NO.

15-1274

In the

Supreme Court of the United States

___________________
BRYAN J. BROWN,
Petitioner,
v.
INDIANA BOARD OF LAW EXAMINERS,
Respondent.
___________________
On Petition for Writ of Certiorari to the
Supreme Court of Indiana
___________________
BRIEF OF AMICUS CURIAE
THOMAS MORE SOCIETY
in support of PETITIONER
___________________
Thomas L. Brejcha
Jocelyn Floyd
Thomas More Society
19 S. LaSalle Street,
Suite 603
Chicago, IL 60603
ph: 312-782-1680

Stephen M. Crampton
Special Counsel
Thomas More Society
Counsel of Record
P.O. Box 4506
Tupelo, MS 38803
ph: 662-255-9439
smcrampton@hotmail.com

Counsel for Amicus

TABLE OF CONTENTS
TABLE OF CONTENTS ........................................... i
TABLE OF AUTHORITIES .................................... ii
INTEREST OF AMICUS CURIAE ......................... 1
SUMMARY OF ARGUMENT.................................. 2
REASONS FOR GRANTING THE WRIT .............. 3
I.

The Lack of Clear Guidelines Invites

Discriminatory Treatment of Applicants. .... 4
A. Constitutional protections apply to
applicants for admission to a state bar. ..... 4
1. Due Process and Equal Protection
apply to Mr. Brown here. ......................... 4
2. The First Amendment applies to Mr.
Brown here. .............................................. 5
B. Lawyers serve as guardians of freedom. .... 6
C. This Courts precedents offer only
confusing formulas, refined reasonings,
and puzzling holdings. ............................... 8

II. In our Increasingly Divided Society, the

Potential for Abuse of Power by
Gatekeepers of the Bar Demands Tighter
Controls by this Court. ................................ 10
CONCLUSION ....................................................... 15

ii

TABLE OF AUTHORITIES
Cases
Baird v. State Bar of Ariz., 401 U.S. 1 (1971) passim
Cantwell v. Conn., 310 U.S. 296 (1940)................... 5
Capitol Square Review & Advisory Bd. v. Pinette,
515 U.S. 753 (1995) ................................................ 12
Everson v. Bd. of Educ., 330 U.S. 1 (1947) .............. 6
Ex parte Garland, 71 U.S. 333 (1867) ..................... 4
Gentile v. State Bar of Nev., 501 U.S. 1030 (1991) 12
Gillette v. United States, 401 U.S. 437 (1971) ....... 13
In re Anastaplo, 366 U.S. 82 (1961) ........................ 9
In re Stolar, 401 U.S. 23 (1971) ......................... 6, 10
Konigsberg v. State Bar, 366 U.S. 36 (1961) ........... 9
Mississippi Commn on Judicial Performance v.
Wilkerson, 876 So. 2d 1006 (Miss. 2004) ............... 12
NAACP v. Alabama, 357 U.S. 449 (1958) ............. 13
Schware v. Bd. of Bar Examiners of N.M., 353
U.S. 232 (1957) ..................................................... 4, 9
Shelton v. Tucker, 364 U.S. 479 (1960) ................. 13

iii

Supreme Court of N.H. v. Piper, 470 U.S. 274 (1985)

............................................................................... 4
Wallace v. Jaffree, 472 U.S. 38 (1985) ............... 7, 13
Walters v. Natl Assn of Radiation Survivors, 473
U.S. 305 (1985) ......................................................... 8
West Virginia Bd. of Educ. v. Barnette, 319
U.S. 624 (1943) ......................................................... 7
Willner v. Comm. on Character & Fitness, 373
U.S. 96 (1963) ........................................................... 4
Other Authorities
Christian Judge Faces Ethics Charges for Marriage
Views, CBN NEWS, Feb. 26, 2016, available at
http://www1.cbn.com/cbnnews/us/2016/February/
Christian-Judge-Faces-Ethics-Charges-forMarriage-Views .................................................. 12
Tim Graham, Networks, Major Papers Skip State
Department Censorship of Fox News Q&A Video,
MRCNEWSBUSTERS, May 11, 2016, 8:27 p.m.,
available at http://newsbusters.org/blogs/nb/timgraham/2016/05/ 11/jen-psaki-gets-psnipped .... 12
J. Madison, A Memorial and Remonstrance Against
Religious Assessments .......................................... 6
Ken McIntyre, Judge faces removal, $40K fine
because of her beliefs about marriage, The
Heritage Foundation, May 12, 2016, 2016,
available
at
http://dailysignal.com/

