On Amicusing Religious Freedom

Over that last decade, the Church of Jesus Christ of Latter-day Saints has been party to at least 15 Supreme Court amicus briefs.[fn1] (How do I know? I searched Westlaw’s Supreme Court briefs database for “Latter-day Saints” and “Kirton McConkie.” Then I counted back to 2013. There may be more, but I think 15 gives me a pretty good sample.)[fn2]

Of these briefs, three are focused on opposing same-sex marriage. One addresses the definition of “sex” in Title IX. And at least twelve deal with questions of religious liberty (though there is some overlap—a number of the religious liberty briefs deal with religious liberty in the context of laws that limit discrimination against LGBTQ individuals.)

And what does the church say about religious liberty in its briefs? It paints religious liberty as absolutely critical. In its Carson brief, it explains that “the Religion Clauses protect the full range of religious freedom and not merely freedom from official discrimination.” In Groff, the church asserts that “Americans shouldn’t have to choose between their jobs and their faith.”

In 303 Creative, the church paints an almost dystopian vision if religious rights aren’t aggressively protected:

“Colorado’s public accommodations law bars them from posting a statement describing Lorie Smith’s traditional religious beliefs about marriage and forces them, contrary to those beliefs, to create custom websites with words promoting same-sex marriage. Their only escape is to stay out of the wedding industry, forcing Smith to choose between sacrificing her religion or her livelihood. That is an intolerable affront to the First Amendment and a betrayal of Obergefell. Without vigilant protection for free speech, all those with traditional religious understandings of marriage could face similar threats.”

In Little Sisters of the Poor, the church makes a case that the burdens of religious accommodation on third-parties doesn’t justify eliminating accommodation; rather, RFRA demands a balancing test that ultimately leans toward religious accommodation.

Skimming through this decade of amicus briefs, it becomes very obvious that the church places a strong emphasis on religious liberty and accommodation.

Reading through them makes me curious, though: how does the church feel about religious accommodation where it disagrees fundamentally with the religious practice seeking accommodation?

You may have read about some religious-liberty-based challenges to state abortion bans. For instance, in Indiana, the ACLU has sued on behalf of Hoosier Jews for Choice and five anonymous individuals. They argue that various religions, including Judaism, Islam, Unitarian Universalist, Episcopal and paganism, allow abortions in situations that would be banned in Indiana and, even more critically, some of these religious require abortion in situations that would be banned under Indiana law. So far, a judge has sided with the plaintiffs, agreeing that the law imposes burdens on the free exercise of religion in violation of the state RFRA.

I don’t have any idea how this will turn out, though it’s being appealed. Ultimately, though, it’s likely that it (or a similar Free Exercise or RFRA suit) will end up in front of the Supreme Court.

If that happens, will the LDS church file an amicus brief in favor of the people whose religious liberty is being infringed? To me, this is the test of how seriously we take our commitment to religious liberty. It’s easy enough to fight for your own right to religious liberty. But are we committed enough to fight for others’ religious liberty to do things that violate our religious tenets? That, it seems to me, is where the rubber meets the road.

A quick note: I’m not accuse the church of hypocrisy. That would be stupid—the current lawsuits aren’t anywhere near the point where the church would be filing an amicus brief. And I’m not interested here in comments accusing the church of hypocrisy. And honestly, this isn’t even the place to debate the church’s stance on abortion. For purposes of the comments, let’s assume that the church is sincere that it finds religious liberty critical, Let’s also assume that the Indiana litigants are sincere in their religious beliefs that abortion is permitted, and even required, in some circumstances.

[fn1] An “amicus brief” is a filing by a non-party to litigation. It’s generally, though not always, meant to advocate for one side or the other, often by providing the Court with a different perspective than the litigants raised.

