Posted on by L&R Forum

Around the Web

Here are some important law-and-religion news stories from around the web:

  • In Abiding Place Ministries v. Newsom, a California federal district court allowed a church to move ahead with its Free Exercise, Freedom of Assembly, Establishment Clause, Free Speech and Equal Protection claims against San Diego County for enforcing Covid restrictions against public gatherings. However, the court held that the county’s public health officer had qualified immunity against damage claims because there was “no clear precedent” in 2020 that would have put the officer on notice that such restrictions were “clearly and definitively unconstitutional.”
  • An ex-deputy sheriff filed a lawsuit in a Washington federal district court alleging that Chelan County Sheriff’s Office employees pressured him to join the “‘alt-right’ militant” Grace City Church and to attend its twelve-week marriage counseling program. The complaint in Shepard v. Chelan County alleges violation of Title VII, the Washington Law Against Discrimination and the Establishment Clause.
  • Three anti-abortion protesters filed suit against the National Archives after its security officers required them to cover their pro-life t-shirts and remove pro-life buttons and hats while they were visiting the museum. The suit, Tamara R. v. National Archives and Records Administration, filed in the D.C. federal district court, was settled and a consent decree was signed which enjoined the National Archives from prohibiting visitors from wearing attire that displays religious or political speech.
  • In Grullon v. City of New York, a New York trial court held that the New York Police Department was arbitrary and capricious in its denial of a police officer’s religious objections to the Department’s Covid vaccine. The court determined that the police officer is entitled to employment with a reasonable accommodation of weekly Covid testing.
  • In New Brunswick v. His Tabernacle Family Church Inc., a trial court in New Brunswick, Canada refused to hold a church in contempt for a violation of Covid restrictions, stating that it was not unequivocally clear that the church knew it was in violation of a previous consent decree. After signing the consent decree, the church had moved its services to a commercial tent in order to avoid restrictions on gatherings in “public indoor spaces” but once the weather became colder, the church lowered the sides of the tent, which the Province contended created an enclosed space.
  • In Volokh v. James, a New York federal district court issued a preliminary injunction barring enforcement of New York’s Hateful Conduct Law against social media platforms. The court found that the social media platforms were likely to succeed in both their facial and “as applied” free speech challenges because the law both compelled “social media networks to speak about the contours of hate speech” and it chilled “the constitutionally protected speech of social media users”, without articulating a compelling governmental interest.
Posted on by L&R Forum

Around the Web

Here are some important law-and-religion news stories from around the web:

  • In Tingley v. Ferguson, the Ninth Circuit denied an en banc rehearing for challenges of free speech, free exercise, and vagueness to Washington State’s ban on conversion therapy on minors. The case was originally heard by a 3-judge panel, which upheld the ban.
  • In Gardner-Alfred v. Federal Reserve Bank of New York, the Southern District of New York held that two former employees could bring suit against the Bank for violations of Title VII, RFRA, and the Free Exercise Clause. The basis of the claims come from the Bank’s denial of a religious exemption from the Bank’s COVID vaccine mandate.
  • In L.B. ex rel Booth v. Simpson Cty. Sch. Dist., filed in the Southern District of Mississippi, a school district abandoned a policy that prohibited students from wearing masks with political or religious messages. The parties settled, and the school district will now permit the student to wear a mask that reads “Jesus Loves Me.”
  • In Scardina v. Masterpiece Cakeshop, the Colorado Court of Appeals issued a ruling on January 26, 2023, stating that the Colorado Anti-Discrimination Act did not infringe on Jack Phillips’ free exercise of religion (Phillips was the claimant in the different Masterpiece Cakeshop case decided by the Supreme Court in 2018). This case arose out of Phillips’ refusal to create a cake that celebrated and symbolized a gender transition because it would contravene his religious beliefs.
  • Indiana Supreme Court heard oral arguments in Members of the Medical Licensing Board of Indiana v. Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky, Inc. on January 19, 2023. The oral arguments dealt with a challenge to the state’s pro-life law, which prohibits abortion except in cases of rape, incest, fatal fetal anomalies, or when the woman’s life is at risk. Liberty Counsel filed an amicus brief on behalf of the National Hispanic Christian Leadership Conference defending the law.
  • Alabama Governor Kay Ivey issued Executive Order No. 733 on January 20, 2023, which requires a state executive-branch agency to enforce the Alabama Religious Freedom Amendment to the greatest extent practicable. For example, the order requires executive branch agencies to consider possible burdens on religious exercise when adopting administrative rules, and also to allow state employees to express their religious beliefs in the same manner as they would express non-religious views.  
Posted on by Mark Movsesian

