“Professor William Wagner just submitted a brief to the U.S. Supreme Court on behalf of legislators from 30 state legislatures in a landmark case concerning religious expression.”
Background
Kaley Chiles is a devoted Christian woman, licensed by the State of Colorado as a counselor.[1] Her conversations and guidance aid, support, and comfort those with whom she speaks.[2] 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.[3] 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.”[4] Kaley’s clients believe their faith and relationship with God provide the lens through which to see their identity and desires.[5] When struggling with matters involving human sexuality and their own body, therefore, they request Kaley’s conversation and guidance in counseling.[1] 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 clients specifically seek counseling from her Christian viewpoint.[2]
In response to such expression, Colorado enacted a Sexual Orientation Gender Identity (SOGI) censorship law, (misbranded as “conversation therapy”). On the one 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.”[3] On the other hand, the State expressly coerces counselors 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.”[4] Under the Colorado law, if the words Kaley speaks include expressions of biological truth grounded in her Christian identity and religious conscience, she faces draconian fines for each expression and the loss of her license.[5] 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. Kaley’s case is now before the U.S. Supreme Court.
Summary of our Argument to the Court
Sexual Orientation Gender Identity (SOGI) conversation censorship laws regulating professions (e.g., lawyers, physicians, pharmacists, counselors, etc) substantially interfere with a Christian person’s religious identity and expressive exercise of their religious conscience. Our Supreme Court brief focuses on Colorado’s SOGI conversation censorship law that regulates counselors licensed by the State. Under the law, the State of Colorado deliberately requires a Christian person 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.
The First Amendment to the United States Constitution prohibits governmental infringement on the freedom of religious expression.[1] 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.[2]
In Kennedy v. Bremerton School District, the U.S. Supreme Court confirmed that “…a [n]atural reading” of the First Amendment leads to the conclusion that “the Clauses have complementary purposes” where constitutional protections for religious speech and the free exercise of religion “work in tandem,” doubly protecting a person’s religious expression and exercise of religious conscience.[3] In such situations, Kennedy reaffirmed the application of strict scrutiny.[4] Here, the lower court in Kaley’s case failed to understand the complementary purposes of the clauses, thereby failing to read these clauses in tandem. The lower 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.[5] 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 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.”[1]
Divesting Kaley of any fundamental liberty protection, the lower 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 surrender their right to freely express and exercise their religious conscience protected by the First Amendment. In our brief, therefore, we ask the Supreme Court to apply strict scrutiny to the Colorado law and reverse the decision of the lower court.
Read the Full Brief Here
[1] Turner Broad Sys., Inc. v. FCC, 512 U.S. 622, 641 (1994).
[1] U.S. Const. amend. I.
[2] Kennedy v. Bremerton School District, 597 U.S. 507, 523, 532 (2022).
[3] Id.
[4] Id.
[5] Pet App. 72a; 81a (wrongly applying mere rational basis review).
[1] Pet. App.207a, 214a-215a.
[2] Pet. App 207a.
[3] Colo. Rev Stat. § 12-245-202(3.5)(a).
[4] Id. § 12-245-202(3.5)(b)(I)-(II)).
[5] Id. §12-245-225.
[1] Pet. App.212a-14a.
[2] Pet. App.215a.
[3] Pet. App. 212a-14a.
[4] Pet App. 213a.
[5] Pet. App.214a.
About the Author
