Amicus Curiae Brief — Deboer v. Snyder, 135 S. Ct. 1040 (2015) (No. 14-571)

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Nos. 14-556, 14-562, 14-571, 14-574--

Ju the Supreme Court of the Hnited Seats

JAMES OBERGEFELL, et al., Petitioners,

Vv.

RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT

OF HEALTH, et al., Respondents.

VALERIA TANCO, et al., Petitioners,

Vv.

BILL HASLAM, GOVERNOR OF TENNESSEE, et al., Respondents.

ee ee

APRIL DEBOER, et al., Petitioners,

Vv.

RICK SNYDER, GOVERNOR OF MICHIGAN, et al., Respondents.

GREGORY BOURKE, et al., Petitioners,

Vv.

STEVE BESHEAR, GOVERNOR OF KENTUCKY, et al., Respondents.

On Writs of Certiorari to the United States

Court of Appeals for the Sixth Circuit

——E

Brief of Amici Curiae Religious Ougunientious,

Public Speakers, and Scholars Concerned About

Free Speech in Support of Respondents

JEFFREY C. MATEER KELLY J. SHACKELFORD

Hirao S. Sasser, III (Counsel of Record)

MatTTHEew J. KACSMARYK

Justin E. BUTTERFIELD

LiBERTY INSTITUTE

2001 W. Plano Parkway, Suite 1600

Plano, Texas 75075

Tel.: (972) 941~4444

Fax.: (972) 941-4457

kshackelford@libertyinstitute.org

Counsel for Amici Curiae

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

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF AMICI CURIAE

SUMMARY OF ARGUMENT

ARGUMENT

IT.

ITT.

IV.

For over twenty centuries, the universal

Christian church has included followers of

Jesus Christ who spoke and preached on

controversial issues in ways that offended

powerful forces in society.

The freedom to speak according to religious

conscience is essential to the dignity of each

person and to the stability of our self-

governing Republic. -

The Free Speech Clause is most needed when

the religious dissenter’s views are

controversial and inconvenient. .

In the same-sex marriage debate, many high-

profile religious dissenters have been actively

silenced, while others are chilled into

silence — thereby harming the marketplace

of ideas. ; & “eeeed

A. State actors have silenced religious

dissenters who dared speak aloud their

views on marriage. :

. 16

. 18

B. Through memoranda, manuals, and

training materials, federal agencies have

imposed speech codes on their employees,

silencing or at least chilling religious

dissenters. “~ 27

C. For a cautionary tale, this Court should

look to other English-speaking

nations that have legalized same-sex

marriage. 29

DE ssesanaxnaes eee. a oe

ili

TABLE OF AUTHORITIES

CASES

Buckley v. Valeo,

424 U.S. 1 (1976)

Burwell v. Hobby Lobby Stores, Inc.,

134 S. Ct. 2751 (2014)

Citizens United v. FEC,

558 U.S. 310 (2010) ..........

City of L.A. v. Alameda Books,

535 U.S. 425 (2002)

Cohen v. California,

403 U.S. 15 (1971)

. 13, 14,

Denver Area Educ. Telcoms. Consortium v. FCC,

518 U.S. 727 (1996)

Hill v. Colo.,

530 U.S. 703 (2000)

15,

Int'l Soc’y for Krishna Consciousness v. Lee,

505 U.S. 672 (1992)

§15 U.S. 819(1995) . .. .....

Trinity W. Univ. v. NSBS,

2015 NSSC 25 (Can.)

Turner Broad. Sys. v. FCC,

512 U.S. 622 (1994)

. 18

Rosenberger v. Rector & Visitors of the Univ. of Va.,

14,

United States v. Playboy Entertainment Group, Inc..,

529 U.S. 803 (2000)

Virginia v. Hicks,

539 U.S. 113 (2003) . , . . 15,18

CONSTITUTION

U.S. amend. I passim

OTHER AUTHORITIES

Acts 6:8-7:60 .. 11

Acts 16:16-25 , «+ + eaennn -

Acts 19:23-34 .. -* 11

Alliance Defending Freedom, EMU Student

Achieves Final Victory After Court Rules

“Tolerance is a Two-Way Street,” http://www.

alliancedefendingfreedom.org/News/PRDetail/

141 (Dec. 10, 2012) 24

Alliance Defending Freedom, Fire Chief Sues City of

Atlanta, http://www.adfmedia.org/News/

PRDetail/9520 (Feb. 18, 2015) . ze 21

Alliance Defending Freedom, Heuston, We Have A

Problem, http://blog.alliancedefendingfreedom.

org/2014/10/15/houston-we-have-a-problem-and-

a-constitution/ (October 15, 2014) . 26

Alliance Defending Freedom, MSU Quickly Settles

Lawsuit, http://www.adfmedia.org/News/

PRDetail/1430 (Nov. 13, 2006) 25

A Public Statement, Freedom to Marry, Freedom to

Dissent: Why We Must Have Both, REAL CLEAR

POLITICS (April 22, 2014),

http://www.realclearpolitics.com/articles/2014/

04/22/freedom_to_marry_freedom_to_dissert_

why_we_must_have_both_122376.html . .. 19

Patrick Craine, Bishop obeys govu’t order to remove

Catholic school teaching on sinfulness of

homosexual acts, LIFE SITE NEWS (October 18,

2013), https://www.lifesitenews.com/

news/bishop-obeys-govt-order-to-remove-

catholic-school-teaching-on-sinfulness-of . . . 29

CITS-TV re Word.ca and Word TV, CBSC Decision

08/09-2142 & 09/10-0383+ (Decided June 22,

2010) 30

DOJ Pride, “LGBT Inclusion at Work: The 7 Habits

of Highly Effective Managers,”

http://www.lc. ——eeeeee pr_doj_

Igbt_directive_052113.pdf ; 28

Steve Doughty, Christians ARE Too Scared to

Admit Beliefs — Because they Fear Being Mocked

or Treated like Bigots, say Equality Chiefs, THE

DAILY MAIL (March 11, 2015), http://www.