Movsesian on 303 Creative

At First Things today, I report on last week’s oral argument in 303 Creative, the latest wedding vendor case to reach the Supreme Court–this time involving a web designer who does not wish to provide services for same-sex weddings. 303 Creative, like most such cases, presents a conflict between free speech, including religiously-motivated speech, and equality in the marketplace. Based on last week’s argument, I argue, it looks like speech will prevail. Here’s an excerpt:

Resolving [the web designer’s] claim requires the Court to answer a basic, conceptual question under the Court’s precedents: As applied to Smith’s web design business, does CADA regulate speech or conduct? If the former, CADA would have to satisfy a test known as “strict scrutiny.” Colorado would have to show that prosecuting Smith was “necessary” to promote a “compelling” state interest. By contrast, if the law regulates conduct and only incidentally affects speech, Colorado would have to satisfy a more lenient test known as the O’Brien standard. Colorado would have to show only that CADA “furthered” an “important” or “substantial” state interest unrelated to the suppression of speech.

At last week’s argument, Colorado’s lawyer argued that CADA is directed principally at conduct. Were Colorado to prosecute Smith, he explained, it would be because Smith had discriminated against customers based on sexual orientation, not because she expressed an opinion on same-sex marriage. Smith could not be required to praise same-sex marriage expressly—but she would have to design websites for all comers. Appearing on behalf of the Biden Administration as amicus curiae, Deputy Solicitor General Brian Fletcher agreed. Declining categorically to design websites for same-sex weddings, he told the justices, would be “a form of status-based discrimination properly within the scope of public accommodations laws.”

This argument appeared to persuade progressives like Justice Sonia Sotomayor—but not the Court’s conservatives. For example, Justice Neil Gorsuch stressed that Smith had said repeatedly that she would “serve everyone,” straight, gay, or transgender, and would decline to design websites for same-sex weddings no matter who requested them. She objected to expressing a message with which she disagreed, not to serving customers of different sexual identities. When it came to designing wedding websites, Gorsuch emphasized, “the question” for Smith wasn’t “who,” but “what.”

You can read the whole thing here.

Posted on by L&R Forum

Legal Spirits Episode 045: 303 Creative at SCOTUS Next Week

Next week, the Supreme Court will hear argument in 303 Creative LLC v. Elenis, an important case that pits free speech rights against anti-discrimination laws. A Christian web designer has challenged Colorado’s public accommodations law, arguing that the law will require her to design sites for same-sex weddings and convey messages with which she disagrees. In this episode, Marc and Mark explore several of the issues in the case, from concerns about ripeness and standing to matters of substance: free speech and compelled speech, same-sex marriage, antidiscrimination law, what distinguishes “messages” from “messengers,” and others. Listen in!