[fn2] The briefs I found (in no particular order):

  1. Little Sisters of the Poor
  2. Zubik
  3. Trinity Lutheran
  4. Hollingsworth
  5. Windsor (it’s on Westlaw, but I couldn’t find it easily on the public internet)
  6. Fulton
  7. Gloucester
  8. Carson
  9. Bostock
  10. Bostock again (this one is for BYU)
  11. Groff
  12. 303 Creative
  13. American Legion
  14. Our Lady of Guadalupe School
  15. Obergefell

Photo by Wendy Seltzer. CC BY 2.0


  1. That’s nonsense. There is no religious right to terminate a pregnancy that any more than there is a religious right to sacrifice your son. We could even point to scriptural precedent for the latter.

    Of course the church won’t speak out to defend sought after rights it disagrees with. The church will speak up to defend other faiths it disagrees with on issues where the principled action is relevant.

    But did the church file a brief in the peyote cases? I thought not, but might remember wrong. Abortion is weightier and more serious than peyote. Not gonna happen. For good reason.

  2. Sute, why not? I know you don’t agree with it, but there are religions that expressly prefer the woman’s well-being to the wellbeing of a fetus and, under certain circumstances, impose a religious obligation to get an abortion. The fact that you don’t agree with that doesn’t make it not so.

    And yes, the LDS church disagrees with abortion. But the idea of supporting religious liberty is pretty weak sauce if you only support your own religious liberty. I think that the church’s support for religious liberty is more fundamental than merely demanding it and its members be able to act in the way they want.

  3. Left Field says:

    It’s worth noting that a Latter-day Saint who follows church counsel in this matter may well receive divine confirmation that an abortion is appropriate in her circumstances, but be prevented from doing so by law in many states. The principle of religious freedom ought to be applied to allow her to follow church teachings, her conscience, and her own personal revelation.

  4. Yes, I feel really badly for all the BYU profs who have to choose between their religious beliefs and their employment.

    The church doesn’t care about people’s freedom of conscience. It cares about institutional religious freedom.

  5. Kristine says:

    LDS church policy allows abortions in many cases that are now illegal in some states (including, ironically, Utah). We also have a religious liberty interest in opposing extreme abortion bans.

  6. Yes. In a clear-cut case with the question properly put, I suspect the Church and its lawyers would argue for religious liberty with respect to actions or principles the Church does not agree with or actively opposes.

    However, the more likely question is whether the Church would take up such a case in the first place, to speak out or file an amicus brief. Probably not. The Church has a history of being selective about public issues. In addition, I think some of the arguments the Church has made are strained (my opinion, of course) and I doubt the Church’s lawyers would be instructed to try quite as hard to make the same or similar argument in an unpopular case.

  7. I see commenters (elsewhere) tempted by the argument “that’s not really religion” (or not really religious principle) to sidestep positions they don’t approve of, themselves. I believe the courts and the LDS Church and its lawyers are reluctant to go down that road.

    Not having read all 15 amicus briefs, can you tell, Sam, whether I’ve got that right?

  8. Raymond Winn says:

    Sam – thx for posting this, and especially thx for doing the necessary legal searches. One nit – there is a typo that tends to confuse the point you were trying to make: “In 303 Creative, the church paints an almost dystopian vision IF religious rights aren’t aggressively protected”.

  9. Elisa, you’re right that a good portion of the briefs deal with institutional religious liberty. But a number support (either in addition or separately) individual religious liberty.

    Chris, you’re right that historically the church has been at least hesitant to step into public debates. But over the last ten years, it has filed amicus briefs in 14 different Supreme Court cases. I didn’t go back further than 10 years, but 14 cases over 10 years strikes me as the church filing an amicus brief in every—or at least almost every—religious liberty case to hit the Supreme Court. I wouldn’t expect the church to involve itself in these religious liberty to abortion cases if they don’t make it to the Supreme Court. But if they do, it seems like the kind of thing the church has, over the last decade, done.

    I think the argument that it’s not really religion is, in many cases (including these ones) a weak argument, but I also think you’re right that both the church and the courts don’t tend to buy that.

    Raymond, thanks.

  10. I wouldn’t count out the church filing a brief in support of religious liberty for a fact pattern like this – I would hope the leaders making the call would think hard about the classic quote from Joseph Smith on this topic. Might get them off of the culture war mindset long enough to act accordingly.

