On April 27, 2023, America’s Future, along with three other nonprofits, submitted an Amicus brief with the Supreme Court of the United States (SCOTUS) in Tingley v Ferguson, Attorney General for the state of Washington, et al., Dkt. No. 22-942, a case involving the First Amendment right to freely speak and freely exercise one’s religion. The SCOTUS docket, with all legal filings in this case, is publicly available and located here.
Our brief was filed in support of the petitioner, Mr. Brian Tingley, who is a practicing Christian as well as a licensed marriage and family counselor. According to Mr. Tingley’s Petition for Writ of Certiorari, clients seek his expertise to assist them to work through various issues, including sexuality and gender identity. Aligned with his faith and personal beliefs, “Mr. Tingley grounds human identity in God’s design rather than a person’s feelings or wishes. Many of his clients agree and seek his counsel precisely because they want to align their identity with their faith.”
In violation of Mr. Tingley’s First Amendment rights to freely speak and free exercise of religion, Washington enacted a state statute prohibiting any discussions that might “encourage a ‘change [of] an individual’s sexual orientation or gender identity’, while allowing conversations that ‘support … identity exploration’ and ‘do not seek to change sexual orientation or gender identity’.”
Mr. Tingley requests SCOTUS declare this state law unconstitutional and enjoin Washington from the enforcement thereof. To that end, in seeking SCOTUS intervention, Mr. Tingley presents the following questions to the SCOTUS:
1. Whether a law that censors conversations between counselors and clients as “unprofessional conduct” violates the Free Speech Clause.
2. Whether a law that primarily burdens religious speech is neutral and generally applicable, and if so, whether the Court should overrule Employment Division v. Smith, 494 U.S. 872 (1990).
In our brief, we argue in favor of Mr. Tingley’s right to freely speak, stating, “Washington State assumes a person can change his sex, in defiance of biological and Biblical truth. And the state legislature then empowers its state officials to fine, sanction, and withdraw the licenses from counselors who adhere to Biblical morality. None of these dangerous results can be allowed to stand.”
Further, and at the heart of the litigation is the foundational dogma of our Constitutional Republic – the “First Amendment’s protections of both free speech and free exercise [of religion]” Both are firmly established and deeply rooted in our history and traditions. Morality and faith favor principles over persecution and, as we state in our brief, “[t]he Christian Counseling under attack is pure speech, not conduct, but even if viewed as conduct under the Ninth Circuit’s professional speech exception, the Christian Counselors’ words are protected by the Free Exercise Clause.”
Finally, our brief approaches the philosophical and religious matters raised in this case through a pragmatic perspective arguing “[t]he Framers established the Free Exercise of Religion as a jurisdictional limit on the power of government.”
We, at America’s Future, insist the SCOTUS reverse the Ninth Circuit’s decision on speech and religious grounds. As stated in our brief, “Washington State seeks to restrict the free exercise of religion…[and] once the activity being restricted is understood to be within the definition of ‘religion,’ it is jurisdictionally beyond the authority of the government.”