Posted on by L&R Forum

Around the Web

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

  • The Third Circuit heard oral arguments in Reilly v. City of Harrisburg, a case involving anti-abortion sidewalk counselors challenging a Harrisburg, Pennsylvania ordinance creating a 20-foot buffer zone around healthcare facilities including abortion clinics. The lower court had previously dismissed the suit for insufficient evidence of free speech and assembly rights violations.
  • In Erie v. Hunter, a Louisiana federal district court did not dismiss a case by a mental health detainee, Erie, who was allegedly forced to attend a Christian service. The court rejected the argument that defendant faced a “binary choice,” arguing there were “other options [Ms. Hunter] could have use [sic] to locate other staff” to supervise those not attending the service.
  • In Olympus Spa v. Armstrong, a Washington court dismissed a suit by a women’s spa challenging a law against gender identity discrimination. The spa argued that the law infringed on its religious and free expression rights, but the court held that the law was neutral and generally applicable, and dismissed the spa’s freedom of association claims.
  • In Anonymous Plaintiff 1 v. Individual Members of the Medical Licensing Board of Indiana, an Indiana state trial court has certified as a class action a suit contesting Indiana’s abortion restrictions. The plaintiffs, who have already been granted a preliminary injunction, argue that their religious beliefs permit or even mandate abortions in cases disallowed by Indiana law. The class has been defined as individuals in Indiana whose religious beliefs direct them to obtain abortions prohibited by Senate Enrolled Act No. 1(ss) but are unable to do so due to the Act.
  • The St. Isidore of Seville Catholic Virtual School has been approved to become the first publicly-funded religious charter school in the U.S., by a 3-2 vote from the Oklahoma Statewide Virtual Charter School Board, a decision that “caps months of debate over government support for sectarian education.” Americans United announced they are preparing a lawsuit to challenge the approval.
  • A dispute between Miami Beach and the Orthodox Jewish Congregation Bais Yeshaya D’Kerestir scheduled for trial in federal court has been settled, with Miami Beach agreeing to pay the congregation $1.3 million. The congregation argued that their property was being used for “private prayer,” not as a synagogue, and drew parallels to homeowners hosting parties. The city, however, presented evidence that the house was indeed functioning as a synagogue, including an industrial-size coffee urn and benches for up to 30 people.
Posted on by L&R Forum

Around the Web

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

  • In Bolden-Hardge v. Office of the California State Controller, the Ninth Circuit Court of Appeals reversed and remanded a federal district court’s dismissal of a suit by a Jehovah’s Witness who challenged California’s refusal to allow her to add a paragraph to the state-employee loyalty oath specifying that by signing it she is not giving up the right to exercise her religion, which requires that her primary loyalty be to God. The Circuit Court found that dismissal of plaintiff’s Title VII claims would permit states to legislate away any federal accommodation obligation.
  • In Shields of Strength v. U.S. Department of Defense, a Texas federal district court allowed a company that manufactures military personnel “dog tags” to move ahead with its First Amendment claims against the military for seeking to prevent the company from producing dog tags with Biblical or other religious references near symbols or phrases that the military had registered for trademark protection. 
  • In St. Michael’s Media, Inc. v. Mayor and City Council of Baltimore, a Maryland federal district court allowed a conservative media organization that usually criticizes the modern leadership of the Catholic Church to move ahead with free speech and freedom of assembly claims against the city of Baltimore and the management of a city-owned concert venue. Plaintiff’s claims grew out of the cancellation of a contract for plaintiff to hold a conference and prayer rally to coincide with the Fall General Assembly of the U.S. Conference of Catholic Bishops.
  • In Talukder v. State of New York, a New York federal district court allowed a Sunni Muslim applicant to the New York Department of Corrections Training Academy to move ahead with claims of free exercise, Title VII failure to accommodate, and disparate treatment. Plaintiff was an applicant who sought to wear a 3-inch beard for religious reasons, but the Academy was unwilling to permit any trainee to have a beard longer than one-eighth of an inch even though the DOCCS allowed uniformed staff to grow beards for secular reasons.
  • A woman looking to adopt a child has filed a law suit in an Oregon federal district court challenging the rule of the state’s Department of Human Services which states that a person seeking to adopt a child must agree to accept and support the sexual orientation and gender identity of any child placed with them. The complaint in Bates v. Pakseresht, alleges that the rule violates plaintiff’s free expression, free exercise, and equal protection rights since her Christian religious beliefs do not permit her to comply with this requirement.  
  • The governor of North Dakota signed House Bill No. 1136, which acts as North Dakota’s version of the Religious Freedom Restoration Act. The bill states that a state or local government entity may not treat religious conduct more restrictively than any secular conduct of reasonably comparable risk and must use the least restrictive means of furthering compelling government interests.
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 Marc O. DeGirolami

