On Amicusing Religious Freedom

Over that last decade, the Church of Jesus Christ of Latter-day Saints has been party to at least 15 Supreme Court amicus briefs.[fn1] (How do I know? I searched Westlaw’s Supreme Court briefs database for “Latter-day Saints” and “Kirton McConkie.” Then I counted back to 2013. There may be more, but I think 15 gives me a pretty good sample.)[fn2]

Of these briefs, three are focused on opposing same-sex marriage. One addresses the definition of “sex” in Title IX. And at least twelve deal with questions of religious liberty (though there is some overlap—a number of the religious liberty briefs deal with religious liberty in the context of laws that limit discrimination against LGBTQ individuals.)

And what does the church say about religious liberty in its briefs? It paints religious liberty as absolutely critical. In its Carson brief, it explains that “the Religion Clauses protect the full range of religious freedom and not merely freedom from official discrimination.” In Groff, the church asserts that “Americans shouldn’t have to choose between their jobs and their faith.”

In 303 Creative, the church paints an almost dystopian vision if religious rights aren’t aggressively protected:

“Colorado’s public accommodations law bars them from posting a statement describing Lorie Smith’s traditional religious beliefs about marriage and forces them, contrary to those beliefs, to create custom websites with words promoting same-sex marriage. Their only escape is to stay out of the wedding industry, forcing Smith to choose between sacrificing her religion or her livelihood. That is an intolerable affront to the First Amendment and a betrayal of Obergefell. Without vigilant protection for free speech, all those with traditional religious understandings of marriage could face similar threats.”

In Little Sisters of the Poor, the church makes a case that the burdens of religious accommodation on third-parties doesn’t justify eliminating accommodation; rather, RFRA demands a balancing test that ultimately leans toward religious accommodation.

Skimming through this decade of amicus briefs, it becomes very obvious that the church places a strong emphasis on religious liberty and accommodation.

Reading through them makes me curious, though: how does the church feel about religious accommodation where it disagrees fundamentally with the religious practice seeking accommodation?

You may have read about some religious-liberty-based challenges to state abortion bans. For instance, in Indiana, the ACLU has sued on behalf of Hoosier Jews for Choice and five anonymous individuals. They argue that various religions, including Judaism, Islam, Unitarian Universalist, Episcopal and paganism, allow abortions in situations that would be banned in Indiana and, even more critically, some of these religious require abortion in situations that would be banned under Indiana law. So far, a judge has sided with the plaintiffs, agreeing that the law imposes burdens on the free exercise of religion in violation of the state RFRA.

I don’t have any idea how this will turn out, though it’s being appealed. Ultimately, though, it’s likely that it (or a similar Free Exercise or RFRA suit) will end up in front of the Supreme Court.

If that happens, will the LDS church file an amicus brief in favor of the people whose religious liberty is being infringed? To me, this is the test of how seriously we take our commitment to religious liberty. It’s easy enough to fight for your own right to religious liberty. But are we committed enough to fight for others’ religious liberty to do things that violate our religious tenets? That, it seems to me, is where the rubber meets the road.

A quick note: I’m not accuse the church of hypocrisy. That would be stupid—the current lawsuits aren’t anywhere near the point where the church would be filing an amicus brief. And I’m not interested here in comments accusing the church of hypocrisy. And honestly, this isn’t even the place to debate the church’s stance on abortion. For purposes of the comments, let’s assume that the church is sincere that it finds religious liberty critical, Let’s also assume that the Indiana litigants are sincere in their religious beliefs that abortion is permitted, and even required, in some circumstances.

[fn1] An “amicus brief” is a filing by a non-party to litigation. It’s generally, though not always, meant to advocate for one side or the other, often by providing the Court with a different perspective than the litigants raised.

[fn2] The briefs I found (in no particular order):

1. Little Sisters of the Poor
2. Zubik
3. Trinity Lutheran
4. Hollingsworth
5. Windsor (it’s on Westlaw, but I couldn’t find it easily on the public internet)
6. Fulton
7. Gloucester
8. Carson
9. Bostock
10. Bostock again (this one is for BYU)
11. Groff
12. 303 Creative
13. American Legion
14. Our Lady of Guadalupe School
15. Obergefell

Photo by Wendy Seltzer. CC BY 2.0