iv

2016/05/12/judge-faces-removal-40k-finebecause-of-her-beliefs-about-marriage/..............11
R. Razzaque, M.D., Psychology Today, The Myth of
Objectivity, Jun. 19, 2012, available at
https://www.psychologytoday.com/blog/politicalintelligence/201206/the-myth-objectivity ............ 7
Alisha Roemeling, Marion judge says he wont
perform
same-sex
marriages,
STATESMAN
JOURNAL, Sept. 4, 2015, 7:29 a.m., available at
http://www.statesmanjournal.com/story/news/201
5/09/03/marion-county-judge-vance-day-says-henot-perform-same-sex-marriages/71669492/ ..... 11
W. Shakespeare, King Henry VI, pt. 2, Act IV,
scene 2, line 72...................................................... 8

INTEREST OF AMICUS CURIAE1

Amicus Curiae Thomas More Society is a not-forprofit, national public interest law firm dedicated to
restoring respect in law for life, family, and religious
liberty. Based in Chicago, the Thomas More Society
defends and fosters support for these causes by
providing high quality pro bono legal services from
local trial courts all the way to this Court. Since its
founding in 1997, the Thomas More Society has
handled hundreds of cases defending the First
Amendment rights of those expressing themselves
in public fora as well as ensuring the free expression
of religion in the public square.
The Thomas More Society has assisted
thousands of clients, including some of the nations
most renowned pro-life and religious leaders: David
Bereit and 40 Days for Life; Lila Rose and Live
Action, Joe, Ann, and Eric Scheidler and the Pro-Life
Action League; Troy Newman and Operation
Rescue; Former Kansas Attorney General Phill
Kline; Catholic Bishops; Catholic Charities;
Dioceses; Religious Orders; the Notre Dame
Protestors (ND88); and many more. Given amicus
strong interest in the issues presented and its

Counsel for a party did not author this brief in whole or in

part, and no such counsel or party made a monetary
contribution to fund its preparation or submission. No person
or entity other than amicus curiae or its counsel made a
monetary contribution to the preparation and submission of
this brief. All parties have received timely notice and have
consented to the filing of this brief.
1

expertise in the First Amendment, amicus suggests

that this brief may be helpful to the Court.
SUMMARY OF ARGUMENT
The issues presented in this case are of national
importance. A distinguished lawyer of twenty years
who has practiced extensively in both state and
federal courts has been forever banned from even
applying to the Indiana bar in a one-page ruling
devoid of findings of fact or conclusions of law.
Although the final order does not expressly reveal
the basis for so severe a punishment, the record
contains troubling evidence of improper motives.
Regulation of the bar is a serious matter, because
lawyers serve as guardians of our freedom. The
absence of clear guidelines in the determination of
character and fitness of applicants to the bar opens
the door to arbitrary and discriminatory denial of
the right to practice law.
This case presents an opportunity for the Court
to establish limits on the use and abuse of the
process of examining bar applicants, and to reaffirm
their fundamental rights to freedom of conscience
and due process.