dailymail.co.uk/news/article-2990678/Christians-

scared-admit-beliefs-fear-mocked-treated-like-

bigots-say-equality-chiefs.htm] . gl

Genesis 1:27. . ee : 12, 27

Liberty Institute, Distinguished Public Health

Official Denied Post, https://www.liberty

institute.org/walsh (Sep. 23, 2014) 22

Liberty Institute, https://libertyinstitute.org/

pages/issues/in-the-public-arena/liberty-

institute-defends-airman-persecuted-for-his-

faith (October 12, 2013) . Be 23

Liberty Institute, Navy Threatened to End Career of

Chaplain, https://www.libertyinstitute.org/

modderfacts (March 18, 2015) ; ee a ae

Jaan Lilles, Nova Scotia Barristers Society without

Jurisdiction to refuse Trinity Western University

grads, LEXOLOGY (March 5,

2015), http://www.litigate.com/nova-scotia-

barristers-society-without-jurisdiction-to-refuse-

twu-grads.. ; : 29

Mark 6:14-29 _. a

Mark 10:6 27

Mark 10:6-8 12

Matthew 14:1-12 , oer ee |

J. Milton, Areopagitica (1644) ; a

Pew Research Center, U.S. Religious Landscape

Survey, (February 2008), http://religions.

pewforum.org/pdf/report-religious-landscape-

study-fullpdf .... . . =. 16

Bill Scaggs, “Including Sexual Orientation and

Gender Identity in Diversity,” U.S. Dep’t of

Agriculture (Jan. 2010), http:/Awww.nrcs.usda.

gov/Internet/FSE_ ee 0

15573.pdf 27

vil

Mags Storey, CTS Drops McVety Over Controversial

Remarks, CHRISTIAN WEEK (MARCH 1, 2011),

www.christianweek.org/cts-drops-mcvety-over-

controversial-remarks/. .. ........ a

Tertullian, De idolatria (J.H. Waszink and

J.C.M. Van Winden eds., E.J. Brill 1987) (ca.

197-208) 4 are a:

U.S. Office of Personnel Management, “Guidance

Regarding the Employment of Transgender

Individuals in the Federal Workplace,”

http://www.opm.gov/policy-data-oversight/

diversity-and-inclusion/reference-materials/

gender-identity-guidance/ .. 27

Kris Wells, Poisoning the School Environment, The

Alberta Teachers’ Association, www.teachers.ab.

ca/Publications/ATAMagazine/Volume2086/

Environment.aspx .... . . . 30

Hilary White, UK Gumt to Faith Schools: Promote

Homosexuality and Other Religions or Face

Closure, LIFE SITE NEWS (February 2, 2015),

https://www.lifesitenews.com/news/uk-gvmt-to-

faith-schools-promote-homosexuality-and-other-

religions-or-face .............. “ 30, 31

INTEREST OF AMICI CURIAE'

Amici are religious organizations, public speakers,

and scholars who support the First Amendment free

speech rights of Christian ministers, teachers, and

leaders who are compelled by faith and conscience to

preach and speak aloud their millennia-old and

sincerely held religious view that marriage is the

sacred union of one man and one woman.

MINISTRIES

National Religious Broadcasters (“NRB”) is a non-

partisan international association of Christian

broadcasters and communicators united by purpose

and message: to proclaim the Good News of eternal life

through Jesus Christ; to transform culture through the

application of sound biblical teaching; and to advance

biblical truth, to promote media excellence, and to

defend free speech. NRB reaches every continent

through Christian radio, television, internet, and other

media arts. NRB members hold deep-rooted beliefs that

religious liberty is the cornerstone of a free society, and

that we must protect those freedoms so that the

transforming reality of Jesus Christ can reach hearts

and minds the world over. NRB also works to protect

access to the world’s electronic and digital media,

ensuring that the Gospel goes out unimpeded to reach

the four corners of the earth.

' All parties of record consented to the filing of this amicus brief.

Amici state that no portion of this brief was authored by counsel

for a party and that no person or entity other than amici or their

counsel made a monetary contribution to the preparation or

submission of this brief.

The Billy Graham Evangelistic Association

(“BGEA”), founded in 1950 by Billy Graham, proclaims

the Gospel of Jesus Christ throughout the world by

every effective means available. From its headquarters

in Charlotte, N.C., the BGEA directs a wide range of

domestic and international ministries, including large-

scale festivals led by evangelists Franklin Graham and

Will Graham; the Billy Graham Rapid Response Team

of crisis-trained chaplains; My Hope national

evangelism outreach projects; The Billy Graham

Library in Charlotte, N.C.; The Billy Graham Training

Center at The Cove in Asheville, N.C.;

SearchforJesus.net, an Internet evangelism project

reaching thousands of people for Christ online; and

many others through print, television, telephone, radio

and the Internet. BGEA’s ministry is based on its

statement of faith, which states, in part, that “God

instituted monogamous marriage between male and

female as the foundation of the family and the basic

structure of human society. For this reason, we believe

that marriage is exclusively the union of one genetic

male and one genetic female.”

In Touch Ministries (“ITM”) is a Christian non-profit

ministry founded by Dr. Charles Stanley in 1972.

Today, “In Touch with Dr. Charles Stanley” is

broadcast around the world via radio, television,

podcasts, and the Internet, reaching over 1,200 radio

and television outlets in more than 50 languages. ITM

also produces books, studies, discipleship resources,

and the award-winning In Touch magazine to more

than 1.5 million households every month. The mission

of ITM is to “lead people worldwide into a growing

relationship with Jesus Christ and to strengthen the

local church.”

Samaritan’s Purse is a nondenominational

evangelical Christian organization providing spiritual

and physical aid to hurting people around the world.

Since 1970, Samaritan’s Purse has helped meet needs

of people who are victims of war, poverty, natural

disasters, disease, and famine with the purpose of

sharing God’s love through His Son, Jesus Christ.

Samaritan’s Purse serves in over 100 countries to

combat human trafficking, fight Ebola, provide access

to clean water, provide crisis relief through food and

shelter programs, and touch the lives of millions of

children through Operation Christmas Child.

