious
liberty, SmithUHTXLUHGQRMXVWLÀFDWLRQE\WKHJRYHUQPHQW
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
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
27
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.
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
FDWHJRULFDOO\SURKLELWVRUFRPPDQGVVSHFLÀHG
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, 593 U.S. at 545 (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, 6PLWK·V rule diverges drastically from the
protections afforded to religious conscience during the
founding period. When “important clashes between
generally applicable laws and the religious practices
of particular groups” occurred, “colonial and state
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.
28
legislatures were willing to grant exemptions—even
when the generally applicable laws served critical state
interests.” Id. at 582.
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 582-583.
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 583-84. 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 594.
Undeniably, the only real limit on religious liberty
during the founding period, according to the constitutions
29
and laws of the states, was whether conduct would
endanger ‘“the public peace” or “safety.”’ Id. at 575. 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 579 (citations omitted).
,Q FRPSDULVRQ WR WKH YHU\ VSHFLÀF PHDQLQJ RI WKH
“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
30
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 6KHUEHUWY9HUQHU 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,
*RQ]DOHV Y 2 &HQWUR (VSLULWD %HQHÀFHQWH 8QLDR GR
9HJHWDO, 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.
&RQVHTXHQWO\XQOHVVDVWDWHDIÀUPDWLYHO\DFWVWRUHVWRUH
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,
DQGWKHKLVWRU\RIWKRVHZKRKDYHÁHGWRRXUVKRUHVWKH
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 revisit and reverse Smith.
31
The SOGI conversation censorship law in the case at bar
(and other ubiquitous special SOGI preferences, imposed
by state and local authorities), exacerbate the threat to
the free exercise and expression of religious conscience.
As discussed previously, 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” SOGI preferences often
weaponize state action to eliminate the First Amendment
as an important constitutional constraint on the exercise
of state authority. Indeed, since Smith, religious people
LQRXUQDWLRQIDFHDIDUPRUHKRUULÀFSUHGLFDPHQWWKDQ
WKH GUDIWHUV DQG UDWLÀHUV RI WKH &RQVWLWXWLRQ DQG %LOO
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 promulgated a rule compelling
all state judges to address attorneys and parties using
SOGI pronouns provided by the attorneys and parties.
See, &RPPHQWRIWKH5HOLJLRXV/LEHUW\/DZ6HFWLRQRIWKH
6WDWH%DURI0LFKLJDQRQ3URSRVHG$PHQGPHQWRI5XOH
RIWKH0LFKLJDQ&RXUW5XOHV (The rule provides no
DFFRPPRGDWLRQIRUUHOLJLRXVFRQVFLHQFH
This Court should revisit 6PLWK·V diminishment
of religious liberty, especially considering 2EHUJHIHOO·V
recognition of constitutional protection afforded to
personal identity, liberty, and equal protection. And
especially in light of .HQQHG\·V recognition that the
Constitution requires that the First Amendment Clauses
be read together—doubly protecting religious expression.
32
CONCLUSION
For the reasons provided in this brief, Amici Curiae
urge this Court to apply strict scrutiny to Colorado’s SOGI
conversation censorship law and reverse the United States
Court of Appeals for the Tenth Circuit.
Respectfully submitted,
WILLIAM WAGNER
Counsel of Record
GREAT LAKES JUSTICE CENTER
5600 West Mount Hope Highway
Lansing, MI 48917
(517) 643-1765
prof.wwjd@gmail.com
Counsel for Amici Curiae
June 6, 2025
APPENDIX
i
TABLE OF APPENDICES
Page
A PPENDIX — LIST OF AMICI CURIAE:
LEGISL AT OR S FROM 3 0 STAT E
LEGISLATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . .1a
1a
A
APPENDIX — Appendix
LIST OF AMICI
CURIAE:
LEGISLATORS FROM 30 STATE LEGISLATURES
Colorado State Legislators of the 75 th Colorado
General Assembly include:
Rep. Scott Bottoms represents the citizens of
Colorado living in House District 15 in El Paso
County.
Rep. Brandi Bradley represents the citizens of
Colorado living in House District 39 in Douglas
County.
