WFFC Publishes Legal White Paper on Preserving Religious Conscience of Christian Counselors

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. WFFC's latest White Paper focuses on Colorado's 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.”[6]

Divesting Kaley of any fundamental liberty protection, the lower court here recharacterized and misbranded expression of religious conscience as conduct and characterized the conversation censorship law as neutral and generally applicable—even though it exclusively burdened religious conscience and expression.  The 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.  The Supreme Court should, therefore, apply strict scrutiny to the Colorado law and reverse the decision of the lower court.

Download the WFFC White Paper here:

Chiles White Paper 052925.pdf

Download PDF • 592KB

[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).

[6] Turner Broad Sys., Inc. v. FCC, 512 U.S. 622, 641 (1994).

[7] Pet. App.212a-14a.  

[8] Pet. App.215a.

[9] Pet. App. 212a-14a.

[10] Pet App. 213a.

[11] Pet. App.214a. 

[12] Pet. App.207a, 214a-215a.

[13] Pet. App 207a.

[14] Colo. Rev Stat. § 12-245-202(3.5)(a).

[15] Id. § 12-245-202(3.5)(b)(I)-(II)).

[16] Id. §12-245-225.