The U.S. Supreme Court ruled 6-3 in 303 Creative LLC v. Elenis to uphold the First Amendment right of a digital designer not to be compelled to write, design, and create websites that violate her beliefs.
Protect The 1st applauds the Court’s decision and the reasoning behind it. Despite the religious roots of the appellant’s beliefs, this is fundamentally a case about the free exercise of speech. The Court correctly decided that web design is an expressive industry, and that no writer should be compelled to write something to which they object.
Lorie Smith owns 303 Creative LLC, a web design company she wanted to expand into the wedding industry. But 303 Creative’s expansion ran headlong into the State of Colorado’s Anti-Discrimination Act (CADA), which would have required her to design websites for same-sex weddings in violation of her religious beliefs. Smith and 303 Creative lost before a U.S. District Court and the Tenth Circuit Court of Appeals before being heard in oral arguments before the Supreme Court last year.
In a ringing defense of speech, Justice Neil Gorsuch wrote in the majority opinion of the inviolability of free speech under the Constitution. The majority opinion states:
“A hundred years ago, Ms. Smith might have furnished her services using pen and paper. Those services are no less protected speech today because they are conveyed with a ‘voice’ that resonates farther than it could from any soapbox.”
The Court noted that the Tenth Circuit, which ruled against Smith, had reasoned that Smith’s speech was involved in this case, but that “Colorado could compel speech from Ms. Smith consistent with the Constitution.” The majority concludes that First Amendment precedents “teach otherwise.”
For those who are inclined to see this ruling as the beginning of a discriminatory approach to services, Justice Gorsuch fleshed out the consequences if the Court were to uphold the lower court’s logic.
“Under Colorado’s logic, the government may compel anyone who speaks for pay on a given topic to accept all commissions on that same topic—no matter the underlying message—if the topic somehow implicates a customer’s statutorily protected trait … Taken seriously, that principle would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty.”
Justice Gorsuch then painted a convincingly realistic dystopian outcome for people on all sides, quoting a dissenting judge on the Tenth Circuit.
“The government could require ‘an unwilling Muslim movie director to make a film with a Zionist message,’ or ‘an atheist muralist to accept a commission celebrating Evangelical zeal,’ so long as they would make films or murals for other members of the public with different messages. Equally, the government could force a male website designer married to another man to design websites for an organization that advocates against same-sex marriage.”
Justice Gorsuch made it clear that there are sharp limits for this ruling, one that pertains to speech and expressive industries.
“[W]e do not question the vital role public accommodation laws play in realizing the civil rights of all Americans …”
Quoting a prior ruling that public accommodation laws “vindicate the deprivation of personal dignity that surely accompanies denials of equal access to public establishments,” Justice Gorsuch noted that Smith’s “voice is unique; so is everyone’s. But that hardly means a State may coopt an individual’s voice for its own purposes.”
Protect The 1st agrees with the Court’s reasoning and urges people on all sides to take the same cool look at the consequences that would have flowed from an alternate ruling.
One doesn’t have to agree with a particular belief to agree with the principle that speech should never be coerced. The Court’s opinion provides a narrow exception, one to be kept within the boundaries of the exercise of speech.
Groff v. DeJoy: Protect The 1st Applauds SCOTUS Decision to Revive Postal Worker’s Request for Religious Accommodation
The U.S. Supreme Court today unanimously revived the case of a former postal employee, Gerald Groff, an evangelical Christian who claims his rights under Title VII of the civil rights law were violated when the Postal Service denied his request to refrain from working on Sunday.
In oral argument in April, the Justices had focused on how much disruption and hardship an employer would have to suffer in order to justify denying an employee a religious accommodation. In today’s ruling, the Court threw out the prevailing standard that businesses shouldn’t be required to suffer more than “de minimus” harm from a religious accommodation. Instead, the Court held that a business or other employer must accommodate a religious practice unless the accommodation would create a “hardship” that is “substantial in the overall context of an employer’s business.”