Podcast: Play in new window | Download

Subscribe: RSS

Posted on by L&R Forum

Around the Web

Here are some important law-and-religion news stories from around the web:

  • A petition for certiorari has been filed with the U.S Supreme Court in Arkansas Times, LP v. Waldrip (see prior posting). In the case, the Eighth Circuit sitting en banc upheld, against a free speech challenge, Arkansas’ law requiring public contracts to include a certification from the contractor that it will not boycott Israel. 
  • In Weiss v. Perez, a California federal district court allowed a tenured professor to move ahead against most of the defendants she named in a lawsuit, which alleged that the University had retaliated against her because of her opposition to repatriation of Native American remains. Professor Weiss has argued that the Native American Graves Protection and Repatriation Act and the California Native American Graves Protection and Repatriation Act violate the Establishment Clause by favoring religion over science. Due to this belief, Weiss claims San Jose State University has interfered with her research and limited her professional activities. 
  • In In re A.C. (Minor Child), an Indiana state appeals court upheld a trial court’s order removing from the home a sixteen-year-old transgender child who suffered from an eating disorder and emotional abuse due to their parent’s unwillingness to accept the child’s transgender identity. The parents allege that they could not affirm their child’s transgender identity or use the child’s preferred pronouns because of their religious beliefs. The court rejected the parents’ Free Exercise claims.
  • The EEOC announced that it has filed a Title VII and ADA suit against Global Medical Response, Inc. and American Medical Response, Inc., which operate one of the largest medical transport companies in the country. The suit alleges that the companies refused to accommodate employees in EMT and paramedic positions who wish to wear facial hair for religious reasons. 
  • The EEOC has reached a settlement in a religious discrimination suit it had filed against a Conway, Arkansas Kroger store for failing to accommodate two employees who refused to wear the company’s apron. The employees insisted that the symbol on the apron promotes the LGBT community, which the employees’ religious beliefs preclude them from affirming. Under the settlement, Kroger will pay each employee $20,000 in back pay plus $52,000 each in additional damages. 
Posted on by L&R Forum

Around the Web

Here are some important law-and-religion news stories from around the web:

  • The D.C. Circuit Court of Appeals heard oral arguments in Singh v. Berger. In the case, the D.C. federal district court refused to grant a preliminary injunction to three Sikh Marine recruits who wanted to prevent enforcement of the Marine’s uniform and grooming policies during recruit training while their case continues to be litigated. 
  • In Hardaway v. Nigrelli, a New York federal district court issued a temporary restraining order barring enforcement of the provision in New York law that prohibits possession of firearms at “any place of worship or religious observation.” The suit was filed by two clergy members who allege that, as leaders of their churches, they want to carry firearms on church premises to keep the peace. The court concluded that the state restriction violates the Second Amendment. 
  • Suit was filed in a Wisconsin federal district court challenging the city of La Crosse’s ordinance prohibiting medical and mental health professionals from engaging in conversion therapy with anyone under eighteen. The complaint in Buchman v. City of Law Crosse alleges that the ban on counseling minors to change their sexual orientation, gender identity, gender expression, or behaviors violates Plaintiff’s free speech and free exercise rights. 
  • Suit was filed in a California federal district court by two California State University professors challenging the University’s inclusion of discrimination on the basis of caste in its Interim Antidiscrimination Policy adopted in January. The complaint in Kumar v. Koester alleges that the term “caste,” as used in the Interim Policy, is unconstitutionally vague and the Interim Policy violates the rights of Plaintiffs under the First and Fourteenth Amendments. 
  • In a tentative decision, a California state trial court concluded that a bakery that refuses on religious grounds to furnish custom-designed cakes for same-sex weddings and instead refers customers to another bakery for such items does not violate the Unruh Civil Rights Act. In Department of Fair Employment and Housing v. Cathy’s Creations, Inc., the court held that because California’s Unruh Civil Rights Act is a neutral law of general applicability, the state did not violate Defendant’s free exercise rights. 
  • In L.F. v. S.C.R.L., the Court of Justice of the European Communities held that a private company may prohibit employees from wearing all visible signs of political, philosophical, or religious belief in the workplace. This would not constitute direct discrimination on the ground of religion or belief in violation of Council Directive 2000/78 so long as the company’s policy covers any manifestation of religious, philosophical, or spiritual beliefs without distinction.  
Posted on by L&R Forum

Around the Web

Here are some important law-and-religion news stories from around the web:

  • In Taylor v. Nelson, the Fifth Circuit held that Texas prison authorities who confiscated a female inmate’s hijab that exceeded the size permitted by prison policies could claim qualified immunity in a suit for damages against them. The court held that Plaintiff failed to identify a clearly established right that officials violated and that reasonable officials would not have understood that enforcing the policy on hijabs was unconstitutional. 
  • The Fifth Circuit recently heard oral arguments in Franciscan Alliance v. Becerra. In the case, a Texas federal district court permanently enjoined enforcing the anti-discrimination provisions of the Affordable Care Act and implementing regulations against Christian health care providers and health plans in a manner that would require them to perform or provide insurance coverage for gender-transition procedures or abortions. 
  • A class action Settlement Agreement was recently filed in an Illinois federal district court in Doe 1 v. NorthShore University HealthSystem. The suit was brought on behalf of approximately 523 employees who requested, but were denied, a religious exemption or accommodation from the hospital system’s COVID vaccination mandate. The hospital system will pay $10,330,500 in damages if the court approves the settlement. 
  • In Archdiocese of Milwaukee v. Wisconsin Department of Corrections, a Wisconsin trial court issued a declaratory judgment and permanent injunction requiring the Wisconsin prison system to allow Catholic clergy the opportunity to conduct in-person religious services in state correctional institutions. While the clergy were initially restricted due to COVID-19 concerns, the court concluded that once the prison system allowed some external visitors to enter correctional institutions, it was required to honor the clergy’s statutory privilege to do so ­– and refusal to do so violated Plaintiff’s free exercise rights under the Wisconsin Constitution. 
  • Seven clergy members in Florida have filed lawsuits contending that Florida’s 15-week abortion ban violates their free exercise, free speech, and Establishment Clause rights. 
  • France’s Constitutional Council last month, in Union of Diocesan Associations of France and others, upheld the constitutionality of several provisions of law governing religious institutions in France. The Council upheld the requirement that a religious organization must register with a governmental official in order to enjoy benefits available specifically to a religious association. The Council found that this did not infringe freedom of association and did not hinder the free exercise of religion. 
Posted on by L&R Forum

Around the Web

Here are some important law-and-religion news stories from around the web:

  • In Kennedy v. Bremerton School District, the U.S. Supreme Court held that a school district violated the First Amendment’s Free Speech and Free Exercise Clauses when the district disciplined a football coach for visibly praying at midfield following football games. Writing for the majority, Justice Gorsuch found that the coach sought to engage in private, sincerely motivated religious exercise and decided that the district could not bar this activity because of its own Establishment Clause concerns. In reaching this decision, the Court repudiated the Lemon test – which had been relied upon by the lower courts in deciding the case. 
  • In LaCroix v. Town of Fort Myers Beach, Florida, the Eleventh Circuit preliminarily enjoined a town’s ban on all portable signs. The ordinance was challenged by an individual who was cited for carrying a sign on a public sidewalk that conveyed his “religious, political and social message” that Christianity offers hope and salvation. 
  • In Apache Stronghold v. United States, the Ninth Circuit held that a proposed federal government land exchange in Arizona will not substantially burden Apache religious exercise in violation of RFRA. The court also held it will not violate the First Amendment because the Land Exchange Provision is a neutral and generally applicable law. 
  • In Halczenko v. Ascension Health, Inc., the Seventh Circuit affirmed the denial of a preliminary injunction that had been sought by a pediatric critical care specialist. The specialist was fired from his hospital position after he refused, on religious grounds, to comply with the hospital’s COVID vaccine mandate. The court concluded that Plaintiff had shown neither irreparable injury nor inadequate remedies through a Title VII action. 
  • In Mishler v. Mishler, a Texas state appellate court held that there is neither a state nor a federal free exercise issue with a divorce decree, based on the parties’ prior agreement that the husband would deliver certain property to the wife only upon the wife’s acceptance of a “Gett” (a Jewish divorce document that the wife must accept for the divorce to be valid under Jewish religious law). 
Posted on by Mark Movsesian · 1 Comment

Have Americans Given Up on Free Speech?

