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The Church of Jesus Christ of Latter-day Saints (“the Church”) has attempted to play an active role in shaping religious freedom jurisprudence in the United States by submitting numerous amicus curiae (friend-of-the-court) briefs to the US Supreme Court. Amicus briefs are written by interested parties who are not formally part of a case to provide the court additional perspectives that might inform the decision in a case. The Church has submitted amicus briefs for nearly fifty years. In this study, we examined each amicus brief submitted by the Church to the US Supreme Court between 2008 and 2022, taking particular interest in how the 2015 legalization of same-sex marriage in Obergefell v. Hodges[1] influenced subsequent Church briefs. Our analysis of the sixteen amicus briefs focused on three guiding questions:

1. Which issues most interest the Church as evidenced by its submission of amicus briefs?
2. How has the Supreme Court’s legalization of same-sex marriage in 2015 (Obergefell v. Hodges) changed Church advocacy of religious freedom, if at all?
3. What moral, philosophical, policy, and legal arguments for religious freedom has the Church made in its amicus briefs?

In 2008 the Church engaged in advocacy efforts for Proposition 8, a California ballot proposal to define marriage between a man and a woman. Given Church interest in the marriage debate and associated religious freedom issues in the legislative sphere, we decided to investigate whether there was parallel advocacy for these issues in the judiciary.[2]

Based on our research, we found that the Church promotes a religious freedom framework focused on judicial standards that prioritize a right to institutional religious autonomy, protection from governmental discrimination against religious institutions in public funding contexts, a balancing of religious identity claims with other identity claims, and a presumption in favor of religious exemptions when the law burdens religious exercise.

Scope of research

The scope of our research spans from the Supreme Court’s 2007 term to cases on the docket for the 2021 term.[3] In the thirty years leading up to the 2007 term, the Church filed twelve amicus briefs on various topics relating to religious freedom. In the fourteen years following the 2007 term, the Church filed sixteen amicus briefs, doubling the number of briefs submitted and demonstrating a significant increase in this type of judicial advocacy. The Church filed no briefs between the 2007 and 2010 terms, but the Supreme Court also heard few religious freedom cases during that period. Thus, all sixteen of the briefs filed in our research study were filed between the 2011 term and the 2021 term. The Church has filed at least one brief during each Supreme Court term since 2011.

The increase in amicus brief submissions during the last decade is partly explainable by the increased number of Supreme Court cases with religious freedom implications. This rise also suggests that the Church is progressively more interested in religious freedom advocacy. Twelve of the cases in which the Church filed a brief came after the 2015 same-sex marriage decision of Obergefell v. Hodges though only a few of those cases discuss the implications of intersections between LGBTQ+ and religious freedom topics.[4]

Timeline of amicus briefs filed by the Church. Courtesy of the authors.

Number of amicus briefs

We reviewed the legal context in which the Church submitted an amicus brief by looking at the total number of amicus briefs submitted for each case. Cases pertaining to same-sex marriage, sexual orientation, or gender identity typically drew the greatest number of amicus briefs. For instance, Obergefell, which had the most amicus briefs of any case in which the Church submitted a brief, had 140 amicus brief submissions. Other cases with significant amicus brief submissions included Hollingsworth v. Perry,[5] in which same-sex couples sued California over its marriage laws; Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission,[6] in which a preparer of wedding cakes declined to prepare a cake for a same-sex marriage celebration on account of his religious beliefs; and Fulton v. Philadelphia,[7] in which a Catholic foster care agency had a policy not to certify same-sex couples for adoption due to its religious beliefs. Burwell v. Hobby Lobby[8] also generated a significant number of briefs and concerned the mandate to provide contraceptive coverage in employee health plans even if providing such coverage plans violate sincerely held religious beliefs.

Influence of the Church’s amicus briefs

We do not undertake in this paper to comprehensively analyze the Church’s success or influence in the Supreme Court’s decisions. We do note, however, that the Supreme Court’s judgment has aligned with the Church’s position in all cases where the laws in question were the Religion Clauses of the First Amendment or the Religious Freedom Restoration Act of 1993. But when the law in question was the Equal Protection Clause of the Fourteenth Amendment or the Civil Rights Act, the Supreme Court’s majority opinion differed from the Church’s advocacy.

Examining only where the Supreme Court and the Church agreed in judgment does not tell the whole story. An agreement in judgment does not necessarily mean an agreement in reasoning, and a disagreement in judgment may not mean a complete disagreement in reasoning. For instance, although Obergefell legalized same-sex marriage, which the Church had advocated against, the majority opinion said that “religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that . . . same-sex marriage should not be condoned.”[9] Here, the Church may still have accomplished part of its objectives in submitting an amicus brief because the Supreme Court, at least in dicta,[10] allowed room for some degree of religious freedom despite disagreeing with the Church in judgment. Conversely, the Church has sometimes advocated for reasoning or judicial standards that the Supreme Court declined to adopt, despite agreeing in judgment.

Amici volume. Courtesy of authors.

Wins and losses. Courtesy of authors.

Limitations on our analysis

Before commencing our analysis, it is important to note a few limitations. First, in some briefs, if not all, the Church may simply be making the best legal arguments to support a desired outcome. This means the Church may use arguments that are intended to appeal to multiple judges with varying interpretational approaches, making it unlikely that the Church’s use of any one interpretational approach in a brief is indicative of the Church’s preferred approach. Rather, the best indicators of the Church’s view are likely the judgment and judicial tests or standards for which the Church advocates.