Samaritan’s Purse bases its ministry on its Statement

of Faith, which in part declares that “God instituted

monogamous marriage between male and female as the

foundation of the family and the basic structure of

human society. For this reason, we believe that

marriage is exclusively the union of one genetic male

and one genetic female.”

Pathway to Victory (“PTV”) is the broadcast ministry

of Dr. Robert Jeffress. PTV empowers Christians

worldwide, through radio, television, and online

programming, to walk in newness of life. PTV seeks to

satisfy the spiritual hunger of seasoned believers while

also reaching those who do not know Christ. More than

700 radio stations in the United States broadcast the

daily radio program, while Daystar, a Christian

television network, airs PTV both in the United States

and internationally. PTV’s mission is “to provide

practical application of God’s Word to everyday life

through clear, Biblical teaching.” PTV’s goal is “to lead

people to become obedient and reproducing disciples of

Jesus Christ, as He commanded in Matthew 28:18—20.”

The Chuck Colson Center for Christian

Worldview (the “Colson Center”), founded by Chuck

Colson, seeks to build a movement of Christians

committed to living and defending the Christian

worldview. The Colson Center applies sound Christian

worldview thinking to the key issues of the day through

its website, online newsletters, and radio programs

such as “BreakPoint” with Eric Metaxas and John

Stonestreet, “The Point” with John Stonestreet, and the

half-hour weekend interview show “BreakPoint this

Week.”

SEMINARIES

Dallas Theological Seminary (“DTS”) is an

evangelical seminary whose mission is “to glorify God

by equipping godly servant-leaders for the

proclamation of His Word and the building up of the

body of Christ worldwide,” or, more simply, to “Teach

Truth. Love Well.” Since its founding in 1924, many of

DTS’s alumni have gone on to notable professions

preaching, teaching, and writing about their deeply-

held religious beliefs that marriage is the union of one

man and one woman.

The Southern Baptist Theological Seminary

(“SBTS”), founded in 1859, is the flagship school of the

Southern Baptist Convention and one of the largest

seminaries in the world. The mission of SBTS “is to be

totally committed to the Bible as the Word of God, to

the Great Commission as our mandate, and to be a

servant of the churches of the Southern Baptist

Convention by training, educating, and preparing

ministers of the gospel for more faithful service.” For

more than 150 years, SBTS has braced the winds of

theological and intellectual change by standing firmly

upon the confessional vision of the school’s founding

faculty. SBTS has students from all fifty states and

forty-one counties.

Southeastern Baptist Theological Seminary

(“SEBTS”) is a seminary of the Southern Baptist

Convention and trains Great Commission-minded

ministers of the Gospel. SEBTS was founded in Wake

Forest, North Carolina in 1950. The mission of SEBTS

is “to glorify the Lord Jesus Christ by equipping

students to serve the church and fulfill the Great

Commission (Matthew 28:18—20).”

PUBLIC SPEAKERS & SCHOLARS

Dr. Daniel L. Akin is President of and Professor of

Preaching and Theology at Southeastern Baptist

Theological Seminary. Dr. Akin received his Bachelor

of Arts from The Criswell College, a Master of Divinity

from Southwestern Baptist Theological Seminary, and

a Doctorate of Philosophy from the University of Texas

at Arlington. He is editor of The Christ Centered

Exposition commentary series.

Dr. Mark L. Bailey is President of Dallas Theological

Seminary and Professor of Bible Exposition. Dr. Bailey

received his Bachelor of Arts from Southwestern

College, his Master of Divinity and Master of Theology

from Western Conservative Baptist Seminary, and his

Doctorate of Philosophy in Bible Exposition from Dallas

Theological Seminary. Dr. Bailey has _ written

numerous articles and books, including To Follow Him:

The Seven Marks of a Disciple and Nelson’s New

Testament Survey: Discovering the Essence,

Background & Meaning About Every New Testament

Book.

Dr. Francis J. Beckwith is a professor of philosophy,

and associate director of the philosophy graduate

program, at Baylor University. An expert in church-

state issues, Dr. Beckwith is the author of more than a

dozen books including To Everyone An Answer: A Case

for the Christian Worldview (IVP); Politics for

Christians: Statecraft As Soulcraft (IVP); and the

forthcoming Taking Rites Seriously: Law, Politics, and

the Reasonableness of Faith (Cambridge University

Press). He served as the 57th president of the

Evangelical Theological Society and was a member of

the American Philosophical Association’s Committee on

Philosophy and Law.

Dr. Robert A.J. Gagnon is an associate professor of

New Testament at Pittsburgh Theological Seminary.

He writes and teaches on moral and social issues,

including the issue of same-sex marriage. Dr. Gagnon

obtained his Bachelor of Arts from Dartmouth College,

his Master of Theological Studies from Harvard

Divinity School, and his Doctorate of Philosophy from

Princeton Theological Seminary. He is a member of the

Society of Biblical Literature and an ordained elder in

the Presbyterian Church (USA). Dr. Gagnon has been

quoted in or written for The New York Times, NPR,

CNN, and Christianity Today. He authored several

works, including The Bible and Homosexual Practice:

Texts and Hermeneutics.

Dr. Robert Jeffress is the senior pastor of the 11,000-

member First Baptist Church, Dallas, Texas, and an

adjunct professor at Dallas Theological Seminary. Dr.

Jeffress has made more than 1,500 guest appearances

on radio and television programs such as Fox News

Channel’s “Fox and Friends,” “The O’Reilly Factor,”

and “Cavuto on Business;” ABC’s “Good Morning

America;” CBS’s “This Morning;” HBO’s “Real Time

with Bill Maher;” CNN’s “Anderson Cooper 360;” and

MSNBC’s “Hardball with Chris Matthews.” Dr. Jeffress

hosts the daily Pathway to Victory radio program,

appears on a weekly television program that is

broadcast on 1,200 television stations throughout the

nation, and is the author of 21 books.

