Fighting for Religious Freedom at SCOTUS

Supreme Court

Prof. William Wagner

WFFC Distinguished Chair for Faith & Freedom at SAU

Prof. Wagner and our amazing team of Justice Center appellate attorneys continue to fight for religious freedom in our nation’s highest Court. This week we filed a Supreme Court brief supporting a challenge to Philadelphia’s exclusion of Christian people from a foster care system.  The city excluded a faith-based organization because of its religious tenets.  


Here is a summary of the legal argument we made in our fight for religious freedom in support of the faith-based organization.

            The First Amendment to the United States Constitution prohibits governmental infringement on the free exercise of religion.  The writers of the First Amendment did not say “make no law prohibiting the free exercise of religion, unless you can find an unelected city official or federal judge to say the law is neutral and generally applicable.”

            In Employment Division v. Smith, the Supreme Court departed from its constitutional jurisprudence that recognized freedom of religion as a fundamental liberty interest.  Even though the government’s action in Smith substantially infringed on the free exercise of religious liberty, Smith required no justification by the government for its conduct.  To reach this radical result, Smith deemed neutral laws of general applicability excepted from the constitutional protection contra-expressed in the plain language of the Free Exercise Clause.  Smith did so despite a dearth of any supporting jurisprudence deeply rooted in our Nation’s history and traditions, or implicit in the concept of ordered liberty.

            Unless a State affirmatively acts to restore fundamental right status to the free exercise of religion, Smith, as a practical matter, denudes any meaningful constitutional protection for religious liberty as a limit on the exercise of the State’s power.  Ubiquitous special preferences such as sexual orientation and gender identity (hereinafter “SOGI”), imposed by state and local authorities, exacerbate the threat.  These government actions necessarily require Christian people to: 1) relinquish their religious identity recognized by the Supreme Court in Obergefell; and 2) surrender  their right to freely exercise their religious conscience protected by the First Amendment. 

Prof. Wagner and the Justice Center’s legal team calls on the Supreme Court to revisit and correct Smith.

Preserving Truth and defending liberty in this case was made possible by Christian lawyers donating over $20,000 in in-kind services.  Costs associated with printing and filing in a case like this average around $2000.

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About the Author

Prof. William Wagner
WFFC Distinguished Chair for Faith & Freedom at SAU
Professor Wagner holds the WFFC Distinguished Chair for Faith & Freedom at Spring Arbor University. He has a special interest in building and preserving environments where Christians may share the Good News of Jesus, free from persecution and oppression.

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