Writing for the unanimous Court, Justice Alito also made clear that the range of cognizable hardships is narrow: “An employer who fails to provide an accommodation has a defense only if the hardship is ‘undue,’” he wrote, “and a hardship that is attributable to employee animosity to a particular religion, to religion in general, or the very notion of accommodating religious practice cannot be considered ‘undue.’”
Justice Alito also wrote that it is not enough for an employer to conclude that forcing other employees to work overtime would constitute an undue hardship. “Consideration of other options, such as voluntary shift swapping, would also be necessary.”
“In throwing out the lower court ruling, the Supreme Court today took a major step toward widening respect for religious liberty,” said Gene Schaerr, general counsel of Protect The 1st. “In this unanimous ruling, the Justices made clear that, absent serious harm to the actual practice of a business, Title VII – which reflects in the private sphere the First Amendment’s protection for free exercise of religion in the public sphere – requires employers to respect an employee’s religious needs.”
State by State, School Choice Movement Sweeps – and Falters
What’s behind the mushrooming success of the school choice movement? Why is school choice spreading like a prairie fire, from Oklahoma’s recent refundable school tuition tax credit, to major expansions in recent years from Florida to Utah, from Arizona to West Virginia?
This movement is fueled by a desire to bring competition to the often disappointing – and in some cities, alarmingly bad – performance of public school systems. But something else is also at play: school choice fulfills the guarantees and values of the First Amendment writ across generations. From coast to coast, parents are expressing their desire to transmit their values and beliefs through the choice of state-accredited private schools.
But with success comes inevitable pushback and disappointment.
Protect The 1st praised Democratic Gov. J.B. Pritzker of Illinois during the election season last year for supporting “The Invest in Kids Act,” which provides a tax credit for thousands of children to avoid public schools with decades-long records of failure. But the goal of a viable state-supported choice alternative for Illinois families has yet to be realized. Under political pressure from the teachers union, and unfounded fears public schools would be short-changed, the Illinois legislature killed the program – consigning thousands of children to return to dysfunctional public schools.
Protect The 1st also had high hopes for Texas, where Republican Gov. Greg Abbott pushed the legislature in Austin to pass a statewide school choice bill. Conservative Republicans in the Texas House, however, killed the measure out of fear that a school choice program would divert funds away from rural public schools.
Such fears about school choice are unfounded.
School choice doesn’t degrade public schools – it improves them. Randomized control trials of voucher programs found moderate evidence of improvement in academic achievement from private school vouchers – a welcome result given America’s persistently mediocre place in international school rankings. Moreover, out of 28 studies that explored the causal relationship between school choice and the performance of public schools, 25 found that school choice improves educational attainment in traditional school systems.
“In terms of social-scientific validity, that’s a slam dunk,” writes Alexander William Salter, economist at Texas Tech University.
What about Republicans’ fears about the impact of school choice on rural schools?
States like Arizona and Florida that have expansive school choice policies have witnessed an increase both in rural private-school enrollment and public-school performance. Since the enactment of state school choice policies, Arizona’s rural schools have increased performance in students’ fourth- and eighth-grade reading and math scores, while the performance of rural schools nationwide has declined.
The critical role school choice can have in young lives explains why Sen. Tim Scott (R-SC) called school choice a “civil rights issue.” And it explains the brave stand of Democratic Gov. Josh Shapiro of Pennsylvania who said he is open to school choice because:
I believe every child of God deserves a shot here in the Commonwealth of Pennsylvania, and one of the best ways we can guarantee their success is making sure every child has a quality education.
Last week, the U.S. District Court for the Western District of Washington at Seattle handed down a ruling that drew a sharp line between constitutionally protected speech and acts of vandalism on public and private property.
The case, Tucson v. City of Seattle, had to do with a city ordinance that held a person is guilty of property destruction if he or she intentionally damages the property of another and writes, paints, or draws on any public or private building, structure, or personal property owned by any other person. Though a seemingly straightforward proscription on public or private acts of vandalism, overly broad and vague language within the ordinance made it susceptible to legal challenges.