Dr. Byron R. Johnson is Baylor University’s

Distinguished Professor of the Social Sciences,

founding director of the Institute for Studies of

Religion, and director of the Program on Prosocial

Behavior. Dr. Johnson recently completed a series of

empirical studies for the Department of Justice on the

role of religion in prosocial youth behavior, and served

as a Presidential appointment to the Coordinating

Council for Juvenile Justice and Delinquency

Prevention. He has been project director / principal

investigator on many grants from private foundations

as well as federal agencies including the Department of

Justice, Department of Defense, U.S. Institute of

Peace, Department of Labor, and the National

Institutes of Health. Before joining the faculty at

Baylor University, Dr. Johnson also directed research

centers at Vanderbilt University and the University of

Pennsylvania. Dr. Johnson was also the 2013 Big

Brother of the Year for Big Brothers Big Sisters Texas

Lone Star.

Eric Metaxas is the New York Times #1 bestselling

author of Bonhoeffer and Amazing Grace: William

Wilberforce and the Heroic Campaign to End Slavery.

Along with his colleague John Stonestreet, Metaxas is

the voice of BreakPoint, a radio commentary that is

broadcast on 1,400 radio outlets with an audience of

eight million. Mr. Metaxas was also the keynote

speaker at the 2012 National Prayer Breakfast and is

the 2011 recipient of the Canterbury Medal awarded by

the Becket Fund for Religious Freedom. A graduate of

Yale University, Mr. Metaxas served as editor of the

Yale Record, the nation’s oldest college humor

magazine. He has also written essays, reviews, poetry,

and humor writing that has appeared in the Atlantic

Monthly, The New York Times, The Washington Post,

Christianity Today, National Review, and First Things.

Woody Allen has described Mr. Metaxas’ humor writing

as “quite funny.” Mr. Metaxas has also written

numerous children’s books and worked as a writer for

VeggieTales, a children’s animated series. Mr. Metaxas

has appeared on CNN, MSNBC, the Fox News

Channel, the History Channel, C-Span’s Book TV,

Glenn Beck, Huckabee, and NPR’s “Morning Edition”

and “Talk of the Nation.”

Dr. Albert Mohler, Jr., is President of The Southern

Baptist Theological Seminary, the flagship school of the

Southern Baptist Convention and one of the largest

sermainaries in the world. Dr. Mohler has been

recognized by publications such as Time and

Christianity Today as a leader among American

evangelicals. Time.com called Dr. Mohler the “reigning

intellectual of the evangelical movement in the U.S.”

Dr. Mohler is widely sought as a columnist and

commentator. He has been quoted in the nation’s

leading newspapers, including The New York Times,

The Wall Street Journal, USA Today, The Washington

Post, The Atlanta Journal/Constitution, and The

Dallas Morning News. He has also appeared on CNN’s

“Larry King Live,” NBC’s “Today Show” and “Dateline

NBC,” ABC’s “Good Morning America,” PBS’s “The

NewsHour with Jim Lehrer,” MSNBC’s “Scarborough

Country,” and Fox’s “The O’Reilly Factor.” Dr. Mohler

is also the Joseph Emerson Brown Professor of

Christian Theology at Southern Seminary. He has

authored several books and is the editor-in-chief of The

Southern Baptist Journal of Theology.

Dr. Charles F. Stanley is the senior pastor of First

Baptist Atlanta, founder and president of In Touch

Ministries, former president of the Southern Baptist

Convention, and a New York Times best-selling author.

Dr. Stanley provides Christ-centered, biblically-based

principles for everyday life to millions of people around

tlie world through his television and radio ministry.

John Stonestreet is a speaker and fellow of the

Chuck Colson Center for Christian Worldview and is

senior content advisor for Summit Ministries. Mr.

Stonestreet is co-host, with Eric Metaxas, of

BreakPoint, the Christian worldview radio program

founded by Chuck Colson. Mr. Stonestreet also appears

on The Point, a daily national radio feature on

worldview, apologetics, and cultural issues.

Dr. Owen Strachan is president of the Council on

Biblical Manhood and Womanhood, assistant professor

of Christian Theology and Church History at The

Southern Baptist Theological Seminary and Boyce

College, and director of the Carl F. H. Henry Institute

for Evangelical Engagement at SBTS. Dr. Strachan has

written seven books and will publish three more in

2015: The Colson Way, Reawakening the Evangelicai

Mind, and The Pastor as Public Theologian.

SUMMARY OF ARGUMENT

Unfortunately, in their zeal to advance and affirm

same-sex marriage, many state actors have ignored or

violated the very free speech principles that facilitated

free and open dialogue on this once-settled question.

As a cautionary tale of a road to potential tyranny, this

brief details many incidents — personal and systemic;

domestic and foreign — where religious dissenters from

same-sex marriage have been silenced by state actors

and thereby denied access to the marketplace of ideas.

A decision from this Court imposing same-sex

marriage nationwide would inevitably exacerbate these

conflicts, and inexorably result in additional violations

of free speech rights. And that — in addition to all of

the reasons provided by the respondents and their

other amici — is a powerful reason to affirm the Sixth

Circuit. In reaching its decision, this Court should

reaffirm that the Free Speech Clause of the First

Amendment protects religious dissenters who disagree

with state recognized same-sex marriage and to

reaffirm the importance of free debate and free inquiry

in this democratic Republic.

ARGUMENT

I. For over twenty centuries, the universal

Christian church has included followers of

Jesus Christ who spoke and preached on

controversial issues in ways that offended

powerful forces in society.

John the Baptist was imprisoned and subsequently

beheaded because he spoke against King Herod’s

marriage to Herodias. Matthew 14:1-12; Mark 6:14-29.

Stephen the Martyr was arrested by the Sanhedrin and

subsequently stoned to death when he refused to stop

preaching that Jesus of Nazareth was the Messiah.

Acts 6:8-7:60. The Apostle Paul and disciple Silas were

flogged and imprisoned because they preached

“customs unlawful for [] Romans to accept or practice.”

Acts 16:16-25. The Apostle Paul was threatened with

expulsion from Ephesus because he preached against

the Cult of Artemis, infuriating silversmiths who made

a “good income” selling Artemis shrines. Acts 19:23-34.

Tertullian refused to dilute his teachings against the

making and refurbishing of pagan idols — again, to the

great consternation of silversmiths, guilds, and

magistrates who profited from the civic religion of the

Roman Empire. Tertullian, De idolatria 28 (J.H.