  11. The Other Brother Jones says:

    A couple of thoughts:
    re: “That’s not really religion”. Who is to say? Religion can be any set of beliefs aperson has, even atheism.
    Some basic rights must have limits. “You right to swing your fist ends where my face begins” Yelling FIRE in a crowded theater, And as alluded to in the first comment, Should religious freedoms protect the right to sacrifice virgins in a volcano?
    The Problem is where to put those limits. Personally, I am against the virgins in the volcano, but otherwise I have no idea.

  12. The problem with the religious liberty argument for abortion is that it requires expanding religious liberty far beyond existing case law and even the most strident positions that the Church has taken. For most advocates of religious liberty, there is only a conflict between a law and religious liberty interests when the law either requires action that someone’s religion prohibits or prohibits that which someone’s religion requires. I’m unaware of any person whose sincere religious beliefs requires abortion except to prevent serious injury to the mother. So the farthest that argument carries is that abortion must be permitted to prevent serious injury to the mother, which is already an exception included in every state law, or at the very least, purported to be included.

  13. I’m also curious if someone can explain how a judge can block general application of a state RFRA. My understanding is that RFRAs essentially create exceptions to laws as applied to the litigants and other similarly situated people.

  14. Dsc, the fact that you’re unaware of any person whose sincere religious belief requires abortion only tells me about the circles you run in. A number of religions do, in fact, require (at least, to the extent a religion can require something) abortion in certain cases.

    Is this an unprecedented religious liberty claim? Well, it is unprecedented over the last half century or so, since Roe protected the right to abortions, so there was no need to judicially assert a religious right. And, fwiw, a number of states don’t provide an exception to the ban for the health of the mother, including Texas and Arkansas.

    You may disagree with other religions’ views on the religious necessity of abortion. But telling them that their beliefs are insincere? That strikes of the type of religious bigotry that, as Mormons, we should really hesitate to engage in.

  15. Sam, rather than accuse me of ignorance and making unfounded judgments about the circles I run in, why don’t you point me to a religious group that requires abortion outside of circumstances to protect the mother from injury?

    I also thought I was pretty clear about what would be unprecedented, which would be extending religious liberty to include practices that religion permits but doesn’t require.

    You’ve also jumped the gun on the sincerity claim. I haven’t made any claims about the sincerity of anybody’s claimed beliefs. I’m saying that these groups claim to have sincere beliefs about a religious obligation to have an abortion in extremely narrow circumstances, which are covered (or purported to be covered) in every state.

    I understand that there are some questions about what the law actually permits, but if you ask Texas and Arkansas legislators, they’d tell you that they’re laws permit abortion where necessary to save the life of the mother.

  16. Dsc, most or maybe all states allow abortions in the case of the life of the mother. That’s not what you said or what I responded to: you said serious injury, and these states don’t have an exception for serious injury.

    As for religions that require it in at least some instances: I included some in the OP: Judaism, Islam, Unitarian Universalist, Episcopal and paganism. On top of those, the Satanic Temple has similar religious beliefs, and I have no doubt there are other religions too. In fact, as Left Field points out, even our religion could, at times, impel us to pursue an abortion that wouldn’t be permitted under certain state laws.

  17. Uh, Sam, that isn’t sounding real credible to me. Episcopalians require women to get abortions in some instances? I’m sure all of the examples you name allow for abortion in some instances, but I’m trying to imagine circumstances when any of them would require a woman to have an abortion.

    Whether or not the church signs on to an amicus brief is really not a good test of its sincerity about an issue. There might be any number of complicating factors that make a particular case a bad opportunity for getting involved.

  18. C. Keen, I thought about sending you something specific, but instead I’m going to let you do your own research. Plenty of religious clergy and individuals claim a religious impetus to have an abortion under certain circumstances. You don’t think that sounds credible? I’ll say that plenty of people don’t find it credible that one’s religion would not allow them to bake a cake or take wedding photos or refuse to say the Pledge of Allegiance or leave water and food for people crossing the border or wear particular types of clothing or refuse to work on Saturday or Sunday. Fortunately, the law doesn’t ask what you or I or any other random person finds to be a credible belief.