It is also worth noting that the amicus briefs are not drafted by the Church’s in-house legal counsel or by Church leadership. In some cases, the Church contracts with outside counsel to draft its briefs, and in other cases the Church signs onto a brief drafted by counsel from other amici, making editorial control variable.

Furthermore, the Church selectively uses cases that are good vehicles to accomplish certain objectives. The Church may be less interested in the outcome of a particular case and perhaps more interested in shaping the law at stake or in making sure that some consideration is included in the Supreme Court’s reasoning. Thus, noting that the Church submitted an amicus brief in a case does not necessarily mean that the Church was particularly interested in the issue in the case; often, the brief focuses on a narrower legal issue or on a test for resolving similar controversies in a particular area of law. For example, in its brief in Carson v. Makin,[11] the Church focused on the standard for religious discrimination under the Religion Clauses rather than the school choice question at stake in the case.[12] In other cases, the Church directly addresses the specific questions of the case; for example, in Hobby Lobby the Church directly addressed the availability of religious exemptions to for-profit corporations.[13] Thus, the Church’s purpose in submitting an amicus brief varies from case to case.

Which Issues Most Interest the Church?

Key topics of interest

Based on the briefs that the Church filed from 2011 to 2021, there are four primary topics of interest: religious autonomy, religious exemptions, religion in the public square, and same-sex marriage/LGBTQ+ matters. These topics are interrelated, and many cases touch on more than one of these interests.

Sources of law. Courtesy of authors.

Sources of law

The Church has attempted to influence the interpretation of several sources of law through its amicus briefs. In terms of constitutional law, the Church has demonstrated an interest in the interpretation of the Free Exercise Clause and the Establishment Clause (often referred to together as the Religion Clauses) of the First Amendment[14] and the Equal Protection Clause of the Fourteenth Amendment.[15] The Church has also attempted to influence the interpretation of statutory law, including the Civil Rights Act of 1964 and the Religious Freedom Restoration Act of 1993. These attempts to influence the court seem to indicate that the Church is interested not only in impacting traditional religious freedom laws but also in creating space for religious freedom accommodations in the broader civil rights schema.

Cases in which the Church has not submitted an amicus brief

The Church has not submitted an amicus brief in every religious freedom case, though it has submitted briefs in most of them. The lists below reflect religious freedom cases and cases pertaining to Church doctrine that the Supreme Court has heard in the time span of our study but for which the Church did not submit an amicus brief.

Religious freedom questions

• Damages under the Religious Freedom Restoration Act[16]
• Praying before government meetings[17]
• Religious rights of prisoners[18]
• Religious display questions[19]
• Official recognition of religious organizations on college campuses[20]

Doctrine-related questions

• Abortion[21]
• Speech outside abortion clinics[22]

Interestingly, the Church has largely declined to advocate in cases pertaining to matters of abortion, though it has taken a direct stance on advocating for traditional marriage in several amicus briefs. Rather than advocate in abortion cases, the Church has advocated in other cases for believers and institutions to have the religious freedom to act in accordance with their religious beliefs, including beliefs about life.[23]

Amicus brief partners

The Church has never submitted an amicus brief on its own. When combining all sixteen of the briefs in our study, the Church partnered with fifty-seven organizations, which include Christian, Jewish, and Islamic groups. This partnering is reflected in the amicus briefs’ interfaith approach to religious freedom that seeks protection of all faiths. The list below contains some of the names of organizations that have joined with the Church in filing amicus briefs and the number of briefs in which they joined out of the sixteen amicus briefs in our study.

Partners. Courtesy of authors.

1. Ethics & Religious Liberty Commission of the Southern Baptist Convention (10/16)
2. Lutheran Church–Missouri Synod (10/16)
3. National Association of Evangelicals (8/16)
4. Christian Legal Society (7/16)
5. Union of Orthodox Jewish Congregations of America (4/16)
6. U.S. Conference of Catholic Bishops (4/16)
7. Church of God in Christ (3/16)
8. General Conference of Seventh-day Adventists (3/16)
9. Orthodox Church in America (3/16)

List of cases for which the Church filed an amicus brief[24]

1. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171 (2012).
2. United States v. Windsor, 570 U.S. 744 (2013).
3. Hollingsworth v. Perry,570 U.S. 693 (2013).
4. Burwell v. Hobby Lobby Stores, Inc.,573 U.S. 682 (2014).
5. Obergefell v. Hodges,576 U.S. 644 (2015).
6. Zubik v. Burwell,578 U.S. 403 (2016).
7. Gloucester Cnty. Sch. Bd. v. G. G. ex rel. Grimm, 137 S. Ct. 1239 (2017).
8. Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017).
9. Masterpiece Cakeshop, Ltd. v. Colorado C.R. Comm’n, 138 S. Ct. 1719 (2018).
10. Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067 (2019).
11. Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020).
12. Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049 (2020).
13. Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367 (2020).
14. Espinoza v. Montana Dep’t of Revenue, 140 S. Ct. 2246 (2020).
15. Fulton v. Philadelphia, 141 S. Ct. 1868 (2021).
16. Carson ex rel O.C. v. Makin, 142 S. Ct. 1987 (2022).

How Did Legalization of Same-Sex Marriage Affect the Church’s Religious Freedom Advocacy in LGBTQ+ cases?