Waszink and J.C.M. Van Winden eds., E.J. Brill 1987)

(ca. 197-208) (“Vivere ergo habes?” (“Must you live?”)).

In summary, for more than 2,000 years, individual

Christians have refused to keep quiet about their

sincere religious beliefs and have not flinched at

speaking “truth to power.”

Same-sex marriage is not an exception to this

historical rule. For two millennia, Christians have

based their definition of marriage on the words of Jesus

Christ, who incorporated by reference ancient words

from the Book of Genesis:

But from the beginning of creation, “God made

them male and female.” “Therefore a man shall

leave his father and mother and hold fast to his

wife, and the two shail become one flesh.” So

they are no longer two but one flesh.

Mark 10:6-8 (quoting Genesis 1:27). Consequently,

individual Christian ministers, teachers, and leaders

must continue to preach and speak aloud their

millennia-old and sincerely held religious view that

marriage is the sacred “one flesh” union of one man and

one woman. If their sermons and words clash with the

views of politically powerful groups or even

Government orthodoxy on same-sex marriage, they will

have no choice but to seek refuge in the First

Amendment generally, and the Free Speech Clause

specifically. A decision from this Court imposing same-

sex marriage on the States would dramatically

exacerbate this conflict between advocates of same-sex

marriage and Christian ministers, teachers, and

leaders, and would inevitably lead to untold violations

of the latter’s First Amendment free speech rights.

II. The freedom to speak according to

religious conscience is essential to the

dignity of each person and to the stability

of our self-governing Republic.

This Nation has long strived to give effect to John

Milton’s plea, “Give me the liberty to know, to utter,

and to argue freely according to conscience, above all

liberties.” J. Milton, Areopagitica (1644). “At the

founding, speech was open, comprehensive, and vital to

society’s definition of itself; there were no limits on the

sources of speech and knowledge.” Citizens United v.

FEC, 558 U.S. 310, 353 (2010). The freedom to speak

according to religious conscience serves at least two

First Amendment purposes: the first is personal; the

second is political.

First, as Justice Kennedy recenily noted, freedoms

of speech and religious conscience are foundational to

human dignity and self-definition:

In our constitutional tradition, freedom means

that all persons have the right to believe or

strive to believe in a divine creator and a divine

law. For those who choose this course, free

exercise is essential in preserving their own

dignity and in striving for a self-definition

shaped by their religious precepts. Free exercise

in this sense implicates more than just freedom

of belief. It means, too, the right to express those

beliefs and to establish one’s religious (or

nonreligious) self-definition in the political, civic,

and economic life of our larger community.

Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751,

2785 (2014) (Kennedy, J., concurring) (emphasis

added); see also Turner Broad. Sys. v. FCC, 512 U.S.

622, 641 (1994) (“At the heart of the First Amendment

lies the principle that each person should decide for

him or herself the ideas and beliefs deserving of

expression, consideration, and adherence. Our political

system and cultural life rest upon this ideal.”)

Second, the stability and survival of our self-

governing Republic requires constant vigilance by

conscientious citizens who will speak their minds, state

their viewpoints, and seek to persuade their fellow man

on controversial issues:

Speech is an essential mechanism of democracy,

for it is the means to hold officials accountable to

the people. “In a republic where the people are

sovereign, the ability of the citizenry to make

informed choices among candidates for office is

essential.” The right of citizens to inquire, to

hear, to speak, and to use information to reach

consensus is a precondition to enlightened self-

government and a necessary means to protect it.

Citizens United, 558 U.S. at 339 (quoting Buckley v.

Valeo, 424 U.S. 1, 14-15 (1976)) (internal citations

omitted); see also City of L.A. v. Alameda Books, 535

U.S. 425, 444 (2002) (Kennedy, J., concurring in the

judgment) (“Speech can produce tangible consequences:

It can change minds. It can prompt actions. These

primary effects signify the power and the necessity of

free speech.”); Denver Area Educ. Telcoms. Consortium

v. FCC, 518 U.S. 727, 782—83 (1996) (“In the realm of

speech and expression, the First Amendment envisions

the citizen shaping the government, not the reverse; it

removes ‘governmental restraints from the arena of

public discussion, putting the decision as to what views

shall be voiced largely into the hands of each of us, in

the hope that use of such freedom will ultimately

produce a more capable citizenry and more perfect

polity.”) (Kennedy, J., concurring in part, concurring in

judgment in part, and dissenting in part) (quoting

Cohen v. California, 403 U.S. 15, 24 (1971)). When a

religious dissenter is intimidated into silence, the

larger Republic is “deprived of an _ uninhibited

marketplace of ideas.” Virginia v. Hicks, 539 U.S. 113,

119 (2003).

Finally, freedoms of speech and religious conscience

are particularly important when there is a moral

dimension to the question pending in the public square.

“[S]peech makes a difference, as it must when acts of

lasting significance and profound moral consequence

are being contemplated.” Hill v. Colo., 530 U.S. 703,

790 (2000) (Kennedy, J., dissenting). By stating aloud

their moral objections to the existing order — a

peaceful yet powerful outlet for the marginalized —

religious dissenters stabilize our diverse and pluralistic

Republic. “In a free society protest serves to produce

stability, not to undermine it.” Hill, 530 U.S. at 787

(Kennedy, J., dissenting).

A decision from this Court imposing same-sex

marriage on the States would necessarily undermine

these settled norms, by placing federal Government

policy on a collision course with the strongly held

religious views of a large segment of the population —

a segment that for deeply felt religious reasons would

have no choice but to speak “truth to power.”

Ill. The Free Speech Clause is most needed

when the religious dissenter’s views are

controversial and inconvenient.