REASONS FOR GRANTING THE WRIT

My question is direct, is that
correct do you firmly believe that
youre obligated as a Christian to
put obedience to Gods law above
human law? Thats my question to
you? Is that assessment correct?
The question is, is that assessment
correct? 2
Bryan Brown has practiced law for twenty (20)
years in both state and federal courts all across the
country. He has successfully argued and briefed
cases in several federal appellate courts, and
conducted himself with professionalism and dignity
in highly contentious cases involving issues of the
greatest public concern. Despite his active
participation in cases on the most contentious issues
of our times, he has never been disciplined as an
attorney.
Mr. Brown passed the Indiana bar examination
and satisfied all prerequisites other than the
character and fitness determination. The Indiana
Supreme Court has nevertheless denied Mr. Brown
admission to its bar. Worse, in a one-page order

App. 92, n.1. As Mr. Brown explained, this question was put
to him by the government in an official court proceeding, in
persistent voice. Id. [Note: Petitioner mistakenly cited to App.
78, n.1 in his Petition.]
2

devoid of findings of fact or conclusions of law, it has

forever banned him from re-applying.
Although voluminous, the record shows that Mr.
Brown was required to undergo psychological
testing that produced ambiguous results and to
answer invasive and plainly improper questions
suggesting an ideological bias on the part of the
Indiana Board of Law Examiners. Given the absence
of findings of fact and conclusions of law, the
inference of impropriety is strong.
The lack of guidance to states in assessing the
character and fitness of applicants to the bar invites
arbitrary and even discriminatory treatment. This
Court should grant the writ to address this need for
direction.
I.

The Lack of Clear Guidelines Invites

Discriminatory Treatment of Applicants.
A. Constitutional protections apply to
applicants for admission to a state
bar.
1. Due Process and Equal Protection
apply to Mr. Brown here.

While the cases addressing whether a law license

is a liberty interest or a property interest appear to
be conflicting, as Petitioner has shown (Pet. at 2830), at a minimum the interest of an applicant is
sufficient to invoke Due Process protections. See,
e.g., Schware v. Bd. of Bar Examiners of N.M., 353

U.S. 232, 238-39 (1957) (A State cannot exclude a

person from the practice of law or from any other
occupation in a manner or for reasons that
contravene the Due Process or Equal Protection
Clause of the Fourteenth Amendment.) (citations
omitted); Willner v. Comm. on Character & Fitness,
373 U.S. 96, 102 (1963) (same); Ex parte Garland, 71
U.S. 333, 379 (1867) (one does not hold a law license
merely as a matter of grace and favor); see also
Supreme Court of N.H. v. Piper, 470 U.S. 274, 281
(1985) (the opportunity to practice law [is] a
fundamental right which falls within the ambit of
the Privileges and Immunities Clause.).
The precise nature and extent of the Due Process
protections afforded an applicant to a State bar
remain unclear, however. (Pet. at 28-29).
Respondent here failed to comply even with their
own rules. Those rules allowed Mr. Brown to
subpoena witnesses at the hearing addressing his
character and fitness, yet Respondent failed to allow
a single witness to appear in response to Mr.
Browns subpoenas. (App. 16-18).
At a minimum, this Court should remand this
case and require that Respondent articulate the
grounds on which it based such a Draconian
sentence against Mr. Brown. Fundamental fairness
demands no less.

2. The First Amendment applies to Mr.

Brown here.
In addition, under the rule announced in Baird v.
State Bar of Arizona, 401 U.S. 1 (1971), an applicant
for admission to a state bar who has passed the
written examination but is denied admission under
circumstances suggesting bias against his beliefs is
entitled to the protection of the First Amendment.
In Baird, the applicant refused to answer certain
questions promulgated by the State Bar of Arizona
inquiring into her ties to the Communist Party. The
plurality held that such inquiries infringed upon the
applicants First Amendment rights. Id. at 7. The
First Amendment create[s] a preserve where the
views of the individual are made inviolate. Id. at 6;
see also Cantwell v. Conn., 310 U.S. 296, 303-04
(1940) (The First Amendment embraces two
concepts freedom to believe and freedom to act. The
first is absolute but, in the nature of things, the
second cannot be.) (emphasis added); see also In re
Stolar, 401 U.S. 23 (1971) (refusal to answer
questions concerning ties to Communist Party
protected by First Amendment).
Mr. Brown, like Ms. Baird, passed the written
examination but was denied admission under the
character and fitness review. Respondent chose not
to reveal the exact reasons for the denial. The
implication from the record, however, and the
nature of the questions put to Mr. Brown regarding
his religious beliefs, give rise to an inference of illicit
motive.