Rep. Max Brooks represents the citizens of Colorado
living in House District 45 in Douglas County.
Rep. Ken DeGraaf represents the citizens of Colorado
living in House District 22 in El Paso County.
Rep. Stephanie Luck represents the citizens of
Colorado living in House District 60, including
Chaffee, Custer, Fremont, Pueblo, and Teller
Counties.
Rep. Chris Richardson represents the citizens of
Colorado living in House District 56, including
Adams, Arapahoe, Cheyenne, El Paso, Elbert, Kit
Carson, and Lincoln Counties.
Rep. Larry Don Suckla represents the citizens of
Colorado living in House District 58, including Delta,
Dolores, Gunnison, Hinsdale, Montezuma, Montrose,
Ouray, and San Miguel Counties.
2a
Appendix A
Sen. Mark Baisley represents the citizens of Colorado
living in Senate District 4, including Chaffee, Custer,
Douglas, Fremont, Jefferson, Lake, Park, and Teller
Counties.
A laska Leg islators of the 34th A laska State
Legislature include:
Rep. Kevin McCabe represents the citizens of
Alaska living in House District 30, including Mat-Su
Borough and Denali Borough.
Rep. Sarah Vance represents the citizens of Alaska
living in House District 6, including the Lower Kenai
Peninsula, from Kasilof to the head of Kachemak
Bay.
A rizona Legislators of the 57 th A rizona State
Legislature include:
Sen. Frank Carroll represents the citizens of Arizona
living in Senate District 28, including Maricopa
County.
Sen. Anthony Kern represents the citizens of Arizona
living in Senate District 27, including Maricopa
County.
Arkansas Legislators of the 95th General Assembly
of the Arkansas State Legislature include:
Rep. Mary Bentley represents the citizens of
Arkansas living in House District 54, including
Perry, Faulkner, Saline, and Yell Counties.
3a
Appendix A
Rep. Alyssa Brown represents the citizens of
Arkansas living in House District 41, including
Cleburne and Stone Counties.
Rep. Ryan Rose represents the citizens of Arkansas
living in House District 48, including Crawford and
Sebastian Counties.
Sen. Matt McKee represents the citizens of Arkansas
living in Senate District 6, including Garland and
Saline Counties.
Connecticut Legislators of the 2025 Regular Session
of the Connecticut General Assembly include:
Rep. Mark Anderson represents the citizens of
Connecticut living in House District 62, including
+DUWIRUGDQG/LWFKÀHOG&RXQWLHV
Rep. Anne Dauphinais represents the citizens of
Connecticut living in House District 44, including
.LOOLQJO\3ODLQÀHOGDQG6WHUOLQJ&RXQWLHV
Delaware Legislators of the 153rd Delaware General
Assembly include:
Sen. Bryant Richardson represents the citizens of
Delaware living in Senate District 21, including
Sussex County.
Georgia Legislators of the 2025-2026 Regular Session
of the Georgia State Legislature include:
4a
Appendix A
Rep. Charlice Byrd represents the citizens of
Georgia living in House District 20, including
Cherokee County.
Rep. Matthew Gambill represents the citizens
of Georgia living in House District 15, including
Cartersville, Emerson, Allatoona, and Bartow
Counties.
Rep. Noelle Kahaian represents the citizens of
Georgia living in House District 81, including Henry
County.
Idaho Legislators of the 2025 Idaho State Legislature
include:
Rep. Barbara Dee Ehardt represents the citizens
of Idaho living in House District 33, including
Bonneville County.
Rep. Jordan Redman represents the citizens of Idaho
living in House District 3, including Kootenai County.
Rep. Heather Scott represents the citizens of Idaho
living in House District 2A, including Bonner,
Clearwater, Shoshone, Benewah, and Kootenai
Counties.
Rep. Steven Tanner represents the citizens of Idaho
living in House District 13, including Canyon County.
Illinois Legislators of the 104 th Illinois General
Assembly include:
5a
Appendix A
Rep. Jed Davis represents the citizens of Illinois
living in House District 75, including DeKalb,
Grundy, Kendall, LaSalle, and Will Counties.