What about washable paint or chalk? What about some public spaces, like sidewalks, on which people routinely chalk messages?
The case involved plaintiffs who wrote political messages critical of the Seattle police department in charcoal both on public sidewalks and on temporary walls outside the police precinct. The court preliminarily enjoined the ordinance, concluding that “Plaintiffs have demonstrated a strong likelihood of success on the merits of their First Amendment overbreadth argument.”
The problem with the ordinance is that it, as the court stated, is so broad that it “criminalizes innocuous drawings (from a child's drawing of a mermaid to pro-police messages written by the Seattle Police Foundation that can hardly be said to constitute ‘visual blight’ and which would naturally wash away in the next rain storm.”
We are pleased by the court’s ruling and agree that in cases involving reasonable restrictions on the First Amendment, such as the defacing of property, there needs to be clearly-defined boundaries that give maximal protection for free expression. Without these protections, laws risk curtailing a host of valid speech.
Such was the case of a 13-year-old girl in 2019, who inadvertently used spray paint instead of washable chalk paint during a climate protest at Seattle City Hall. A man was also arrested in conjunction with the incident for mistakenly providing the girl the wrong kind of paint. The girl was eventually released to her parents, but not before the Seattle Police Department was criticized for arresting her instead of using the incident as a teachable moment. Some felt that incidents where damage is clearly not intended, if the girl had used the correct washable spray paint, should not receive the same severity as other clearly malicious actions. Others point to the damage, which is egregious.
Going forward, legislators should clearly define terms and limits when drawing the line between First Amendment activities and vandalism.
Information consumers no doubt face more “noise” in public channels than ever. A new article by Prof. Justin (Gus) Hurwitz suggests a novel, but misguided, approach to regulating speech – one that reflects a new spirit of hubris in many legal, academic, and political circles.
The article, dubbed “Noisy Speech Externalities,” presents something of a counterargument to Justice Holmes’ dissent in Abrams v. United States, which introduced the idea that more speech is the best answer to bad speech – what he called a “free trade in ideas.” In light of recent scholarship, free and unregulated speech seems to some to be too quaint for our times.
“Consumers of information face a glut of information that overwhelms their ability to process it all,” Hurwitz argues. Excessive “noise,” he suggests, harms the underlying goal of allowing unfettered speech because people become too confused to filter out the legitimate information.
Hurwitz has a solution to this “market failure” in speech. He wants to utilize an EPA-like pollution control framework that would require social networks to use “best available” content moderation technologies that would filter out speech that muddies the public discourse. Who decides whether some speech should be silenced as “pollution” or “noise” remains conspicuously unclear.
We should, it seems, just leave those questions to the “experts” and their “best available” algorithms.
Hurwitz draws on Claude Shannon’s “information theory,” which posits that a signal-to-noise ratio governs the extent to which a listener may distinguish good information from bad information. In other words, the more noise, the less discernible a signal. No question, this is the reality of social media today.
What Hurwitz fails to reckon with is the practical application of his theoretical framework. In arguing that excessive speech constitutes a market externality meriting a gag order, Hurwitz suggests that post-grad tech workers should be the arbiters of our civil discourse, with virtually no constraints on their power. This, he says, should be the contingent basis upon which Section 230’s liability shield is applied.
Speech theorists of this sort seem to lack a basic appreciation for the efficacy of speech over time. Surely, the revolutionary mobs who protested the Stamp Act were “noisy.” So, too, were civil rights demonstrators whose cacophonous outcries muddled the signal-to-noise ratio in the 1960s.
Passionate, inflamed speech may result in short-term discomfort; in the long run, it’s still the only way to build consensus for or against a starkly new proposition. Witness the shifting debate on the origins of covid, or the efficacy of masks and lockdowns. Applying outmoded “command-and-control” regulatory solutions is sure to repress valuable insights.
This paper has glimmers of the thinking of Marxist philosopher Herbert Marcuse. In his influential essay, Repressive Tolerance, Marcuse argued for the censorship of ideas and the repression of people who advocate positions that could stymie what to him was the clear Marxist direction of history. “Suppression of the regressive ones,” Marcuse wrote, “is a prerequisite for the strengthening of the progressive ones.”