  19. The place where the church could have the greatest influence for increasing religious freedom (but won’t) is with Utah state laws criminalizing plural marriages between consenting adults. It’s an obvious issue of religious freedom, as church leaders were willing to go to prison 150 years ago to practice what they felt was a key part of their faith.

    Another example of supporting religious freedom would be changing church policy to allow students at church schools to change their religious affiliation to a non-LDS denomination (or none) without being ejected from the school. Non-LDS students are admitted all the time, albeit with different pricing which is reasonable IMO. Those students can convert to LDS with no consequence. But the reverse is not allowed. So ironically it’s LDS students who are religiously discriminated against by our own church. And, yes, the right to change one’s affiliation is a key element of religious freedom.

    This just shows the church is not interested in religious freedom except where it benefits.

  20. Roger Hansen says:

    I find this whole issue offensive. Religious freedom in America is not being threatened. The Church alleges to be a global church. The majority of members live outside the United States in developing countries. Across the gamut, K-M has given the Church leaders bad advice. And appears to be padding their billable hours with issues like religious freedom, medical marijuana, abuse advice and hot line. The contract with M-K needs to be severed, an independent review needs to made of the Church’s legal needs, and the Church’s legal needs need to be put up for bids.

    There are real religious freedom issues in other parts of the world. How about the Uyghurs and Tibetans? Oops, we want to build a temple in China. How about in Dubai? Oops, we are building a temple there. How about Israel? Oops we have the Jerusalem Center.

    Spending money on these US-issue briefs is a disgusting waste of money. Let someone else pay K-M.

  21. C. Keen, having now had an opportunity to read the complaint, some of the religious abortion mandates that the plaintiffs alleged are really just statements that the plaintiff believes that abortion is permissible, stretched and distorted in a way to frame it as a mandate. The circumstances that would convert it from mere permissibility into a requirement are somewhat contrived. Having said that, some of the situations make sense as a religious requirement, but most probably in cases where the law already arguably allows for an abortion. So yes, in some circumstances, there are some people whose religious beliefs would require an abortion, but they are almost all circumstances are frequently (if not always) subject to exceptions to abortion restrictions.

  22. You don’t have to look very hard to find an example of a religion that requires an abortion under certain circumstances:

    A woman is raped and conceives. She prays and asks what to do, and receives a prompting from the Spirit that she should have an abortion. Her religion teaches that its members should obey promptings from the Spirit, so she now has a religious duty to have an abortion.

    Yep, that’s us. The Handbook describes this exact situation, and if it did not anticipate that sometimes the Lord’s answer will be to have an abortion there would be no point in having exceptions at all.

    (Left Field already touched on this, but since others didn’t seem to recognize it I figured it should be made clearer.)

  23. Not Convinced says:

    Dsc has it right – after reading the brief most of these are completely empty. Whether a religion considers something “permissible” is irrelevant – only the handful who actually claim their religion requires abortion should even be considered.

    A few people bring up personal revelation, but clearly haven’t thought it through, given that, y’know, one could claim personal revelation requires them to do literally anything. If that’s constitutionally protected, no law is enforceable.

    The Satanic Temple example is similar – if atheistic “religions” created for activist or parody purposes can claim any act as a religious obligation, then there is once again no real limit.

  24. It’s true that personal revelation could require someone to do absolutely anything. But that’s true of religious duties in general. That’s why religious freedom always has to be balanced against other interests. I’ll let the lawyers weigh in on whether it’s important that a claimed religious duty be part of an established practice of an established religion rather than something someone came up with out of the blue.

    But if that’s the standard, we easily pass it. We’ve had an established policy for many years that under certain limited circumstances a woman (and most likely others involved) should prayerfully consider whether or not a pregnancy should be terminated, with a clear assumption that sometimes the answer will be yes and if it is she should act on it. The only recent change is that it no longer requires a bishop’s approval, which sure looks like a step to ensure abortion is still an option in states like Texas where a bishop could be sued for giving that approval.