Indiana Legislators of the 124th Indiana General
Assembly include:
Rep. Shane Lindauer represents the citizens of
Indiana living in House District 63, including Dubois,
Daviess, Martin, and Pike Counties.
Iowa Legislators of the 91st General Assembly of the
Iowa Legislature include:
Sen. Sandy Salmon represents the citizens of Iowa
living in Senate District 29, including Bremer, Butler,
Chickasaw, and Floyd Counties.
Kansas Legislators of the 2025-2026 Regular
Session of the Kansas State Legislature include:
Rep. Bill Rhiley represents the citizens of Kansas
living in House District 80, including Cowley and
Sumner Counties.
Sen. Brad Starnes represents the citizens of Kansas
living in Senate District 22, including Riley County.
Louisiana Legislators of the 2025 Regular
Legislative Session of the Louisiana State Legislature
include:
6a
Appendix A
Rep. Kathy Edmonston represents the citizens of
Louisiana living in House District 88, including
Ascension Parish.
Maine Legislators of the 132 nd Maine State
Legislature include:
Rep. Katrina Smith represents the citizens of Maine
living in House District 62, including Waldo, Lincoln,
and Kennebec Counties.
Sen. Stacey Guerin represents the citizens of Maine
living in Senate District 4, including Penobscot and
Piscataquis Counties.
Michigan Legislators of the 103 rd Michigan
Legislature include:
Rep. Gregory Alexander represents the citizens of
Michigan living in House District 98, including
Huron, Lapeer, Sanilac, and Tuscola Counties.
Rep. Joseph Aragona represents the citizens of
Michigan living in House District 60, including
Macomb County.
Rep. Ann Bollin represents the citizens of
Michigan living in House District 49, including
Livingston and Oakland Counties.
Rep. Cam Cavitt represents the citizens of
Michigan living in House District 106, including
7a
Appendix A
A lcona, A lpena, Cheboygan, Montmorency,
Oscoda, and Presque Isle Counties.
Rep. Nancy DeBoer represents the citizens of
Michigan living in House District 86, including
Allegan and Ottawa Counties.
Rep. Jay DeBoyer represents the citizens of
Michigan living in House District 63, including
Macomb and St. Clair Counties.
Rep. Joseph Fox represents the citizens of
Michigan living in House District 101, including
Lake, Mason, Newaygo, Oceana, and Wexford
Counties.
Rep. Jaime Green represents the citizens of
Michigan living in House District 65, including
Lapeer, Macomb, and St. Clair Counties.
Rep. Mike Hoadley represents the citizens of
Michigan living in House District 99, including
Arenac, Bay, Clare, Gladwin, Iosco, and Ogemaw
Counties.
Rep. Gina Johnsen represents the citizens of
Michigan living in House District 78, including
Kent, Ionia, Barry, and Eaton Counties.
Rep. Luke Meerman represents the citizens of
Michigan living in House District 89, including
Ottawa, Muskegon, and Kent Counties.
8a
Appendix A
Rep. Brad Paquette, represents the citizens of
Michigan living in House District 37, including
Berrien and Cass Counties.
Rep. Rachelle Smit represents the citizens of
Michigan living in House District 43, including
Allegan, Barry, Eaton, and Ottawa Counties.
Rep. Jamie Thompson represents the citizens of
Michigan living in House District 28, including
Monroe and Wayne Counties.
Rep. Curtis Vanderwall represents the citizens of
Michigan living in House District 102, including
Manistee, Mason, Muskegon, and Oceana
Counties.
Rep. Jason Woolford represents the citizens of
Michigan living in House District 50, including
Livingston County.
Sen. Ed McBroom represents the citizens of
Michigan living in Senate District 38, including
A lger, Baraga, Delta, Dickinson, Gogebic,
Houghton, Iron, Keweenaw, Luce, Marquette,
Menominee, Ontonagon, Schoolcraft, Chippewa
and Mackinac Counties.
Sen. Lana Theis represents the citizens of Michigan
living in Senate District 22, including Livingston,
Genesee, Ingham, Oakland, and Shiawassee
Counties.