Believing their cause is righteous, political victors

are often tempted to silence their opponents using the

tools of Government. The First Amendment stands

athwart this potential tyranny. “Premised on mistrust

of governmental power, the First Amendment stands

against attempts to disfavor certain subjects or

viewpoints.” Citizens United, 558 U.S. at 340 (citing

United States v. Playboy Entertainment Group, Inc.,

529 U.S. 803, 813 (2000)); Turner Broad., 512 U.S. at

641 (1994) (“Government action that stifles speech on

account of its message, or that requires the utterance

? The vast majority of Abrahamic religious denominations —

Protestant, Catholic, Evangelical, Jewish, Mormon — continue to

define marriage as the sacred union of one man and one woman,

including but not limited to the Roman Catholic Church, Eastern

Orthodox Church, Presbyterian Church of America, Orthodox

Presbyterian Church, Lutheran Church — Missouri Synod,

Assemblies of God, Seventh-Day Adventist, Church of God in

Christ, American Baptist Churches in the U.S.A., Church of Jesus

Christ of Latter-day Saints, Rabbinical Council of America, and

the Southern Baptist Convention. These denominations alone

account for over 90 million Americans. Pew Research Center, U.S.

Religious Landscape Survey, (February 2008), http-//religions.

pewforum.org/pdf/report-religious-landscape-study-full. pdf.

of a particular message favored by the Government,

contravenes this essential right.”).

When the Government attempts to silence

controversial or inconvenient speech, the result is often

viewpoint discrimination, a straight-line violation of

the Free Speech Clause:

In the realm of private speech or expression,

government regulation may not favor one

speaker over another. Discrimination against

speech because of its message is presumed to be

unconstitutional.... When the government

targets not subject matter, but particular views

taken by speakers on a subject, the violation of

the First Amendment is all the more blatant.

Viewpoint discrimination is thus an egregious

form of content discrimination. The government

must abstain from regulating speech when the

specific motivating ideology or the opinion or

perspective of the speaker is the rationale for

the restriction.

Rosenberger v. Rector & Visitors of the Univ. of Va.,515

U.S. 819, 828—29 (1995) (citations omitted). Moreover,

even if the First Amendment ultimately vindicates a

religious dissenter’s right to speak, the Republic may

be harmed by the silence of those who were too afraid

to speak. Jd. at 835 (“The second, and corollary, danger

is to speech from the chilling of individual thought and

expression.”).

The Free Speech Clause was ratified to protect and

keep open the “uninhibited marketplace of ideas.”

Hicks, 539 U.S. at 119. It is most needed when the

religious dissenter’s views are controversial and

inconvenient to the Government. See Int'l Soc’y for

Krishna Consciousness v. Lee, 505 U.S. 672, 701 (1992)

(“The First Amendment is often inconvenient. But that

is beside the point. Inconvenience does not absolve the

government of its obligation to tolerate speech.”)

(Kennedy, J., concurring); Hill, 530 U.S. at 787 (“Laws

punishing speech which protests that lawfulness or

morality of the government’s own policy are the essence

of tyrannical power the First Amendment guards

against.”) (Kennedy, J., dissenting).

Should this Court impose same-sex marriage on the

States, those who have prevailed will likely attempt to

silence religious dissenters who continue to hold to

their millennia-old definition of marriage. That sad

subject is discussed next.

IV. Im the same-sex marriage debate, many

high-profile religious dissenters have been

actively silenced, while others are chilled

into silence — thereby harming the

marketplace of ideas.

Unfortunately, in their zeal to advance and affirm

same-sex marriage, many advocates have ignored or

violated the very free speech principles that facilitated

free and open dialogue on this once-settled question. In

a public statement published on Real Clear Politics,

fifty-eight prominent supporters of same-sex marriage

— including Andrew Sullivan, Ken Mehlman, Eugene

Volokh, Richard Epstein, and Stephen Calabresi —

denounced this “worrisome turn toward intolerance

and puritanism,” noting that “a liberal society demands

a culture that welcomes robust debate, vigorous

political advocacy, and a decent respect for differing

opinions.” However, such admonitions have been

largely ignored by politically powerful advocates of

same-sex marriage — and would be ignored even more

routinely if this Court imposes same-sex marriage on

the entire nation. Consequently, this Court should

affirm the Sixth Circuit and allow the democratic

dialogue to continue, thereby keeping open the

marketplace of ideas to persons of goodwill on both

sides.

A. State actors have silenced religious

dissenters who dared speak aloud their

views on marriage.

The following abstracts are representative, but not

exhaustive, of the religious dissenters who have

suffered harm for stating their sincere religious beliefs

on marriage — even without a ruling from this Court

imposing same-sex marriage on the States:

* A Public Statement, Freedom to Marry, Freedom to Dissent: Why

We Must Have Both, REAL CLEAR POLITICS (April 22, 2014),

http://www.realclearpolitics.com/articles/2014/04/22/

freedom_to_marry_freedom_to_dissent_why_we_must_have_bot

h_122376.html (“We strongly believe that opposition to same-sex

marriage is wrong, but the consequence of holding a wrong opinion

should not be the loss of a job.”)

United States Navy

Chaplain Wes Modder

Facts: 19-year Marine Corps and Navy veteran who

served (1) in Operations Desert Shield and Desert

Storm, (2) as Force Chaplain for Navy Special Warfare

Command assigned to support Navy SEALS in

DEVGRU. During private counseling sessions and in

response to questions from sailors, Chaplain Modder

stated his sincere religious view that marriage and

sexual relations are reserved to the sacred union of one

man and one woman, in accord with his endorsing

church, the Assemblies of God.

Government Response: Removed from promotion

list, detached for cause (the equivalent of being

terminated), and faces possible dishonorable discharge

from the United States Navy.*

* Liberty Institute, Navy Threatened to End Career of Chaplain,

https://www.libertyinstitute.org/modderfacts (March 18, 2015).

Atlanta Fire Chief

Kelvin Cochran

Facts: 30-year veteran firefighter appointed by (1) the

Mayor of Atlanta to serve as Fire Chief and

(2) President Obama to serve as the United States Fire

Administrator. Chief Cochran authored and published

a Christian devotional book that briefly stated his

sincere religious belief that marriage and sexual

relations are reserved to the sacred union of one man

and one woman.

Government Response: Suspended for 30 days and

terminated, despite evidence and testimony from

colleagues and employees that he never once

discriminated against any sexual minority.®

° Alliance Defending Freedom, Fire Chief Sues City of Atlanta,

http-//www.adfmedia.org/News/PRDetail/9520 (Feb. 18, 2015).