    One could argue that it’s not a religious duty because not all members under those circumstances will have a duty to terminate the pregnancy–some will pray and be told not to. But that would be similar to saying a Catholic who feels a calling to become a priest does not have a religious duty to become a priest because not all Catholics have that duty, so the government can make it illegal to become a priest.

    Or one could argue that a fetus has all the rights of a person, so abortion is always wrong and religious freedom must take a back seat to the fetus’s right to life. That’s logically consistent. But it’s awfully hard to reconcile with the Church’s policy, which clearly implies that sometimes the Lord thinks the right answer to a very painful situation is to have an abortion. Seems to me many members struggle with that because they’ve been influenced by the political pro-life movement.

  25. Not Convinced, I’m leaving your comment because RLD has responded. But going forward, I’m going to delete comments that lack the imagination and empathy to recognize that others’ religious beliefs might impel them to do something that the commenter can’t imagine. I’m not interested in providing a forum for religious bigotry. And denying the sincerity of others’ religious beliefs is religious bigotry.

  26. Sam,
    I’m engaging with your supposition on legal terms. The first amendment does not grant a religious right to the destruction of human life. Freedom of religious is no so absolute that every belief is fair game. It’s how the belief translates into action. You’re a lawyer, so I’m surprised to see this elementary principle be ignored under the guise of various ideas of sincere belief and revelation, etc. Those are beside the point. It’s the life ending action resulting from that belief that is being regulated.

    The state has an overriding interest in the preservation of life. That a woman’s life is claimed to be under low probability of threat from nature taking its course does not outweigh the certainty of the life being ended. There are obvious extenuating circumstances where some form of abortion is possible, even in states that restrict it. Arguing that those medically advised abortions are similar to the other is disingenuous. Life does carry risk. Google says odds of dying giving childbirth in the USA is 1/6000. Odds of dying in a car crash 1/100. Giving birth is part of the human condition.

    There are certainly very real fears and concerns by a variety of people about the risks and dangers of each activity. If the USA banned driving in cars for being too dangerous, could a religious objection be raised in that my car is what gets me to church? No mattery how foolish the law (which maybe unconstitutional for other means), the ban would apply equally to all and was not targeted at any particular religious belief. It was not clearly attempting to regulate religious belief by other means if we banned cars to prevent auto deaths.

    So now you’re arguing the latter position that the state must allow abortion because it affects specifically those religions who claim sincere belief to the preservation of maternal life at the expense of potential developing life in utero. What that argument essentially calls for is a regulatory regime to assess risk. To say that the state is unqualified to assess risk and that risk is only best assessed by the woman in question is a good sound bite, but the logical coherency of that statement undoes much of the legal system if we extend that rationale everywhere else individual risk/need is being weighed.

    And the most recent Supreme Court case specifically allows for states to craft all manner of laws regulating or permitting abortions. It even encouraged it. Are you suggesting that we’d be best if it was done at a federal level?

    Or just saying that because this issue is contentious, it should be overturned for some constitutional hailmary?

  27. Sute, while you apparently view a fetus as representing human life, U.S. law certainly doesn’t. And, in fact, LDS doctrine is agnostic about the life-ness of fetuses. So I’m not interested in addressing your assertion that somehow abortion is the equivalent of human sacrifice. That’s stupid.

    And you want to bring in law? RFRA says that, in evaluating questions of religious practice, courts defer to an individual’s assertion of their sincerely held religious beliefs. (That means that it doesn’t matter whether you, I, or a judge think those beliefs are sincere—courts are required to take them at their word.) If a person can show that a law represents a substantial burden on their free exercise, the burden shifts to the government to show that the burden furthers a compelling government purpose and is the least-restrictive manner.

    Which is to say, there’s a strong basis for the RFRA challenge to these abortion restrictions. And, fwiw, Indiana courts (at least) seem to agree.