Effects of Obergefell on the Church’s religious freedom advocacy

The core legal question in Obergefell is the definition of marriage,[25] yet the amicus brief submitted by the Church in that case explores larger questions regarding the tension between sexual identity claims and religious claims. The Supreme Court majority opinion and dissenting opinions in Obergefell reveal varied understandings of the religious freedom implications of legalizing same-sex marriage. Writing for the Obergefell majority, Justice Kennedy wrote that “religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.”[26] Writing in dissent, Chief Justice Roberts expressed a very different perspective: “Today’s decision [in Obergefell] creates serious questions about religious liberty. . . . The majority’s decision imposing same-sex marriage cannot, of course, create any such [religious] accommodations. The majority graciously suggests that religious believers may continue to ‘advocate’ and ‘teach’ their views of marriage. The First Amendment guarantees, however, the freedom to ‘e������������’ religion. Ominously, that is not a word the majority uses.”[27]

Justices Thomas and Alito also wrote dissents expressing similar skepticism about the status of religious freedom after the decision.[28] This split opinion can give the impression of a zero-sum game where one side “wins” and the other side “loses”—an example of the binary perception that religious freedom issues often assume when settled by the Supreme Court.

The Church has long advocated for traditional marriage defined as “a union between a man and a woman that is inherently oriented toward procreation and childrearing and in which society has a profound stake.”[29] This contrasts with the non–traditional view of marriage, viewed by the Church as “primarily a vehicle for affirming and supporting intimate adult relationship choices, a vision that is not inherently oriented toward uniting the sexes for the bearing and rearing of children.”[30] In both Windsor[31] and Hollingsworth,[32] the Church emphasized a statement from Professor Matthew B. O’Brien: “Traditional marriages rests on the policy judgment that ‘[a] family headed by two married parents who are the biological mother and father of their children is the optimal arrangement for maintaining a socially stable fertility rate, rearing children, and inculcating in them the two moral powers requisite for politically liberal citizenship.”’[33] The Church has argued that a clear stance on the importance of marriage between a man and a woman does not invalidate or disrespect other perspectives. The Church has emphasized that “both visions [of marriage] are held honestly and sincerely by well-informed, rational people of good will.”[34] This statement shows an attitude of respect toward those of differing views about marriage and demonstrates the Church’s broader pluralistic position—that multiple perspectives can exist peacefully in the same society.

Pre-Obergefell, the Church emphasized the importance of traditional marriage, primarily using moral arguments such as in the opening line of its Windsor brief: “Our theological perspectives, though often differing, converge to support the proposition that the traditional, opposite-sex definition of marriage in the civil law is not only constitutional but essential to the welfare of families, children, and society”.[35] After Obergefell, the Church reframed its original moral arguments in the context of identity claims, arguing that both religious identity and sexual orientation identity claims are important. For example, in Masterpiece, the Church wrote, “The very arguments that underlie protection of same-sex marriage also support strong protection for religious liberty.”[36]

The Church has also emphasized that all non–essential regulation from government should be avoided: “Both religious believers and same-sex couples argue that a core aspect of their identity is so fundamental that it should be left to each individual, free of all nonessential regulation.”[37] Reframing the issue from a religious claim to a religious identity claim demonstrates the Church’s post-Obergefell interest in balancing the interests of religious identity with sexual orientation identity.

Lastly, the Church’s advocacy pre- and post-Obergefell has focused on challenging perceptions that religious claims are driven by animus. Because a finding of animus toward LGBTQ+ persons could have led—in Obergefell, for example—to the nullification of state marriage laws, [38] the Church argued that maintaining beliefs about heterosexual marriage does not constitute a legal showing of animus.[39] The Church reiterated that its viewsof marriage do not constitute bigotry toward homosexual persons: “We emphatically reject the accusation that we and millions of our fellow believers seek to protect traditional marriage out of ‘ancient religious bigotry against gay persons.’ That slander aims to intimidate and suppress public conversation on a complex issue by equating disagreement with hatred. Laws reserving marriage for the union of a man and a woman were the universal rule in this country until a decade ago. They are not tokens of ignorance and bigotry now.”[40]

The Church has emphasized that its advocacy is not driven by animus and that the Church itself has, in the past, been the subject of religious bigotry because of its beliefs.[41]

What Moral, Philosophical, Policy, and Legal Arguments Has the Church Made?

Religious autonomy

The Church has consistently argued for institutional religious autonomy, meaning the right to prevent the government from intruding into the internal affairs of religious institutions.[42] The Church has advocated for religious autonomy in two cases that pertain to the legal doctrine called the ministerial exception.[43] Grounded in the Religion Clauses, the ministerial exception as it was eventually defined by the Supreme Court in Hosanna-Tabor[44] is an affirmative defense that “precludes application of [employment discrimination] legislation to claims concerning the employment relationship between a religious institution and its ministers.”[45]

The Church has advocated for the ministerial exception in absolute terms, arguing that “the protection of the First Amendment is unqualified and absolute.”[46] It has further added, “The church has the right to select its ministers, and when the dispute is between the church and the church member who seeks to serve in ministry, there is no occasion—no justification whatsoever—for the state to become involved. Church members who seek to serve the church in the ministry may invoke whatever procedure is provided by the church to challenge their exclusion. But they cannot seek redress in civil courts.”[47]

The Church also argued that the absolute bar on government adjudication of religious personnel decisions respects religious doctrinal principles, avoids the dangers of judges attempting to judge matters of faith, deters costly litigation when a church needs to make an important personnel decision, and prevents the bias that unpopular churches may face from civil courts.[48]

In addition, the Church has argued that the ministerial exception should not only extend to “ordained clergy” but to all who perform religious functions within a religion.[49] In its brief in Our Lady of Guadalupe, the Church provided extensive examples of the ways that its own ecclesiastical and employment structure reflect the need for a broad reading of the term “minister” to “protect the broad diversity of religious beliefs, practices and internal governance that characterize American religions.”[50]