Can one concoct a turn of phrase more thoroughly Orwellian than “repressive tolerance”? In a similar though less strident vein, Hurwitz suggests that social media organizations should make First Amendment policy decisions based on their own vague – and likely biased – interpretations of what constitutes a vibrant marketplace of ideas with an appropriate noise level.
There may well be a better answer on social media discourse and content moderation. The best answer of all is quality education. Better schooling is the missing piece needed to make consumers more discerning. The best information filters are the ones we carry in our heads.
Applauds Reps. Kiley and Raskin, and Sens. Wyden and Lee, for Leadership in Introducing Important Bill
The PRESS Act – Protect Reporters from Exploitive State Spying Act – was introduced in the U.S. House and Senate this morning.
This legislation would limit the ability of prosecutors to expose the sources and notes of journalists in federal court. While 49 U.S. states have such press “shield laws,” the federal government has no such protections. This has led to federal intrusions into the records of the Associated Press, The Washington Post, and The New York Times, as well as advocacy journalists on the left and right.
The PRESS Act had previously passed the House with unanimous, bipartisan support in September 2022. Today, it was introduced by Rep. Kevin Kiley (R-CA) and Rep. Jamie Raskin (D-MD), and in the Senate by Sen. Ron Wyden (D-OR), and Sen. Mike Lee (R-UT).
“Support for the PRESS Act sweeps across ideological divisions in both houses of Congress because it is widely recognized that the basic liberties of all are at stake,” said Bob Goodlatte of Virginia, former Chairman of the House Judiciary Committee and Senior Policy Advisor of Protect The 1st. “At a time when voters and constituents in both parties are concerned about the potential for federal power to be abused and misused, passing the PRESS Act into law this year should be a point of pride for any incumbent.”
Rick Boucher, former Virginia congressman, member of the House Judiciary Committee, and now Senior Policy Advisor of Protect The 1st, also stressed the need to pass this legislation in 2023. He was also the lead sponsor of a forerunner bill, the federal press shield legislation that passed the House in 2007 and 2009.
“Journalists have been held in contempt and jailed for refusing to reveal their confidential news sources,” Boucher said. “When big scandals, corruptions, and misdeeds that harm the public interest come to light, it is usually because some brave soul on the inside was willing to speak to a reporter.
“Let’s protect that whistleblower,” Boucher said. “And let’s protect that journalist as well. By doing so, we protect all our rights.”
“While every one shall sit in safety under his own vine and fig tree”
The First Amendment of the Constitution guarantees the free exercise of religion, just as it forbids the official establishment of a religion. The latter, by implication, protects the free expression of all religions.
President George Washington made this clear in his famous letter to a Rhode Island synagogue: “May the Children of the Stock of Abraham, who dwell in this land, continue to merit and enjoy the good will of the other Inhabitants; while every one shall sit in safety under his own vine and fig tree, and there shall be none to make him afraid.”
What does it say about us that 18th century America was a safer place for worship than it is today? In 2023, we can only yearn for the days when houses of worship were seen as sanctuaries by all. Friday’s conviction of a 50-year-old hater for the killing of 11 worshippers at the Tree of Life synagogue in 2018 is a reminder how just much our free exercise of religion is endangered in the most basic of ways.
The largest such shooting of a house of worship occurred in Sutherland Springs, Texas, when a deranged man killed 26 worshipers, from ages 5 to 77, in 2017. Two years before that, a white supremacist killed nine worshippers at a prayer meeting at the Emanuel African Methodist Episcopal Church in Charleston, South Carolina. There has been violence and threats since against churches, synagogues, and mosques.
Somehow, as a nation, we must recognize that the free exercise of religion must begin with the most basic right of all – the right to live to worship freely.
The U.S. Press Freedom Tracker reports that the overwhelming majority of police arrests of journalists occur while they are reporting on ongoing protests. When journalists are arrested, they often lose access to their phones and their computers. The potential for police review of the content stored on their cameras makes journalists particularly vulnerable targets.