Inazu on the Idea of the Public Forum

John Inazu has posted a very thoughtful and interesting piece, The First Amendment’s Public Forum. The abstract and some rapid reactions to the piece follow:

The quintessential city park symbolizes a core feature of a democratic polity: the freedom of all citizens to express their views in public spaces free from the constraints of government imposed orthodoxy. The city park finds an unlikely cousin in the federal tax code’s recognition of deductions for contributions made to charitable, religious, and educational organizations. Together, these three categories of tax-exempt organizations encompass a vast array of groups in civil society. The resulting mosaic is neither thematic nor tidy, but it is in at least one sense, beautiful: the deductions, like the city park, enact the aspirations of a democratic polity. Organizations and ideas wither or thrive not by government fiat but based on the “values and choices of private givers.”

The city park is a traditional public forum under First Amendment doctrine, and the charitable, educational, and religious deductions under the federal tax code function much like a limited public forum. Between these poles lie numerous other governmental arrangements with similar purposes and functions: sidewalks, parking lots, public schools, websites, public libraries, vanity license plates, and student activity funds, to name a few. In each of these cases, private groups and individuals rely on government resources (financial or otherwise) to inculcate and express their ideas and their ways of life. The ideal of the public forum represents one of the most important aspects of a healthy democracy. It signifies a willingness to tolerate dissent, discomfort, and even instability. The distortion of that ideal represents one of the greatest challenges to First Amendment jurisprudence today. That distortion is partially attributable to two important doctrinal developments. The first is increased judicial reliance on purportedly “content-neutral” time, place, and manner restrictions. The second is the relationship between the public forum and the evolving government speech doctrine, under which the government characterizes messages advanced under the auspices of its financial and other resources as distinctively its own and not subject to First Amendment review. This essay suggests that one factor facilitating these developments is a gradual but unmistakable shift in the moorings of the public forum doctrine from the Assembly Clause to the Speech Clause. The public forum is a First Amendment doctrine, not a free speech doctrine. And we will only comprehend its purposes and its possibilities when we rediscover the values underlying the rights of the First Amendment.

This piece continues and amplifies on John’s important work on the freedom of assembly. I have often wondered (and I suspect John may also wonder) whether the increasing muscularity of speech doctrine–verging, in my own view, on what might reasonably called absolutism–has contributed (or is contributing) to the weakening of the other freedoms guaranteed by the First Amendment. One need not hold Robert Bork’s view of the speech clause to suspect that this is happening. One can see the phenomenon with respect to the religion clauses–for example, in the claim that corporations cannot “exercise” religion because corporations cannot “believe” anything, or have no “consciences” (that very claim about corporations was rejected by the Court as to speech itself, though Justice John Paul Stevens as well as most of the rest of the legal academy are still up in arms about it). John’s own relational account of the freedom of assembly emphasizes the value of congregation and consociation–of the act of gathering together for a social purpose–which is rather a distinct good than whatever speech concerns are at issue. One might add that the value of place–of having a place, and perhaps even (and more controversially?) of knowing one’s place–are important First Amendment considerations.

Posted on by Marc O. DeGirolami

Review of Books by Inazu and Zick

Over at The Book at the The New Republic on-line, there is an interesting review of two books dealing with, respectively, the freedom of assembly and free speech in public places: the one by John Inazu (Washington University St. Louis) (and which we noted here) and the other by Tim Zick (William & Mary).  The review is authored by Jeremy Kessler, a J.D./Ph.D. student at Yale.  John’s book is, I believe, more particularly interested in religious assembly, though I could be wrong about that.

Congratulations to John (and Professor Zick) on the very positive review!

Posted on by Marc O. DeGirolami

Inazu, “Liberty’s Refuge”

My friend John Inazu (Washington University St. Louis) has published Liberty’s Refuge: The Forgotten Freedom of Assembly (Yale 2011).  Warm congratulations to John for this wonderful work on a (before his book) understudied but vitally important liberty, which sometimes is teamed with religious liberty in constitutional cases.  The publisher’s description follows.

This original and provocative book looks at an important constitutional freedom that today is largely forgotten: the right of assembly. While this right lay at the heart of some of the most important social movements in American history—abolitionism, women’s suffrage, the labor and civil rights movements—courts now prefer to speak about the freedoms of association and speech. But the right of “expressive association” undermines protections for groups whose purposes are demonstrable not by speech or expression but through ways of being. John D. Inazu demonstrates that the forgetting of assembly and the embrace of association lose sight of important dimensions of our constitutional tradition.

UPDATE: John kindly informs me that he has made the entire text of his book available here for free.  You now have no excuse not to read it!