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Almost immediately after the U.S. Supreme Court’s term begins this month, the court will hear a case that could give the ultra-conservative bloc a new opportunity to undermine church-state separation and misuse religious freedom as a license to discriminate.
On Oct. 7, the second day of the new term, the court will hear arguments in a case brought by Alliance Defending Freedom, the aggressive Christian Nationalist legal group behind many previous anti-LGBTQ+ and anti-abortion lawsuits heard by the Supreme Court. This time ADF represents a conservative Christian counselor who doesn’t want to follow Colorado’s law that protects LGBTQ+ children from harmful conversion “therapy” practices.
In 2019, Colorado passed a law that prevents mental health counselors from engaging in the dangerous, discredited practice of trying to pressure LGBTQ+ youth to change their sexual orientation and/or gender expression. Often rooted in fundamentalist religious beliefs, conversion practices have been shown to result in a high risk of depression, anxiety and suicidal thoughts and behavior.
Major medical and mental health associations, including the American Academy of Pediatrics, the American Medical Association and the American Psychological Association, reject conversion practices as harmful and ineffective. More than two dozen states, Washington, D.C., and more than 100 U.S. municipalities ban or restrict mental health providers from engaging in or referring patients to take part in conversion practices.
These laws exist to protect children from harm. But ADF is more worried about adults like their client, a conservative Christian mental health practitioner who believes “that people flourish when they live consistently with God’s design, including their biological sex.” ADF claims Colorado’s law interferes with their client’s freedom of speech. After lower courts ruled against her and ADF, they appealed to the U.S. Supreme Court, which agreed to hear the case.
AU brief in support of Colorado law
Americans United and allies filed a friend-of-the-court brief in support of Colorado’s law, explaining that it was not enacted with anti-religious animus and does not target religion. In fact, the brief was joined by nearly two dozen religious organizations and offers perspectives from several religious traditions, including Christian, Jewish, Hindu, Muslim and Unitarian Universalist, that support the law because it aligns with their beliefs to celebrate diversity and ensure all members of the community feel safe, included and supported.
The brief also shares the real-life experience of a religious man who suffered through conversion practices: “I am a proud Christian, father, son, husband, and gay man. I am also a survivor of conversion therapy and can personally attest to its harm and ineffectiveness. It is called therapy, but it is not. Conversion therapy is abuse.”
He explained that, 20 years ago, a counselor recommended he undergo conversion practices to “get rid of” his attraction to men. “Each week, I attended conversion therapy sessions, attempted to suppress my sexuality, failed, and my depression and shame worsened. I was on the brink of killing myself and wrestling with how to do it.”
He believes that, on a dark night, God intervened. “At that moment — knowing I was a child of God, created uniquely and exquisitely in His image — I chose to live. I accepted my true self and stopped conversion therapy. As a result, I am alive today and grateful for my strong, healthy relationships with my husband and three children.”
AU President and CEO Rachel Laser warned that this case is one of many ways Christian Nationalist groups like ADF are “manipulating the courts in order to turn religious freedom into a license to discriminate.
“Our country’s promise of church-state separation means that all Americans must be free to live as themselves and believe as they choose, as long as they do not harm others,” Laser said. “We urge the U.S. Supreme Court to affirm that our laws can protect vulnerable LGBTQ+ children from the proven harm of conversion therapy.”
Court analysts will be watching how the court balances this case, Chiles v. Salazar, with its 6-3 decision last term in U.S. v. Skrmetti, in which the conservative justices allowed Tennessee and other states to ban gender-affirming health care for transgender youth. Later this term the court will also hear challenges to laws passed in Idaho and West Virginia that ban transgender athletes from participating in youth sports.
Next on the Supreme Court’s calendar
In November, the court will hear another case that involves religious freedom, Landor v. Louisiana Department of Corrections. It involves Damon Landor, a Rastafarian whose knee-length dreadlocks were shaved by Louisiana prison guards in 2020.
Landor had been growing his hair for nearly 20 years in accordance with his faith. To protect his religious practice while he was incarcerated, he often carried a copy of a federal court decision that determined Rastafarian prisoners have religious freedom rights to keep their dreadlocks. For four months, prison guards left Landor’s hair alone. But a month before the end of his sentence, he was transferred to another prison where guards threw his copy of the court decision in the trash, handcuffed him to a chair and shaved his head.
State officials have since condemned what happened to Landor and insisted the Louisiana Department of Corrections and Public Safety has amended its policies to prevent such violations from happening again. However, when Landor sued, officials argued the law doesn’t allow him to hold prison officials personally liable for the violation and that he’s not entitled to monetary damages.
The 5th U.S. Circuit Court of Appeals agreed with state officials, but several judges on the court called for the U.S. Supreme Court to answer whether the Religious Land Use and Institutionalized Persons Act (RLUIPA) — the law that protects the religious freedom of incarcerated people — allows for monetary damages in the same way that the court has said the Religious Freedom Restoration Act (RFRA), RLUIPA’s sister statute, does.
In a unanimous 8-0 ruling in 2020, the Supreme Court ruled in Tanzin v. Tanvir that RFRA allows plaintiffs to seek monetary damages against federal employees. The case was brought by Muslim men who sued the federal agents who had added them to the no-fly list, allegedly in retaliation for their refusal to spy on other Muslims.
Americans United had filed a brief in support of the Muslim men in the Tanzin case, and filed a brief in support of Landor in September. Joined by several religious and civil-rights organizations, AU’s brief argues that the ability to sue for monetary damages is critical for prisoners seeking to defend their religious liberty. The brief also notes that the RLUIPA law contains important safeguards that protect against abuse of the law and the courts.
The court will hear Landor’s case on Nov. 10.
More cases in the Supreme Court pipeline
There are several other cases spearheaded by Christian Nationalist groups that the court has been asked to hear this year. They include:
- First Choice Women’s Resource Centers v. Platkin: ADF represents this faith-based, anti-abortion center in New Jersey that is challenging a subpoena for information about its operations as the state investigates claims the center misled people into thinking its services included referrals for abortion. The court has agreed to hear this case; arguments have not yet been scheduled.
- Cambridge Christian School v. Florida High School Athletic Association: First Liberty represents this private religious school that sued after the FHSAA declined the school’s request to use the public-address system at a state football championship game to lead players and fans in a pregame prayer. A federal appeals court ruled against the school. The Supreme Court has not yet agreed to hear the case.
- Davis v. Ermold: Liberty Counsel represents Kim Davis, the former Kentucky county clerk who refused to do her job and issue marriage licenses in the wake of the Supreme Court’s 2015 Obergefell decision that granted same-sex couples the right to marry nationwide. Courts have continuously ruled against Davis over the past decade. She now is asking the Supreme Court not only to grant her immunity from liability for her misdeeds as a government official because of her anti-LGBTQ+ religious beliefs, but also to overturn the Obergefell decision and end nationwide marriage equality. The court has not yet agreed to hear her case.
Stay tuned to Church & State and au.org for more coverage of these cases and other legal developments at the Supreme Court this year.