For this reason, reporters have begun writing what are known as “legal support numbers” – names and phone numbers of their attorneys -- on their inner arms or bodies. After all, one’s contact lists aren’t much use if one’s phone is confiscated or destroyed.
However, criminal prosecutors are now starting to argue that writing contact information on your body prior to attending a protest is evidence of criminal intent. This is because not only journalists are writing legal support numbers, but so too are protestors and activists. The argument is that, if a person is writing numbers on their body which would only be useful if they is jailed, then that person reasonably expects they will get into an altercation with the police. The outcome would be to effectively criminalize legal support numbers.
Freedom of the Press Foundation argues that if prosecutors succeed in criminalizing legal support numbers for protesters, it’s just a matter of time before the same arguments are made against journalists. For that reason, more than 40 organizations are seeking to challenge prosecution arguments against legal support numbers on the basis that criminalizing them would violate the First Amendment as well as the Sixth Amendment right to legal counsel.
The National Lawyers Guild, leading this coalition, states that “[p]eople write these numbers on their arms in preparation for demonstrations precisely because they know they may be unjustly detained, and because they know that police use mass arrest as a form of crowd control that is calculated to disrupt protected speech.”
Protect The 1st is alarmed to see prosecutors targeting Americans for taking steps to ensure their access to legal counsel in the event they are arrested.
When the charges brought against arrested protestors can include domestic terrorism, access to counsel is vital. It also has the added benefit of being a constitutional right. Journalists fulfill a vital role in our democracy, and assuming guilt simply for writing a phone number will only serve to chill speech and undermine our First Amendment rights.
PT1st looks forward to further developments in this story, and in these cases.
A Failure of “Prescribed Messaging”
Controversial new realities in American life often require a period of discussion on how to accommodate them and how to square them with existing paradigms. It’s an important precursor to social progress and a fundamental part of existing in a pluralistic society founded on free and open debate.
The issue of transgender athletes is a relatively new one. Trans athletes have every right to compete in sports. So, too, do biological women who endure hard work and sacrifice to win in swim competitions, often with scholarships at stake. To the extent a collision of rights exists here, it can only be resolved by discussing the issue freely and without fear of reprisal.
Yet, when respected voices are silenced in furtherance of a particular agenda, debate – and, by extension, progress and resolution – becomes impossible. Consider the case of Dr. Michael Joyner, a renowned physiologist and professor of anesthesiology at the Mayo Clinic who studies male and female athletes. Earlier this year, Joyner was subjected to disciplinary action for comments he made to the New York Times in an article about transgender swimmer Lia Thomas.
“There are social aspects to sport,” he said, “but physiology and biology underpin it. Testosterone is the 800-pound gorilla.”
In a scathing email, a Mayo Clinic administrator responded to Joyner’s perceived affront with a formal reprimand, an unpaid suspension, the denial of an annual salary increase, and the overt threat of termination – all for the apparent crime of conveying scientific information related to one of his core competencies. Specifically (bordering on satirically), the email cites Joyner’s failure “to communicate in accordance with prescribed messaging.” (The Clinic also took issue with Joyner’s use of “idiomatic language.”)
This is important because the Mayo Clinic is one of the world’s leading medical institutions and the top-ranked hospital in the country according to U.S. News and World Report. As an important hub for academic medical research, its doctors are regularly called upon to offer insight into difficult, health-related topics with national implications. In 2020, the Clinic adopted a “Freedom of Expression and Academic Freedom Policy,” which includes the right to “discuss and present scholarly opinions and conclusions without fear of retribution or retaliation if those opinions and conclusions conflict with those of the faculty or institution.”
While the Mayo Clinic is a private institution with a First Amendment right to speak as it wishes, the organization’s actions against Dr. Joyner plainly conflict with its own policies and are further inconsistent with vigorous, science-based academic debate. Punishing a medical professional for offering valid, scientific statements that happen to clash with emerging or trending social mores is wrong – and will have a chilling effect on science, speech, and academic freedom going forward.