The Supreme Court has largely aligned with the Church in its opinions on the ministerial exception. In a 9-0 opinion in Hosanna-Tabor, the court affirmed that the ministerial exception exists and that it “bar[s] the government from interfering with the decision of a religious group to fire one of its ministers.”[51] In a subsequent 7-2 opinion in Our Lady of Guadalupe, it took a broad view of the term minister, saying it includes those who “perform vital religious duties” and that ultimately a “religious institution’s explanation of the role of such employees in the life of the religion in question is important” to determining who is a “minister.”[52]

Religious exemptions

The Church has also advocated for the right of religious individuals and institutions to receive religious exemptions to laws or regulations that burden their religious beliefs. Because the Supreme Court held that the Religious Freedom Restoration Act could not apply to state laws,[53] the availability of religious exemptions to state or local government laws are typically argued under the Free Exercise Clause of the First Amendment,[54] which has been incorporated against (meaning held applicable to) the states.[55] The availability of religious exemptions to federal laws or regulations may be argued under either the Religious Freedom Restoration Act (RFRA) or the Free Exercise Clause, but nearly all exemptions to federal laws are argued under RFRA because it puts the burden on the government to show why a religious exemption cannot be granted.[56]

In cases about the scope of RFRA, the Church has argued that exemptions under RFRA should extend to for-profit corporations.[57] The Supreme Court aligned with the Church’s position in Hobby Burwell v. Lobby.[58]

In addition, the Church has argued that the possibility that “third-party harm” may be caused by granting a religious exemption under RFRA should not categorically bar the receipt of a religious exemption.[59] Instead, the Church argues that if a third party will be affected by a religious exemption that harm should be addressed through RFRA’s least restrictive means test, which asks whether the objective the government is seeking to advance can be accomplished in a less burdensome way.[60] In essence, the Church argues that RFRA analysis requires the government to determine if there is another way to mitigate the alleged harm by providing a religious exemption, and, if so, to pursue the alternate path instead of barring a religious exemption.

In cases pertaining to religious exemptions under the Free Exercise Clause, the Church has argued that Employment Division v. Smith should be overturned.[61] Smith held that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’”[62] In effect, Smith created a presumption against religious exemptions. The Church argued that Smith has “injured religious people and institutions”[63] and “is thoroughly unworkable” as a standard.[64] Instead of the Smith standard, the Church has proposed reverting to the strict scrutiny test in Sherbert v. Verner,[65] which placed the burden on the government to show that its religious limitations were necessary to achieve a compelling state interest through narrowly tailored means.[66]

Religion in the public square: separation of church and state

The Church has taken a significant interest in ensuring religion can flourish in the public square. For instance, the Church has argued that the Establishment Clause should not necessarily preclude public religious displays or monuments.[67] It has also argued that religious institutions should not face governmental discrimination when applying for public funding.[68]

The Church has often proposed judicial tests in its amicus briefs to interpret religious freedom law. One such test outlined in the Church’s brief for American Legion v. American Humanist Association[69] argues that the Establishment Clause should be understood by “looking to historical practices and understandings at or near the founding period.”[70] The Church argues that the Framers’ understanding of the Establishment Clause not only protects against an establishment of religion but also affirmatively “protect[s] both individual and institutional religious freedom.”[71] This “Founders’ Test” is critical to protecting religious freedom in the context of the Establishment Clause. The Church says that “establishment of religion” was originally understood as

1. A declaration in law that a particular church or religion is the official or preferred faith;
2. Government intrusion into church doctrine, teaching, governance, or personnel;
3. Compulsory attendance at and participation in the established church;
4. Prohibition on membership or worship in “dissenting” churches, or other conduct characteristic of believers in such communities;
5. Restriction of political participation to members of the established church;
6. Public financial support for the established church; or
7. Authorization for only the established church to perform governmental functions.[72]

The Church argues that understanding the threat of religious establishment at the time of the founding is relevant to protecting religious freedom in the public square because it cautions against an extreme separation of church and state that would undermine religious freedom.[73]

The “Founders’ Test,” the Church argues, provides a constructive legal mechanism where the Lemon v. Kurtzman[74] test fails. The Church has argued that causing offense does not equal coercion, and the Lemon test, which has sometimes been applied in a way that focuses on coercion, has long been criticized for its inability to protect the religious freedom of individuals and institutions.[75] Ultimately the Church has warned that misinterpretation of the Establishment Clause as “strict separationism—the idea that there must be strict separation between the state and religion as well as the church itself—[is] responsible for severely undermining religious freedom.”[76]

The Church has also taken a strong interest in advocating that the government should not be able to discriminate against religious institutions when providing public benefits, such as school funding. In its briefs in Trinity Lutheran[77] and Espinoza,[78] the Church argued that there should be a balancing test for religious discrimination that tilts in favor of religious organizations.[79] As the Church articulated it, “discrimination based on religion is inherently suspect and can be upheld only if necessary to serve a compelling governmental interest.”[80]

In its more recent brief, Carson v. Makin, the Church argued for a stronger standard—a per se ban on religious discrimination.[81] The Church’s brief argued, “The First Amendment prohibits laws that discriminate on the basis of religious belief, practice, or affiliation. Such a law is void. Like the proscription on religious tests for public office and the ministerial exception, this per se rule reflects the combined force of the Religion Clauses.”[82] It noted that any exception could only be justified “when mandated by the Establishment Clause.” [83]