At Law and Liberty today, I have a review essay on Jacob Mchangama’s new book, Free Speech. Mchangama argues that the United States, and the world generally, needs to recommit to free speech principles before it is too late. I argue that the real problem is not a failure to believe in free speech, but a lack of social trust. Here’s an excerpt:

It is a striking feature of American life in the first quarter of the 21st century that we have somehow created a culture in which everyone feels aggrieved. This is especially true when it comes to free speech. Both conservatives and progressives believe their opponents are out to silence them—not just beat them in debates and prevail against them in elections, but intimidate them, put them on mute permanently, eliminate any possibility of resistance. Many on each side see the other as not simply wrong, but ill-motivated and dangerous, an existential threat to be defeated before it is too late.

This state of affairs is more the norm in American history than we care to admit. Perhaps because we see ourselves in providential terms—“the last best hope of earth,” as Lincoln said—Americans always have been sensitive to threats our democracy faces and often have worried about enemies within spreading “disinformation.” Eras of Good Feeling occur relatively rarely. Even so, the level of recrimination just now seems quite high, and many Americans apparently believe we must silence our opponents before they succeed in silencing us.

In Free Speech: A History from Socrates to Social Media, Jacob Mchangama maintains that a renewed commitment to free expression can help us through these perfervid times. Mchangama, a lawyer and the founder of Justitia, a human-rights organization in Denmark, has written a programmatic history that “connect[s] past speech controversies with the most pressing contemporary ones.” Today’s debates about free expression recapitulate those of long ago, he believes, and just as our ancestors did, we must defend the right to speak against those who would take it away.

To write a comprehensive history like this one is an ambitious undertaking, and Free Speech is a mixed success. Mchangama writes engagingly and has done his research. The chapters on the Internet and social media are especially good. But even at 500 pages, a history that spans thousands of years and many civilizations is bound to be a bit superficial at times. Moreover, as he himself recognizes, tolerance for others’ speech depends as much on culture as it does on law—and in today’s polarized, distrustful America, we are less and less likely to give our opponents the benefit of the doubt and let them have their say even if the law permits it.

You can read the whole essay here.

Posted on by L&R Forum

Around the Web

Here are some important law-and-religion news stories from around the web:

  • The U.S. Supreme Court grants cert in 303 Creative LLC v. Elenis. The grant of cert was limited to the question of “[w]hether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.”
  • In Mahoney v. United States Capitol Police Board, a clergyman challenged traffic regulations that barred demonstrations by twenty or more people at locations near the U.S. Capitol. While the D.C. federal district court rejected Plaintiff’s Free Exercise and RFRA challenges, it allowed him to move forward with his selective enforcement and free-association claims.
  • In Christian Medical & Dental Associations v. Bonta, suit was filed by an organization of Christian healthcare professionals challenging the current version of California’s End of Life Options Act (EOLA). Plaintiffs allege that changes made to EOLA last year remove previous protections and now require doctors to participate in assisted suicide in violation of their religious beliefs.
  • In Chamberlain v. Montoya, a New Hampshire federal district court dismissed the complaint after the parties agreed to settle. The settlement allows the Manchester Veterans Affairs Medical Center to keep a Bible as part of their “Missing Man Table;” however, the organization will now also allow for the sponsorship of a generic “Book of Faith.”
  • The Missouri Religious Freedom Protection Act has won first-round approval in the Missouri House of Representatives. If enacted, the bill would prevent public officials from shutting down meetings or services held by religious groups.
  • Alabama Gov. Kay Ivey demands answers from the Alabama High School Athletic Association after the Oakwood Adventist Academy’s boys basketball team was forced to forfeit a semifinal game in the state tournament due to their observance of the sabbath.
  • Colombia’s highest court has voted to legalize abortion until the twenty-fourth week of pregnancy.
  • The Judicial Selection Committee of Israel has appointed the first Muslim to a permanent seat on Israel’s Supreme Court.