If we are to honestly address the difficult topic of transgender athletic competition – without, for example, simply resorting to knee-jerk, blanket bans, it is incumbent on us to allow a robust debate and hear from all sides, including and especially those with pertinent knowledge. It’s a reality – and a requirement – of our American experiment.
The approach of the Fourth of July reminds us once again that vigilance is the price of freedom. A new report from the U.S. Department of State puts that duty into stark relief, illustrating the horrific toll that accompanies the abdication of human rights and the proliferation of religious bigotry and intolerance abroad.
The annual survey on religious freedom, submitted to Congress under the requirements of the Religious Freedom Act of 1998, documents continued and worsening persecution of religious minorities in a variety of countries around the world.
As Secretary of State Anthony Blinken said: “Governments in many parts of the world continue to target religious minorities using a host of methods, including torture, beatings, unlawful surveillance, and so-called re-education camps.” If your mind goes straight to China’s ongoing persecution of its Muslim Uyghur minority, you’re right on the mark.
But China is far from the only serial abuser of human rights and religious freedom on the global stage. The new report is a tough read – a compendium of horror stories that illustrates the world of difference between those nations that value the free exercise of religion and those that do not. Below, find a few of the biggest takeaways.
When it comes to our trading partners, China remains the biggest human rights offender. However, India is also called out in the report as a habitual violator of religious liberty, with a range of documented, targeted attacks against religious minorities and a majority of its 28 states affirmatively prohibiting religious conversion by law.
The United States is unique in its radical protections for the free exercise of religion. We are duty-bound and bound by law to respect our differences, despite not-infrequent attempts of overweening bureaucrats to diminish that mutual respect. As we look forward to celebrating Independence Day, we say to “ bigotry no sanction, to persecution no assistance.”
And we can reflect on how fortunate we are to have the First Amendment as a shield against religious bigotry.
U.S. Ed Dept Balances First Amendment Principles in Revised Guidance on Prayer, Religious Activity in Schools
The founders left us with a balancing act on religion: the First Amendment guarantees the free exercise of religion, but forbids the government establishment of one. On the whole, an updated policy from the Biden Administration’s Department of Education does a good job of explaining – and promoting – that balance in its new guidance for state and local education agencies on what is, and what is not, permitted in prayer and religious expression in elementary to secondary schools.
Comparing the additions and deletions of this policy from the Trump administration’s version reveals – as one might expect from a left of center administration – added emphasis on the “no establishment” clause. But the new policy contains no shocking departures from traditional constitutional protections. Instead, it doubles down on the distinction between religious expression that is government-sponsored, and that which is privately expressed.
After noting Supreme Court jurisprudence that “it is no part of the business of government to compose official prayers for any group of the American people,” the updated policy declares that “nothing in the First Amendment, however, converts the public schools into religion-free zones, or requires students, teachers, or other school officials to leave their private expression at the schoolhouse door.”
Somewhat defensively, the policy notes that the “principles outlined in this updated guidance are similar” to the 2020 guidance. The new policy clearly responds to the U.S. Supreme Court’s Kennedy v. Bremerton School District opinion (2022), aka “the praying coach case,” in which the Court upheld the right of a coach to pray on a football field after a game.
It cautions that schools have some right to discipline a schoolteacher, coach, or other employee for improper speech. It particularly empowers schools to discipline teachers who “pressure or encourage” students to join private prayer. “However,” the policy adds, “not everything that a public-school teacher, coach or other official says in the workplace constitutes governmental speech, and schools have less leeway to regulate employees’ genuinely private expression.”
The new policy upholds the right of teachers and other school employees to meet for prayer before school or during breaks. It upholds the central place religion has held in music, history, and literature. It allows philosophical questions concerning religion, the history of religion, comparative religion, religious texts as literature, and the role of religion in the history of the United States. It recognizes that much classical music has religious themes, which is no bar to the classics being played or sung by students.