Same-sex marriage and LGBTQ+ topics

The Church has taken significant interest in cases where religious freedom rights intersect with LGBTQ+ rights. It has argued that religious freedom protects the status and conduct of a religious believer, meaning that believers should not be discriminated against for being religious, and their religious conduct should be regulated as little as possible by the government. Since Obergefell, the Church has likewise argued against status or conduct discrimination toward same-sex couples: “[B]oth religious believers and same-sex couples argue that their conduct cannot be separated from their claim of protected legal rights so as to give government carte blanche to regulate the conduct.”[84] The Church also continuously argues that competing identity claims, such as those between religious persons and LGBTQ+ persons, can lead to “years of wrenching litigation” when courts are the sole resolvers of the conflict.[85] In tandem with its judicial advocacy, the Church has helped to protect LGBTQ+ persons and religious freedom simultaneously through legislative efforts such as the Fairness for All Act,[86] even while maintaining a traditional view of marriage.[87] The Church has argued that social controversies surrounding identity claims are inherently complex, and when resolved by litigation, rather than collaborative efforts, either side may feel marginalized. “Believers cannot fail to act on God’s will, and it is no more reasonable for the state to demand that they do so than for the state to demand celibacy of all gays and lesbians. Both religious believers and same-sex couples feel compelled to act on those things constitutive of their identity.”[88]

Additionally, the Church has emphasized that religious freedom has enabled families to develop a reliance interest in the institution of marriage to support “a child’s right to know and be reared by his mother and father” and furnish “the status and identity of ‘husband’ or ‘wife.’”[89] Because people of faith have relied on the legal definition of marriage, the Church argues that unnecessary scrutiny of a preference for heterosexual marriage may threaten the religious freedom to sincerely hold such beliefs.[90] The Church has argued that reliance interests in marriage include “not only public goods, seen from the perspective of society, but individual goods for which men and women have made life-altering investments of money, time, and the subsuming of selfish desires.”[91] The Church acknowledges this reliance can be abstract, noting that “these reliance interests may be subtle and difficult to describe, but they are very real and run very deep. How the law defines and regulates marital and parental relationships powerfully reinforces or diminishes existing personal and social interests, including identity interests.”[92]

The Church continues to defend its definition of traditional marriage as supporting intergenerational benefits centered on the child and on the family unit versus a definition grounded in the affirmation of adult relationships. The Church demonstrated this contrast of marriage definitions in its Hollingsworth brief: “One [definition] is inherently intergenerational; the other, primarily interpersonal. One is focused on children’s and society’s needs; the other, on the desires of the couple.”[93] The Church emphasizes that cases involving tensions between religious freedom and LGBTQ+ claims do not have to be a zero-sum game; rather, these cases should seek resolution that minimizes government regulation for both sides.[94]

In addition, the Church’s briefs have often noted concern for mistreatment of members of the LGBTQ+ community. For example, in Hollingsworth, the Church’s amicus brief said, “Whatever the failings (past or present) of individuals within our faith communities, we are united in condemning hatred and mistreatment of homosexuals. We believe God calls us to love gays and lesbians, even as we steadfastly defend our belief and judgment that traditional marriage is best for families and society.”[95] The Church has also argued that in many ways, same-sex couples and religious believers share many common challenges, and government regulation of both religious and secular beliefs should be minimized. As the Church’s brief in Masterpiece articulated, “The classically American solution to the problem of deep differences is to protect the liberty of both sides. There is no reason to let either side oppress the other.”[96]

Conclusion

While recognizing the limitations on our analysis noted previously,[97] we can conclude that every brief that the Church has submitted ties back to religious freedom, directly or indirectly. The Church has not engaged in any judicial advocacy as amici outside of cases pertaining to religious freedom. Furthermore, it has never submitted a brief alone; its briefs are always written in conjunction with other religious organizations.

The Church seems to be interested in influencing the Supreme Court’slegal standards that have religious freedom implications. For some issues, such as institutional church autonomy in hiring persons central to the faith and religious discrimination by the government in public programs, the Church has asked for categorical protections, arguing that governmental interference should never be permitted.[98] In other cases, especially in relation to LGBTQ+ issues, the Church has argued for balancing tests to work out competing identity claims.[99] The Church has also argued in favor of extending religious exemptions.[100] And finally, the Church has argued for an original understanding of the Framers’ perspectives on the Establishment Clause to argue that the Establishment Clause did not intend to cut religion out of the public square.

Notes

[1] Obergefell v. Hodges, 576 U.S. 644 (2015).

[2] See also “Explaining Religious Freedom and LGBT Rights,” Newsroom of The Church of Jesus Christ of Latter-day Saints, March 12, 2015, https://newsroom.churchofjesuschrist.org/article/explaining-religious-freedom-and-lgbt-rights#_Answers_to_Basic.

[3] Supreme Court terms run from October to June of the following year (thus, the 2007 term extends from October 2007 to June 2008). The year associated with a Supreme Court case in a citation is based on the year that the Court issued an opinion; thus, the year associated with a case does not necessarily reflect the term in which the case was decided. The Court and Its Procedures, Supreme Court of the United States, https://www.supremecourt.gov/about/procedures.aspx. In our study, consistent with the legal profession, we refer to cases based on the year they were decided, so the year that the amicus brief was submitted or the year in which the court heard oral argument of the case may be the year before the case decision was released.

[4] The Church refers to persons identifying as homosexual or other nontraditional sexual identities as the LGBTQ+ community.

[5] Hollingsworth v. Perry, 570 U.S. 693 (2013).

[6] Masterpiece Cakeshop, Ltd. v. Colorado C.R. Comm’n, 138 S. Ct. 1719 (2018).

[7] Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021).

[8] Burwell v. Hobby Lobby Stores, Inc., 573U.S. 682 (2014).

