Finally, rather than meaningfully dispute the existence of the circuit splits Petitioners raise on First Amendment issues, BOLI primarily debates the merits of those claims, demonstrating they are important and worthy of this Court’s plenary review.
Despite BOLI’s suggestion that Petitioners acted due to Complainants’ sexual orientation rather than legitimate First Amendment concerns, see BIO20, it is undisputed that Petitioners’ beliefs are deeply held and bona fide, Pet.App.471.
BOLI next argues that “no circuit court has actually applied strict scrutiny under a hybrid-rights theory to overturn a neutral law of general applicability,” so “there is no true conflict.” BIO22.
BOLI contends that Petitioners “blithely assert” there should be no concern about practical consequences if Smith is overruled, BIO29, but Petitioners’ argument on this point was well- supported with citations to Justice Alito’s Fulton concurrence and other authorities, see Pet.29.
The Petition demonstrated that review is also warranted on Petitioners’ free speech claims, which implicate growing splits on whether free speech rights 3 By labeling Petitioners’ religious beliefs a “‘clear and present danger’” to Oregon’s interests, BIO25, BOLI continues the very same hostility toward religion present in earlier aspects of this case, further demonstrating that remanding to the agency was improper and that summary reversal is warranted.