9a
Appendix A
Missouri Legislators of the 103rd Missouri General
Assembly include:
Rep. Bob Titus represents the citizens of Missouri
living in House District 139, including Christian
County.
Montana Legislators of the 69th Montana State
Legislature include:
Rep. Amy Regier represents the citizens of Montana
living in House District 6, including Flathead County.
New Mexico Legislators of the 57th New Mexico
Legislature include:
Sen. William Sharer represents the citizens of New
Mexico in Senate District 1, including San Juan
County.
North Carolina Legislators of the 2025-2026th
Session of the North Carolina General Assembly
include:
Rep. Donnie Loftis represents the citizens of North
Carolina in House District 109, including Gaston
County.
Sen. Ted Alexander represents the citizens of North
Carolina in Senate District 44, including Cleveland,
Gaston, and Lincoln Counties.
10a
Appendix A
North Dakota Legislators of the 69th North Dakota
Legislative Assembly include:
Rep. Donna Henderson represents the citizens of
North Dakota living in House District 15, including
Cavalier, Ramsey, and Towner Counties.
Rep. Desiree Morton represents the citizens of North
Dakota living in House District 46, including Cass
County.
Rep. SuAnn Olson represents the citizens of North
Dakota living in House District 8, including Burleigh,
Emmons, and McLean Counties.
Sen. Keith Boehm represents the citizens of North
Dakota living in Senate District 33, including Mercer,
Mclean, Morton, and Oliver Counties
Oklahoma Legislators of the 60 th Oklahoma State
Legislature include:
Rep. Cody Maynard represents the citizens of
Oklahoma living in House District 21, including
Bryan and Marshall Counties.
Ohio Legislators of the 136th Ohio General Assembly
include:
Rep. Gary Glick represents the citizens of Ohio living
in House District 88, including Sandusky and Seneca
Counties.
11a
Appendix A
Oregon Legislators of the 83rd Oregon Legislative
Assembly include:
Sen. Diane Linthicum represents the citizens of
Oregon living in Senate District 28, including
Klamath and Deschutes Counties.
Pennsylvania Legislators of the 2025-2026 Regular
Session of the Pennsylvania General Assembly include:
Rep. David Zimmerman represents the citizens of
Pennsylvania living in House District 99, including
Berks and Lancaster Counties.
South Carolina Legislators of the 126th South Carolina
General Assembly include:
Rep. John McCravy III represents the citizens of
South Carolina living in House District 13, including
Greenwood and Laurens Counties.
Sen. Lawrence Grooms represents the citizens of
South Carolina living in Senate District 37, including
Berkeley and Charleston Counties.
Sen. Mike Reichenbach represents the citizens of
South Carolina living in Senate District 31, including
Florence County.
Tennessee Legislators of the 114th Tennessee General
Assembly include:
12a
Appendix A
Rep. Chris Todd represents the citizens of Tennessee
living in House District 73, including Madison
County.
Sen. Janice Bowling represents the citizens of
Tennessee living in Senate District 16, including
Coffee, Dekalb, Franklin, and Grundy Counties.
Texas Legislators of the 89 th Texas Legislature
include:
Rep. Mark Dorazio represents the citizens of Texas
living in House District 122, including Bexar County.
Utah Legislators of the 2025 General Session of the
Utah State Legislature include:
Rep. Kay Christofferson represents the citizens of
Utah living in House District 53, including Utah
County.
Rep. Mike Petersen represents the citizens of Utah
living in House District 2, including Cache County.
Rep. Troy Shelley represents the citizens of Utah
living in House District 66, including Utah, Juab,
and Sanpete County.
Rep. Rex Shipp represents the citizens of Utah living
in House District 71, including Iron County.
13a
Appendix A
West Virginia Legislators of the 87th West Virginia
Legislature include:
Del. Elias Coop-Gonzalez represents the citizens of
West Virginia living in House District 67, including
Randolph and Pendleton Counties.
Wyoming Legislators of the 68th Wyoming Legislature
include:
Rep. Scott Heiner represents the citizens of Wyoming
living in House District 18, including Sweetwater and
Lincoln Counties.
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.