[9] Obergefell v. Hodges, 576 U.S. 644, 679. See also Brief for Major Religious Organizations as Amici Curiae Supporting Respondents, at 679, Obergefell v. Hodges, 576 U.S. 644 (2015), Nos. 14-556, 14-562, 14-571, 14-574.

[10] The judgment of the Supreme Court is considered binding on lower courts addressing the same legal issues. However, the court’s rationale for its opinion (sometimes referred to by the Latin term “dicta”) is not legally binding but often has persuasive value in guiding lower courts with similar, though technically distinct, legal issues.

[11] Carson ex rel O.C. v. Makin, 142 S. Ct. 1987 (2022).

[12] Brief for The Church of Jesus Christ of Latter-day Saints et al. as Amici Curiae Supporting Petitioners, Carson ex rel O.C. v. Makin, 142 S. Ct. 1987 (2022), No. 20-1088.

[13] Brief for Christian Legal Society et al. as Amici Curiae Supporting Respondents, Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014) (Nos. 13-354 & 13-356).

[14] “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” US Constitution Amendment I.

[15] “No State shall make or enforce any law which shall . . . deny to any person within its jurisdiction the equal protection of the laws.” US Constitution amendment XIV, § 1.

[16] Tanzin v. Tanvir, 141 S. Ct. 486 (2020).

[17] Town of Greece v. Galloway, 134 S. Ct. 1811 (2014).

[18] Holt v. Hobbs, 574 U.S. 352 (2015); Ramirez v. Collier, 142 S. Ct. 1264 (2022).

[19] Shurtleff v. City of Boston, 142 S. Ct. 1583 (2022).

[20] Christian Legal Soc. v. Martinez, 561 U.S. 661 (2010)

[21] Dobbs v. Jackson Women’s Health, 142 S. Ct. 2228 (2022); June Med. Servs. L.L.C.v. Russo, 140 S. Ct. 2103 (2020); Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016).

[22] McCullen v. Coakley, 134 S. Ct. 2518 (2014).

[23] See, e.g., Little Sisters of the Poor Brief for the United States Conference of Catholic Bishops et al. as Amici Curiae Supporting Petitioners at 21, Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367 (2020), Nos. 19-431 & 19-454.

[24] Amicus briefs can be filed at the “petition stage,” the stage when a party to the case asks the Supreme Court to hear the case by granting a writ of certiorari. Amicus briefs can also be filed at the “merits stage,” which is the stage when the Court has agreed to hear the case and is reviewing the case on its merits to make a legal determination. Our study focused only on briefs the Church filed at the merits stage.

[25] Obergefell v. Hodges, 576 U.S. 644, 562 (2015). “The petitioners in these cases seek to find that [constitutional] liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.”

[26] Obergefell v. Hodges at 67.

[27] Obergefell v. Hodges, 576 U.S. 644, 711 (2015), (internal citations omitted).

[28]Obergefell v. Hodges at 733.

[29] Brief for the National Association of Evangelicals et al. as Amici Curiae Addressing the Merits at 2, United States v. Windsor, 570 U.S. 744 (2013), No. 12-307.

[30] Brief for the National Association of Evangelicals et al. as Amici Curiae Addressing the Merits at 2, United States v. Windsor, 570 U.S. 744 (2013), No. 12-307.

[31] United States v. Windsor, 570 U.S. 744 (2013).

[32] Hollingsworth v. Perry, 570 U.S. 693 (2013).

[33] Brief for the National Association of Evangelicals et al. as Amici Curiae Supporting Petitioners at 9, Hollingsworth v. Perry, 570 U.S. 744 (2013) (No. 12-144) (quoting Matthew B. O’Brien, Why Liberal Neutrality Prohibits Same-Sex Marriage: Rawls, Political Liberalism, and the Family, 1 British Journal of American Legal Studies 411, 462 (2012).

[34] Brief for the National Association of Evangelicals et al. as Amici Curiae Addressing the Merits at 2, United States v. Windsor, 570 U.S. 744 (2013) (No. 12-307).

[35] Brief for the National Association of Evangelicals et al. as Amici Curiae Addressing the Merits at 2, United States v. Windsor, 570 U.S. 744 at 1.

[36] Brief for Christian Legal Society et al. as Amici Curiae Supporting Petitioners at 2, Masterpiece Cakeshop, Ltd. v. Colorado C.R. Comm’n, 138 S. Ct. 1719 (2018), No. 16-111.

[37] Brief for Christian Legal Society et al. as Amici Curiae Supporting Petitioners at 2, Masterpiece Cakeshop, Ltd. v. Colorado C.R. Comm’n, 138 S. Ct. 1719 (2018), No. 16-111 at 9.

[38] Steven Goldberg, Beyond Coercion: Justice Kennedy’s Aversion to Animus, 8 University of Pennsylvania Journal of Constitutional Law 801, 801-807 (2006).

[39] Brief for Major Religious Organizations as Amici Curiae Supporting Respondents at 12–14, Obergefell v. Hodges, 576 U.S. 644 (2015), Nos. 14-556, 14-562, 14-571, 14-574, internal citations omitted.

[40] Brief for Major Religious Organizations as Amici Curiae Supporting Respondents at 12–14, Obergefell v. Hodges, 576 U.S. 644 (2015), Nos. 14-556, 14-562, 14-571, 14-574, at 13 internal citations omitted.