In his Memorial and Remonstrance, James

Madison wrote: The Religion then of every man
must be left to the conviction and conscience of every
man; and it is the right of every man to exercise it as
these may dictate. This right is in its nature an
unalienable right. J. Madison, A Memorial and
Remonstrance Against Religious Assessments,
reprinted in Everson v. Board of Educ., 330 U.S. 1,
64 (1947) (Rutledge, J., dissenting). Unless this
Court acts, this case places at risk the consciences of
bar applicants everywhere.
B. Lawyers
freedom.

serve

as

guardians

of

A system that allows the gatekeepers of the bar

to arbitrarily deny applicants a license to practice
law has grave implications not only for the bar itself
but for the nation at large.
The record below contains troubling evidence of
the use of multiple mental health professionals
whose findings were varied and from which
Respondent was free to selectively choose the most
favorable portions to support what appears to have
been the outcome it desired. Compare App. 9, n.1
(stating that Dr. Flueckiger found that Mr. Brown
satisfied the requirements of Rule 12 and
recommended that he be permitted to sit for the
Indiana bar examination) with App. 9, n.2 (stating
that Dr. Bowman found troubling that Mr. Brown
firmly believes he is obligated as a Christian to put

obedience to Gods laws above human laws).3 The

obvious inference of Dr. Bowmans highlighting Mr.
Browns orthodox Christian views is that they
formed a basis on which to recommend denial of Mr.
Browns application.
As Justice Jackson eloquently stated in West
Virginia Board of Education v. Barnette, 319 U.S.
624, 642 (1943): If there is any fixed star in our
constitutional constellation, it is that no official,
high or petty, can prescribe what shall be orthodox
in politics, nationalism, religion, or other matters of
opinion or force citizens to confess by word or act
their faith therein. See also Wallace v. Jaffree, 472
U.S. 38, 52 (1985) (noting that the right to speak
and the right to refrain from speaking are
complementary components of a broader concept of
individual freedom of mind). The actions of
Respondent are dangerously close to violating this
principle of freedom of the mind, effectively
prescribing what shall be orthodox among members
of the State Bar of Indiana.

The debate over whether the mental health field even

constitutes a science continues, but the myth of true
objectivity has largely been settled. See, e.g., R. Razzaque,
M.D., Psychology Today, The Myth of Objectivity, Jun. 19, 2012,
available at https://www.psychologytoday.com/blog/politicalintelligence/201206/the-myth-objectivity (last accessed May
13, 2016).
3

Justice Stevens warned that we must remember

the function of the independent lawyer as a
guardian of our freedom. Walters v. Natl Assn of
Radiation Survivors, 473 U.S. 305, 371 (1985)
(Stevens, J., dissenting). It no coincidence that
Shakespeares oft-quoted line, The first thing we do,
lets kill all the lawyers4 was spoken by Dick the
Butcher, a rebel seeking to seize power illegally.
With respect to that play, Justice Stevens wrote: As
a careful reading of that text will reveal,
Shakespeare insightfully realized that disposing of
lawyers is a step in the direction of a totalitarian
form of government. Id. at n.24.
In the words of Justice Stevens, allowing states
to discriminate on the basis of an applicants
religious beliefs is a step in the direction of a
totalitarian form of government. It is incumbent
upon this Court to guard the gatekeepers, and to set
the limits within which the grant or denial of a law
license must operate.
C. This Courts precedents offer only
confusing
formulas,
refined
reasonings, and puzzling holdings.5
This Court has wrestled with the questions
presented here for many years, but has failed as yet
to articulate clear guidelines to aid the various state