    I have no idea whether you’re a lawyer or not. But that’s the legal landscape. There’s a religious liberty claim under RFRA. It’s the type (if not the substance) of claim that the church has filed amicus briefs over the last decade plus to support. If this goes to the Supreme Court, it provides an opportunity for the church to show that it supports religious liberty even where it disagrees with the underlying religiously-motivated actions.

  28. Sam, what do you mean U.S. law doesn’t view a fetus as representing human life? The Unborn Victims of Violence Act seems to indicate otherwise, and that’s before we get into individual states, which grant a wide range of rights to the fetus.

    Something that hasn’t been brought up much is that the RFRA challenge ultimately can and should fail because the state has a compelling interest in the protection of human life, and there is no less restrictive way of protecting human fetal life than by prohibiting abortion.

    Indiana courts (plural) do not agree. One judge agreed. And the opinion is fatally flawed in the compelling interest analysis.

    Where’s the limit on what the Church should support in terms of religious liberty? Everyone agrees that religious liberty has its limits. You wouldn’t suggest that the Church should support the religious liberty of some neo-Aztec religious group that claimed the religious liberty to perform human sacrifice.

  29. Dsc, the UVVA doesn’t create humanness in a fetus; rather, it increases the criminal consequences of assaulting a pregnant woman, especially if the fetus is harmed. We also impose criminal consequences on certain harms done to animals, to property, and to corporations. And corporations, at least, have legal personhood. We wouldn’t argue that the fact that a corporation has speech and free exercise rights, can enter into contracts, can sue, be sued, and own property makes corporations human, though.

    And, in fact, the LDS church doesn’t recognize a fetus as human; it allows for abortion in situations that it wouldn’t allow for murder. Which is to say, bringing up human sacrifice is inapposite and unhelpful.

    Should the church file an amicus brief if this goes to the Supreme Court? Given that it files amicus briefs in virtually every case anymore that implicates religious liberty, yeah, probably. Will it? I don’t know, but I certainly hope so.

  30. Sute: The “destruction of human life” you are talking about seems to be only with regards to the life of the fetus, not the lives of women. You imply that pregnancy is a normal part of life, like driving a car. You are right, but only if: 1) we allow for pregnancy to be freely chosen, and 2) we allow for the life of the woman to matter in the calculus when something goes horribly wrong. Like most of the faiths listed in Sam’s post, I am persuaded that the life of the mother is always the overriding concern because she is able to survive on her own and care for the infant, but the reverse is not true.

    There are many many cases since the Dobbs decision that illustrate that maternal mortality rates are increasing in states with the most strict bans. Pregnancy is a life and death decision for a woman to make, even though most women don’t know what might go wrong in their pregnancy. The stakes in pregnancy are always high, and always born by the woman. It is not “nature taking its course” when a woman who is already miscarrying a dying fetus is forced to wait until she is near death herself (sepsis) for the fetus to be removed as has happened since Dobbs to five women in Texas. https://www.sepsis.org/news/texas-lawsuit-sheds-light-on-maternal-sepsis-risk/

    I agree with Elisa and Dave K that the Church only cares about religious freedom insofar as it believes it benefits as an organization. It does not respect the individual beliefs of its own members unless they accord with what top leaders say they must believe, and it doesn’t care AT ALL what people of other faiths believe, full stop, unless they can bolster support for their own views by implying their views are commonplace. Case in point, BYU forcing Sikh students to shave and remove their turbans, even though their policy against beards does not have a religious basis, and wearing a beard and turban DOES. I know Sam will remember this post, since he wrote it: https://bycommonconsent.com/2014/11/19/byu-religious-freedom-or-its-lack-and-beards/ But since you asked, I won’t call that hypocrisy. I’ll just call it interesting.

  31. Geoff- Aus says:

    I am so glad I live in a place where abortion is a medical proceedure between a woman and her doctor.
    Where right wing politics is so much less extreme that they stay out of this and so many other issues. We have a state elction campaign running at present, and although the incumbent is a catholic, abortion has not been mentioned.

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