[41] Brief for the National Association of Evangelicals et al. as Amici Curiae Supporting Petitioners at 2, Hollingsworth v. Perry, 570 U.S. 744 (2013), No. 12-144. “Proposition 8 is a measured response to the California Supreme Court’s decision declaring traditional male-female marriage unconstitutional as a matter of State law. It maintains robust legal protections for same-sex couples while restoring the traditional definition of marriage. Its return to the status quo ante belies the Ninth Circuit’s unfair and inaccurate description of Proposition 8 as a product of anti-gay animus. On the contrary, our members supported Proposition 8 based on sincere beliefs in the value of traditional marriage for children, families, society, and our republican form of government. Only a demeaning view of religion and religious believers could dismiss our advocacy of Proposition 8 as ignorance, prejudice, or animus.”

[42] See Brief for The United States Conference of Catholic Bishops et al. as Amici Curiae Supporting Petitioner, Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171 (2012), No. 10-553; Brief for The Church of Jesus Christ of Latter-day Saints et al. as Amici Curiae Supporting Petitioners, Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049 (2020), Nos. 19-267 & 19-348.

[43] Hosanna-Tabor Evangelical Lutheran Church& Sch. v. E.E.O.C., 565 U.S. 171 (2012); Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049 (2020).

[44] Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C., 565 U.S. 171 (2012).

[45]Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C., 565 U.S. 171 (2012) at 188.

[46] Brief for The United States Conference of Catholic Bishops et al. as Amici Curiae Supporting Petitioner at 4, Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171 (2012), No. 10-553.

[47] Brief for The United States Conference of Catholic Bishops et al. as Amici Curiae Supporting Petitioner at 4, Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171 (2012), No. 10-553 at 3.

[48] Brief for The United States Conference of Catholic Bishops et al. as Amici Curiae Supporting Petitioner at 4, Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171 (2012), No. 10-553 at 3.

[49] Brief for The United States Conference of Catholic Bishops et al. as Amici Curiae Supporting Petitioner at 18–21, Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171 (2012), No. 10-553.

[50] Brief for The Church of Jesus Christ of Latter-day Saints et al. as Amici Curiae Supporting Petitioners at 10–12, Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049 (2020), Nos. 19-267 & 19-348.

[51] Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C., 565 U.S. 171, 181 (2012).

[52] Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2066 (2020).

[53] City of Boerne v. Flores, 521 U.S. 507 (1997).

[54] See, e.g., Masterpiece Cakeshop, Ltd. v. Colorado C.R. Comm’n, 138 S. Ct. 1719 (2018); Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021).

[55] Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).

[56] See, e.g., Burwell v. Hobby Lobby, Inc., 573 U.S. 682 (2014); Zubik v. Burwell, 578 U.S. 403 (2016); Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367 (2020).

[57] Brief for Christian Legal Society et al. as Amici Curiae Supporting Respondents, Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014), Nos. 13-354 & 13-356.

[58] Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014).

[59] Brief for National Association of Evangelicals et al. as Amici Curiae Supporting Petitioners at 4–7, Zubik v. Burwell, 578 U.S. 403 (2016), Nos. 14-1418, 14-1453, 14-1505, 15-35, 15-105, 15-119 & 15-191.

[60] Brief for National Association of Evangelicals et al. as Amici Curiae Supporting Petitioners at 4–7, Zubik v. Burwell, 578 U.S. 403 (2016), Nos. 14-1418, 14-1453, 14-1505, 15-35, 15-105, 15-119 & 15-191.

[61] See, e.g., Brief for The Church of Jesus Christ of Latter-day Saints et al. as Amici Curiae Supporting Petitioners at 3, Fulton v. Philadelphia, 141 S. Ct. 1868 (2021), No. 19-123.

[62] Employment Division v. Smith, 494 U.S. 872, 879 (1990), internal citations omitted.

[63] Brief for The Church of Jesus Christ of Latter-day Saints et al. as Amici Curiae Supporting Petitioners at 5, Fulton v. Philadelphia, 141 S. Ct. 1868 2021, No. 19-123.

[64] Brief for The Church of Jesus Christ of Latter-day Saints et al. as Amici Curiae Supporting Petitioners at 7, Fulton v. Philadelphia, 141 S. Ct. 1868 (2021), No. 19-123.

[65] Sherbert v. Verner, 374 U.S. 398 (1963).

[66] Brief for The Church of Jesus Christ of Latter-day Saints et al. as Amici Curiae Supporting Petitioners at 15, Fulton v. Philadelphia, 141 S. Ct. 1868 (2021), No. 19-123. The Sherbert standard is essentially what Congress codified in the Religious Freedom Restoration Act.

[67] Brief for Religious Denominations and Other Religious Institutions as Amici Curiae Supporting Petitioners, Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067 (2019), Nos. 17-1717, 18-18.

[68] Brief for United States Conference of Catholic Bishops et al. as Amici Curiae Supporting Petitioner, Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017), No. 15-577; Brief for Christian Legal Society et al. as Amici Curiae Supporting Petitioners, Espinoza v. Montana Dep’t of Revenue, 140 S. Ct. 2246 (2020), No. 18-1195; Brief for The Church of Jesus Christ of Latter-day Saints et al. as Amici Curiae Supporting Petitioners, Carson ex rel O.C. v. Makin, 142 S. Ct. 1987 (2022), No. 20-1088.

[69] Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067 (2019).

[70] Brief for Religious Denominations and Other Religious Institutions as Amici Curiae Supporting Petitioners at 4–5, Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067 (2019), Nos. 17-1717, 18-18.

[71] Brief for Religious Denominations and Other Religious Institutions as Amici Curiae Supporting Petitioners at 4–5, Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067 (2019), Nos. 17-1717, 18-18 at 6.

[72] Brief for Religious Denominations and Other Religious Institutions as Amici Curiae Supporting Petitioners at 16, Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067 (2019), Nos. 17-1717, 18-18.

[73] Brief for Religious Denominations and Other Religious Institutions as Amici Curiae Supporting Petitioners at 35, Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067 (2019), Nos. 17-1717, 18-18.