Georgia Department of Public Health

Dr. Eric Walsh

Facts: Served as Public Health Director of the City of

Pasadena, where he promoted AIDS outreach programs

and funding. Hired to serve as the District Health

Director for the State of Georgia Department of Public

Health. As a lay pastor in a Seventh Day Adventist

Church, Dr. Walsh preached sermons on his sincere

religious belief that marriage and sexual relations are

reserved to the sacred union of one man and one

woman.

Government Response: Terminated after State of

Georgia Department of Public Health officials reviewed

his sermons on marriage. State officials left a voice

message on Dr. Walsh’s answering machine, which

recorded their joking statement, “you’re out!”

® Liberty Institute, Distinguished Public Health Official Denied

Post, https://www.libertyinstitute.org/walsh (Sep. 23, 2014).

United States Air Force

Senior Master Sergeant Phillip Monk

Facts: 19-year veteran who served as First Sergeant at

Lackland Air Force Base. When he investigated and

determined that another instructor meant no harm in

stating his opposition to same-sex marriage, the new

Commanding Officer ordered Sergeant Monk to state

whether persons who oppose same-sex marriage are

violating laws against discrimination.

Government Response: When Sergeant Monk stated,

“I cannot answer that question the way you want,” the

Commanding Officer relieved him of his duties as First

Sergeant and reassigned him. When Sergeant Monk

filed a religious discrimination claim, the Air Force

alleged he had made a “false statement” and read him

his (Miranda) rights.’

' Liberty Institute, https-//libertyinstitute.org/pages/issues/in-the-

public-arena/liberty-institute-defends-airman-persecuted-for-his-

faith (October 12, 2013)

Eastern Michigan University

Student Julea Ward

‘ |

Facts: A devout Christian who enrolled in a graduate

counseling program at Eastern Michigan University

(“EMU”), a public university. During a practicum

course, Mrs. Ward was assigned to a student who

sought affirmation of his “same-sex relationship.” Mrs.

Ward sought permission to refer the student to another

counselor, citing her religious belief that sexual

relations are reserved to the sacred union of one man

and one woman.

Government Response: EMU expelled Ward from

the program after she refused to participate in a

remediation program designed to “correct” her views on

same-sex sexual conduct. *

* Alliance Defending Freedom, EMU Student Achieves Final

Victory After Court Rules “Tolerance is a Two-Way Street,”

http://www.alliancedefendingfreedom.org/News/PRDetail/141 (Dec.

10, 2012).

Missouri State University

Student Emily Brooker

Facts: A devout Christian who enrolled in the Schoo!

of Social Work at Missouri State University (“MSU”),

a public university. As a class assignment, Ms. Brooker

was required to write a letter to the Legislature

lobbying for same-sex adoption rights. She refused,

citing her sincere religious belief that marriage and

sexual relations are reserved to the sacred union of one

man and one woman, who serve as father and mother

to their children.

Government Response: MSU charged Ms. Brooker

with a “Level 3 Grievance,” the most severe offense

level available. The Ethics Committee interrogated her

for severai hours and she was later told that her degree

may be withheld.’

* Alliance Defending Freedom, MSU Quickly Settles Lawsuit,

http://www.adfmedia.org/News/PRDetail/1430 (Nov. 13, 2006).

The Houston Five

Facts: The City of Houston added “gender identity”

and “sexual orientation” to its non-discrimination

ordinance without clear exemptions for churches and

religious organizations. Prominent Houstonians

organized a recall petition, including several pastors.

The City invalidated the recall petition, giving rise to

litigation. The pastors were not parties to the suit.

Government Response: The City of Houston

subpoenaed five pastors, demanding production of their

sermons, speeches, and writings on “gender identity,”

“homosexuality,” and the mayor. In a tweet message,

Mayor Annise Parker said, “their sermons are fair

game.””°

http-//blog.alliancedefendingfreedom.org/2014/10/15/houston-we-

have-a-problem-and-a-constitution/ (October 15, 2014.)

B. Through memoranda, manuals, and

training materials, federal agencies

have imposed speech codes on their

employees, silencing or at least chilling

religious dissenters.

The above-referenced cases and controversies

represent the tip of iceberg. Below the waterline lies a

mountain of memoranda, manuals, and training

materials designed to enforce conformity of belief in the

federal government’s new sexual orthodoxy — or at

least chill into silence any religious dissenters.

In 2010, the Department of Agriculture Special

Emphasis Program listed the Defense of Marriage Act

as an example of “heterosexism” and avoidance of

LGBT “conversations” as an example of the pernicious

“Lavender Ceiling.”’ The Office of Personnel

Management’s diversity reference manuals’ require

employees to use the pronoun that correlates to a

transgendered person’s “perceived gender,” with no

safeguards for religious dissenters who may believe

“God made them male and female.” Mark 10:6 ; Genesis

1:27. For these federai agencies, sexual identity (“who

I am”) absolutely trumps religious identity (“who I am”).

' Bill Scaggs, “Including Sexual Orientation and Gender Identity

in Diversity,” U.S. Dep’t of Agriculture, 17 (Jan. 2010),

http://www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/nrcs141

p2_015573.pdf (last viewed Mar. 18, 2015).

U.S. Office of Personne) Management, “Guidance Regarding the

Employment of Transgender Individuals in the Federal

Workplace,” http://(www.opm.gov/policy-data-oversight/diversity-

and-inclusion/reference-materials/gender-identity-guidance/ (last

visited Mar. 18, 2015).

In 2013, the Department of Justice affinity group

DOJ Pride published a training guide listing “The

Seven Habits of Highly Effective Managers.” The

document is an unabashed speech code:

”

DO use inclusive words like “partner,

“significant other” or “spouse” rather than

gender-specific terms like “husband” and “wife.”

DO assume that LGBT employees and their

allies are listening to what you are saying

(whether you are in a meeting or around the

proverbial water cooler) and will read what

you've written (whether in a casual email or in

a formal document), and make sure the

language you use is inclusive and respectful.