W. Shakespeare, King Henry VI, pt. 2, Act IV, scene 2, line

72.
5 Baird, 401 U.S. 1, 4.
4

10

bars in setting limits on the nature and extent of

inquiries into the beliefs of applicants. As the Court
observed 45 years ago in Baird: Sharp conflicts and
close divisions have arisen in this Court concerning
the power of States to refuse to permit applicants to
practice law in cases where bar examiners have been
suspicious about applicants loyalties . . . 401 U.S.
1, 3 (1971).
Even then, the issue was becoming increasingly
divisive and bitter. Id. Fourteen years prior to
Baird, in 1957, the Court reversed the States denial
of admission of a former Communist to the New
Mexico Bar, 5-3, with one Justice not participating.
Schware v. Bd. of Bar Examiners, 353 U.S. 232
(1957). The petitioner in that case had been arrested
several times in the past, had used various aliases
for a period of four or five years, and admitted to
having been a member of the Communist Party. Id.
at 234, 236. The Court nevertheless carefully
considered the record as a whole, and concluded:
The undisputed evidence in the record shows
Schware to be a man of high ideals with a deep sense
of social justice. Id. at 240. The same could be said
of Mr. Brown here.
In Konigsberg v. State Bar, 353 U.S. 252 (l957),
this Court held that it violated Due Process to deny
an applicant admission to the California bar solely
because he refused to answer questions about his
membership in the Communist Party. Four years
later, after remand, this Court affirmed, by a 5-4
vote, denial of Konigsbergs application to the bar,
finding that refusal to answer the questions

11

obstructed a full investigation. Konigsberg v. State

Bar, 366 U.S. 36 (1961). In yet another case, this one
out of Illinois and raising issues similar to those in
Konigsberg and Schware, the Court affirmed the
denial of the applicants admission after he refused
to answer those questions, 5-4, finding no Due
Process violation. In re Anastaplo, 366 U.S. 82
(1961).
Ten years after the affirmation of those two
denials based on ideological concerns, the plurality
in Baird reversed a denial based on the applicants
prior history with the Communist party. The Court
summarized the state of the law: The foregoing
cases and others contain thousands of pages of
confusing formulas, refined reasonings, and
puzzling holdings that touch on the same suspicions
and fears about citizenship and loyalty. Baird, 401
U.S. 1, 4.
The rulings in Baird and Stolar affirmed
applicants rights to their political and religious
beliefs, but nonetheless did little to clarify the state
of the law as a whole, and more recent cases provide
little help by way of additional clarity.
II.

In our Increasingly Divided Society, the

Potential for Abuse of Power by
Gatekeepers of the Bar Demands Tighter
Controls by this Court.

Mr. Browns case is hardly an isolated one. The

legal profession has become fair game for politically
motivated discipline on the basis of unpopular

12

viewpoints, especially religious ones. As our

citizenry grows increasingly polarized, the need for
this Court to set clear guidelines becomes all the
greater.
In most other cases, though, discipline is brought
to bear only after the subject has acted upon his
beliefs, or at least publicly expressed them. In Mr.
Browns case, Respondent has imposed the harshest
of discipline before he ever acted. Moreover, it has
done so by means of labeling him mentally unstable.
The offense is therefore all the more egregious.
For example, in Wyoming, a small town judge
faces removal from office for having told a reporter
that she could not perform same-sex marriage
ceremonies due to her religious beliefs. See Ken
McIntyre, Judge faces removal, $40K fine because of
her beliefs about marriage, THE HERITAGE
FOUNDATION, MAY 12, 2016, 2016, available at
http://dailysignal.com/2016/05/12/judge-facesremoval-40k-fine-because-of-her-beliefs-aboutmarriage/ (last accessed May 14, 2016).
In Oregon, Marion County Circuit Judge Vance
Day is under investigation by the Commission on
Judicial Fitness and Disability for refusing to
perform same-sex marriages. See Alisha Roemeling,
Marion judge says he wont perform same-sex
marriages, STATESMAN JOURNAL, Sept. 4, 2015, 7:29
a.m.,
available
at
http://www.statesmanjournal.com/story/news/2015/
09/03/marion-county-judge-vance-day-says-he-notperform-same-sex-marriages/71669492/
(last