The updated policy affirms the right of students to “express their beliefs about religion in homework, artwork, and other written and oral assignments free from discrimination based on the religious perspective of their submissions.”
Most commendably, the policy calls for the teaching of these twin First Amendment principles as an “opportunity to assist America’s youth in developing an understanding of these constitutional protections as they apply to people of all faiths and no faith and an appreciation for the core American values and freedoms that undergird them.”
In an age of culture wars, it is refreshing to see a policy from a Republican administration revised by a Democratic administration with stronger emphasis – as you would expect -- on government neutrality, while maintaining the enduring respect for religious freedom rooted in the U.S. Constitution.
The Pines Church in Bangor Maine, after noticing that many of its congregants lived in nearby Hermon, decided to make the move to this small town; however, Hermon (population 6,461) has a scarcity of available rental space. After searching around, The Pines Church turned to leasing space from the local high school as an after-hours, weekend option for worship services.
This seemed a no-brainer. After all, a number of groups rent space from the local school district, including Black Bears Basketball, Hermon Recreation, the Boy Scouts, the Girl Scouts, and various baseball clubs. To show support to the community, the church offered to pay $400 above the original price.
After filing the request form, the church received a questionnaire from Superintendent Micah Grant, a member of the school board. Grant forwarded questions from a school board member:
After receiving responses it regarded as disappointing, the school board rejected the church’s application for a six-month or a year-long lease. The Pine Church responded by suing to protect its First Amendment right to the free exercise of religion, with equitable treatment under the law.
“Public institutions that seek to lease their facilities for revenue should not be able to discriminate based on religious or political conviction,” Mariah Gondiero, an attorney for Advocates for Faith & Freedom, said in a statement.
This small-town drama is just one manifestation of a controversy playing out across the United States, one in which traditional views on sexuality conflict with public mandates on “diversity, equity, and inclusion.” This is the core of a legal struggle in California, where a school district is fighting in court to enforce its ban on the Fellowship of Christian Athletes as a recognized student group, all because that organization adheres to traditional beliefs.
As a matter of law, traditional religious beliefs are protected under the free exercise of religion clause in the First Amendment. Given this constitutional basis, Protect The 1st expects the courts to side with The Pine Church. But continuous clashes like this will not be solved by law alone. This is a cultural issue in which a little dialogue might work wonders.
Dialogue is needed because it sometimes seems as if many public officials hold a caricature of traditional religions as being just an inch away from hateful groups like the infamous Westboro Baptist Church. Whatever one’s beliefs about traditional marriage, it bears noting that it is not just evangelical Christians who hold this belief, but also millions of Roman Catholics, Orthodox Jews, and Muslims. In our experience, most religious groups are the opposite of hateful, welcoming all comers, charitable, and tolerant in the extreme.
Beyond the lawsuits and the constitutional issues at stake, it would behoove those in positions of authority to recognize that one can disagree with traditional beliefs while respecting our fellow Americans’ right to hold them.
That is exactly what Congress did when it passed the Respect for Marriage Act, signed into law by President Biden in December 2022.
With the vote of every congressional Democrat and many Republicans, that law not only protected same-sex marriage in statute, but also expressly affirmed that those who hold traditional beliefs on that subject should not be treated as bigots. Congress declared:
“Diverse beliefs about the role of gender in marriage are held by reasonable and sincere people based on decent and honorable religious or philosophical premises. Therefore, Congress affirms that such people and their diverse beliefs are due proper respect.”
Mashaud v. Boone, Court Opinion Cites Eugene Volokh, Protect The 1st
In October, famed legal scholar and law professor Eugene Volokh demonstrated to an en banc hearing of the highest court in the District of Columbia that a Washington, D.C., anti-stalking statute that outlaws communications that inflict “significant mental suffering or distress” is overbroad, and thus violates the First Amendment.
Today, the D.C. Court of Appeals issued an opinion in Mashaud v. Boone in agreement with Volokh, who represented Protect The 1st as an amicus in this case. The court also agreed with Volokh’s contention that the court should narrow the law to speech that fits within First Amendment exceptions long recognized by courts – threats, obscenity, defamation, fraud, incitement, and speech integral to criminal conduct.