DO talk in staff meetings about why diversity is

important to you as a manager, and make it

clear you define diversity to include both sexual

orientation and gender identity....

DO acknowledge important events in an LGBT

employee’s life — e.g., same-sex marriage.... —

in the same way you would for a heterosexual

employee....

DON’T judge or remain silent. Silence will be

interpreted as disapproval.”

'’ DOJ Pride, “LGBT Inclusion at Work: The 7 Habits of Highly

Effective Managers,” 1—2, http://www.lc.org/media/9980/images/

pr_doj_Igbt_directive_052113.pdf(last visited Mar. 18, 2015) (color

in original).

C. For a cautionary tale, this Court should

look to other English-speaking nations

that have legalized same-sex marriage.

The Anglosphere includes several nations with

similar legal traditions and historical commitments to

the Freedom of Speech. Two nations legalized same-

sex marriage and shortly thereafter witnessed a free

speech “parade of horribles.”

In 2005, Canada legalized same-sex marriage.

Shortly thereafter, Canadian officials sought to silence

religious dissenters who disagreed with the

Government’s new sexual orthodoxy:

¢ The Nova Scotia Barristers Society and the Law

Society of Upper Canada refused to accredit law

degrees awarded by Trinity Western University

because of its religious views on marriage and

sexuality."*

¢ The Catholic Diocese of Whitehorse was forced

to remove Roman Catholic Church teaching on

same-sex sexual conduct from its student

pastoral care manuals.”

** Jaan Lilles, Nova Scotia Barristers Society without Jurisdiction

to refuse Trinity Western University grads, LEXOLOGY (March 5,

2015), http://www litigate.com/nova-scotia-barristers-society-

without-jurisdiction-to-refuse-twu-grads; see also Trinity W. Univ.

v. NSBS, 2015 NSSC 25 (Can.).

‘* Patrick Craine, Bishop obeys gov't order to remove Catholic

school teaching on sinfulness of homosexual acts, LIFE SITE NEWS

(October 18, 2013), https://Awww.lifesitenews.com/news/bishop-

obeys-govt-order-to-remove-catholic-school-teaching-on-sinfulness-

of.

¢ The Canadian Broadcast Standards Council

adjudged that Word TV host Charles McVety

breached Equitable Portrayal Codes after he

stated on air that same-sex marriage was

“sinful,” criticized Toronto’s same-sex pride

parade, and dissented from Ontario’s same-sex

curriculum for public school children.”

¢ Teacher Chris Kempling was suspended and

charged with professional misconduct for writing

an editorial and penning private letters

expressing his views on “monogamous” sexual

relations and sexuality."’

In 2013, the Parliament of the United Kingdom

passed the Marriage (Same Sex Couples) Act, which

took effect on March 29, 2014. In a matter of months,

religious dissenters were targeted for failure to conform

to “British values”:

¢ British Government schools inspectors have

closed two Christian schools for teaching and

preaching against same-sex sexual conduct.”

** Mags Storey, CTS Drops McVety Over Controversial Remarks,

CHRISTIAN WEEK (MARCH 1, 2011), www.christian week.org/cts-

drops-mcvety-over-controversial-remarks/; see also CITS-TV re

Word.ca and Word TV, CBSC Decision 08/09-2142 & 09/10-0383+

(Decided June 22, 2010).

Kris Wells, Poisoning the School Environment, The Alberta

Teachers’ Association, www.teachers.ab.ca/Publications/ATA

Magazine/Volume2086/N umber203/Articles/Pages/Poisoningthe

SchoolEnvirenment.aspx (last viewed Mar. 18, 2015).

'® Hilary White, UK Gumt to Faith Schools: Promote Homosexuality

and Other Religions or Face Closure, LIFE SITE NEWS (February 2,

* United Kingdom’s Equality Commission reports

that most Christians are frightened to speak

their beliefs in the workplace.”

The freedom to speak according to religious

conscience is essential to the dignity of each person and

to the stability of our self-governing Republic. These

core First Amendment principles cannot peacefully

coexist alongside Government speech codes designed to

enforce a superficial and false conformity of belief.

Instead, the Free Speech Clause protects a noisy,

crowded, and vibrant marketplace of ideas, populated

with both supporters and opponents of same-sex

marriage.

A decision from this Court imposing same-sex

marriage on the States would “tilt the playing field”

even more decisively against persons of faith who will

continue to believe what they believe about marriage.

As the examples above show, politically powerful

advocates of same-sex marriage would likely use this

Court’s decision as a weapon to marginalize persons of

faith who will continue to adhere to their millennia-old

definition of marriage as the sacred union of one man

and one woman. That in turn would lead to countless

additional violations of the Free Speech Clause.

2015), https//www lifesitenews.com/news/uk-gvmt-to-faith-schools-

promote-homosexuality-and-other-religions-or-face.

Because they Fear Being Mocked or Treated like Bigots, say

Equality Chiefs, THE DAILY MAIL (March 11, 2015),

http://www.dailymail.co.uk/news/article-2990678/Christians-

scared-admit-beliefs-fear-mocked-treated-like-bigots-say-equality-

chiefs. html.

CONCLUSION

Millions of Christian ministers, teachers, and

leaders are compelled by faith and conscience to preach

and speak aloud their millennia-old and sincerely held

religious view that marriage is the sacred union of one

man and one woman. This Court should affirm the

decision below — in part to protect the First

Amendment rights of those who disagree with same-

sex marriage. In so doing, this Court should reaffirm

that the Free Speech Clause of the First Amendment

protects religious dissenters who disagree with same-

sex marriage and to reaffirm the importance of free

debate and free inquiry in this democratic Republic.

Respectfully submitted,

KELLY J. SHACKELFORD

Counsel of Record

JEFFREY C. MATEER

HIRAM S. SASSER, III

MATTHEW J. KACSMARYK

JUSTIN E. BUTTERFIELD

LIBERTY INSTITUTE

2001 W. Plano Parkway

Suite 1600

Plano, Texas 75075

Tel.: (972) 941-4444

Fax.: (972) 941-4457

kshackelford@libertyinstitute.org

Counsel for Amici Curiae

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.