13

accessed May 10, 2016). Judge Day, an outspoken

Christian, believes it would violate his conscience to
perform the ceremonies. In addition, under Oregon
law judges are not required to perform weddings,
and Judge Day has never even been asked to
perform a same-sex ceremony. See Christian Judge
Faces Ethics Charges for Marriage Views, CBN
NEWS,
Feb.
26,
2016,
available
at
http://www1.cbn.com/cbnnews/us/2016/February/Ch
ristian-Judge-Faces-Ethics-Charges-for-MarriageViews (last accessed May 13, 2016). Instead, like Mr.
Browns situation, Judge Day is being investigated
simply as a result of his beliefs and his speech, not
any action.
In Mississippi, Justice Court Judge Connie Glen
Wilkerson faced disciplinary charges for a letter to
the editor of a local weekly newspaper he had
written in his private capacity due to his Christian
viewpoint on the controversial topic of homosexual
rights. Although finally exonerated, Judge
Wilkerson was forced to take his case all the way to
the Mississippi Supreme Court. Mississippi Commn
on Judicial Performance v. Wilkerson, 876 So. 2d
1006 (Miss. 2004). Ironically, Mr. Brown was one of
the lawyers assisting Judge Wilkerson.
Outside the narrow confines of the law, it has
become almost routine to hear of sanctions imposed
against bakers, wedding photographers, and court
clerks for their conscientious objection to
participation in a same-sex wedding ceremony, of
boycotts against the likes of North Carolina and
Mississippi for adopting laws protecting freedom of

14

conscience, and of protests against those who try to

live out their faith.
This Court has noted and condemned the fact
that religious speech, in particular, has long been
singled out for censorship: Indeed, in AngloAmerican history, at least, government suppression
of speech has so commonly been directed precisely at
religious speech that a free-speech clause without
religion would be Hamlet without the prince.
Capitol Square Review & Advisory Bd. v. Pinette,
515 U.S. 753, 760 (1995) (Scalia, J.).6
[H]istory shows that speech is suppressed when
either the speaker or the message is critical of those
who enforce the law. Gentile v. State Bar of Nev.,
501 U.S. 1030, 1051 (1991). The actions of the
Indiana bar here arguably go beyond even
censorship of religious speech, invading the very
sanctum sanctorum of religious thought and belief
itself.
In Gentile, this Court counseled that
disciplinary rules governing the legal profession
cannot punish activity protected by the First
Amendment. Id. at 1054 (emphasis added). A

According to a recent news report, even news about

government censorship is itself covered up. See Tim Graham,
Networks, Major Papers Skip State Department Censorship of
Fox News Q&A Video, MRCNEWSBUSTERS, May 11, 2016, 8:27
p.m.,
available
at
http://newsbusters.org/blogs/nb/timgraham/2016/05/11/jen-psaki-gets-psnipped (last accessed May
12, 2016).
6

15

fortiori, the legal profession cannot punish mere

thoughts protected by the First Amendment. Yet
that is what the record suggests Respondent has
done to Mr. Brown. This discriminatory treatment
sets a dangerous precedent that this Court should
interdict.
CONCLUSION
For the foregoing reasons, the Court should grant
the writ and address the important issues
presented.

16

Respectfully submitted,
Thomas L. Brejcha
Jocelyn Floyd
Thomas More Society
19 S. LaSalle Street
Suite 603
Chicago, IL 60603
ph: 312-782-16803

May 16, 2016

Stephen M. Crampton
Special Counsel,
Thomas More Society
Counsel of Record
P.O. Box 4506
Tupelo, MS 38803
ph: 662-255-9439
smcrampton@hotmail.com