[74] Lemon v. Kurtzman, 403 U.S. 602 (1971), abrogated by Kennedy v. Bremerton School Dist., 142 S.Ct. 2407, 2427-2428 (2022). To determine whether government action violates the Establishment Clause of the Constitution, the Supreme in Lemon articulated the so-called “Lemon test” under which a court asks whether contested government action (a) has a secular purpose, (b) has the primary effect of neither advancing or inhibiting religion, and (c) does not foster excessive entanglement of the government with religion. The test was heavily criticized and was ignored in numerous Supreme Court cases, see, e.g., American Legion v. American Humanist Association, 139 S. Ct. 2067, 2079-2081 (2019); Town of Greece v. Galloway, 572 U.S. 565, 575-577 (2014). The Supreme Court seems to have explicitly abandoned the test in Kennedy.

[75] See, e.g., Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 398–99 (1993) (Scalia, J., concurring in judgment) (“Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence. . . . I agree with the long list of constitutional scholars who have criticized Lemon and bemoaned the strange Establishment Clause geometry of crooked lines and wavering shapes its intermittent use has produced.” (footnotes omitted). See also Brief for Religious Denominations and Other Religious Institutions as Amici Curiae Supporting Petitioners at 4, Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067 (2019), Nos. 17-1717, 18-18.

[76] Brief for American Legion as Amicus Curiae at 35, Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067 (2019), No. 17-1717, 18-18.

[77] Trinity Lutheran Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017).

[78] Espinoza v. Montana Dep’t of Revenue, 140 S. Ct. 2246 (2020).

[79] Brief for United States Conference of Catholic Bishops et al. as Amici Curiae Supporting Petitioner at 4, Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017), No. 15-577.

[80] Brief for United States Conference of Catholic Bishops et al. as Amici Curiae Supporting Petitioner at 4, Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017), No. 15-577.

[81] Carson ex rel O.C. v. Makin, 142 S. Ct. 1987 (2022).

[82] Brief for The Church of Jesus Christ of Latter-day Saints et al. as Amici Curiae Supporting Petitioners at 6, Carson ex rel O.C. v. Makin, 142 S. Ct. 1987 (2022), No. 20-1088.

[83] Brief for The Church of Jesus Christ of Latter-day Saints et al. as Amici Curiae Supporting Petitioners at 6, Carson ex rel O.C. v. Makin, 142 S. Ct. 1987 (2022), No. 20-1088.

[84] Brief for Christian Legal Society et al. as Amici Curiae Supporting Petitioners at 9, Masterpiece Cakeshop, Ltd. v. Colorado C.R. Comm’n, 138 S. Ct. 1719 (2018), No. 16-111.

[85] Brief for National Association of Evangelicals et al. as Amici Supporting Respondents at 4, Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020). “Resolving these conflicts will require years of wrenching litigation. Many religious organizations lack the financial and institutional fortitude to weather such battles of attrition.”

[86] H.R.1440—117th Congress (2021–2022): Fairness for All Act, H.R.1440, 117th Cong. (2021), https://www.congress.gov/bill/117th-congress/house-bill/1440.

[87] For example, the Church played a key role in helping to advance a piece of legislation known as the Utah Compromise that protects the rights of both religious and LGBTQ+ persons in certain contexts. The Church of Jesus Christ Supports the Federal Fairness for All Act, December 6, 2019, https://newsroom.churchofjesuschrist.org/article/federal-fairness-for-all-support-december-2019.

[88] Brief for Christian Legal Society et al. as Amici Curiae Supporting Petitioners, Masterpiece Cakeshop, Ltd. v. Colorado C.R. Comm’n, 138 S. Ct. 1719 (2018), No. 16-111.

[89] Brief for the National Association of Evangelicals et al. as Amici Curiae Supporting Petitioners at 35, Hollingsworth v. Perry, 570 U.S. 744 (2013), No. 12-144, internal quotations omitted.

[90] Brief for the National Association of Evangelicals et al. as Amici Curiae Supporting Petitioners at 20, Hollingsworth v. Perry, 570 U.S. 744 (2013) No. 12-144, internal quotations omitted.

[91] Brief for the National Association of Evangelicals et al. as Amici Curiae Supporting Petitioners at 35, Hollingsworth v. Perry, 570 U.S. 744 (2013), No. 12-144.

[92] Brief for the National Association of Evangelicals et al. as Amici Curiae Supporting Petitioners at 36, Hollingsworth v. Perry, 570 U.S. 744 (2013), No. 12-144.

[93] Brief for the National Association of Evangelicals et al. as Amici Curiae Supporting Petitioners at 11.

[94] Brief for Christian Legal Society et al. as Amici Curiae Supporting Petitioners at 9, Masterpiece Cakeshop, Ltd. v. Colorado C.R. Comm’n, 138 S. Ct. 1719 (2018), No. 16-111.

[95] Brief for the National Association of Evangelicals et al. as Amici Curiae Supporting Petitioners at 18, Hollingsworth v. Perry, 570 U.S. 744 (2013), No. 12-144.

[96] Brief for Christian Legal Society et al. as Amici Curiae Supporting Petitioners at 9, Masterpiece Cakeshop, Ltd. v. Colorado C.R. Comm’n, 138 S. Ct. 1719 (2018), No. 16-111.

[97] See section “Limitations on Our Analysis” (316)

[98] See subsections “Religious autonomy” (323) and “Religion in the public square: separation of church and state” (326).

[99] See subsection “Same-sex marriages and LGBTQ+ topics” (328).

[100] See subsection “Religion in the public square: separation of church and state” (326).