SUMMARY OF THE ARGUMENT:
The Constitution broadly guarantees liberty of religion and conscience to citizens and organizations who participate in public life according to their moral, ethical, and religious convictions. It is not quarantined inside the walls of a church sanctuary. But anti- discrimination laws and policies are increasingly deployed as a weapon attacking traditional religious doctrines about the nature of marriage and sexuality. This discriminatory approach cuts against the very values anti-discrimination laws are enacted to promote—tolerance, diversity, inclusion, equality. Organizations like Catholic Social Services (“CSS”) are excluded from full participation in the public square while the government compels uniformity of thought on controversial social issues. The resulting inequality is alarming. This Court needs to reaffirm the nation’s commitment to religious liberty by reexamining its ruling in Emp’t Div. v. Smith, 494 U.S. 872 (1990). Religious neutrality is lacking where anti- discrimination laws protect categories defined by conduct that many faith traditions consider immoral. Smith falls short of protecting conscientious objectors and even religious organizations unless the political branches craft exemptions. Moreover, Smith departed from this Court’s longstanding Free Exercise jurisprudence and its time-honored role in protecting religious minorities from majoritarian oppression—the very purpose of the Bill of Rights.