The law in this case, D.C.’s anti-stalking statute, “prohibits any speech that one should know would cause another to feel ‘seriously alarmed, disturbed, or frightened” or suffer “emotional distress.” The court vacated a lower court ruling that held an aggrieved husband liable for emails and social media posts that embarrassed a man who had conducted an extramarital affair with his wife.
The court based its reasoning in part on demonstrations by Volokh, Protect The 1st, and other amici who “argue the statute is constitutionally overbroad and would need to be struck down if it is not susceptible to a narrowing construction.” The court found that emotionally distressing speech as a category could subsume much speech that is necessary:
“Doctors deliver life-shattering prognoses that surely send reasonable people to suffer emotional tailspins of distress. Spouses knowingly inflict emotional distress by revealing longstanding paramours and demanding divorce. Police officers deliver news of loved ones having been killed. Judges pronounce death sentences. Employers tell staff that they are fired. They all know, or should know, the extraordinary distress their messages bring, and so fall within the statute’s prohibitions. Distressing speech is an important and often valuable part of life.”
The court turned to political communication at the highest rung of First Amendment-protected speech. Activists, from advocates of animal rights to the pro-life position on abortion, often hurl insulting words or graphic images. “Both speak on issues of public concern and are therefore entitled to the strongest First Amendment protections” despite the emotional distress such statements and images may inflict. Thus, the court reasoned, “a statute that prohibits speech indiscriminately based solely on its propensity for causing such distress is a constitutional nonstarter.”
Perhaps the court’s take on speech can be reduced to a quote from a 1973 U.S. Supreme Court decision, “the First Amendment needs breathing space.”
As Volokh has pointed out, the court did not strike down the D.C. law, but narrowed it to those discrete categories of speech that fall outside the scope of the First Amendment’s protection.
“We are overjoyed at this opinion from the Court of Appeals,” said Gene Schaerr, general counsel of PT1st. “We are proud to have been ably represented by Eugene Volokh and to have help vindicate the First Amendment’s protection against any laws that encroach on the freedom of speech.”
In the latest example of government targeting religion, the Minnesota Legislature recently passed a bill banning Christian colleges and universities from participating in the state’s Post-Secondary Enrollment Options (PSEO) program – which allows high school students to earn college credit at the institution of their choice.
The move is brazenly unconstitutional. It also deprives the state of some of its largest PSEO providers, while also preventing thousands of high-school aged young people from attending schools that align with their faith.
Minnesota’s PSEO program is designed to allow 10th, 11th, and 12th-grade students to earn college credit tuition free while still in high school. Two of its prominent providers are Crown College and the University of Northwestern-St. Paul. In 2020, Crown provided nearly 4,400 credit hours to PSEO students. That same year, Northwestern provided almost 25,000 – roughly 15 percent of the state’s total PSEO student hours.
What do these two schools have in common? Both are Christian institutions requiring a statement of faith from prospective on-campus students – and both are now expressly banned from participating in the PSEO program.
This new law is a wide-ranging education bill which, among other things, revises the criteria for eligible PSEO institutions to explicitly exclude religious institutions. The bill states: “An eligible institution must not require a faith statement from a secondary student seeking to enroll in a postsecondary course under this section during the application process or base any part of the admission decision on a student's race, creed, ethnicity, disability, gender, or sexual orientation or religious beliefs or affiliations.” (Emphasis added.)
The legislative history plainly demonstrates that legislators knew that Crown and Northwestern would be affected by the changes, with the bill’s sponsor acknowledging an intent to coerce such institutions into admitting students regardless of their beliefs.
For an entertaining view of legislative sharp elbows within the constraints of Minnesota nice (see the 3:09 mark), listen to Rep. Ben Bakeburg discuss the “targeting of people of faith,” and Rep. Harry Niska put the amendment’s author, Rep. Laurie Pryor, on the spot about whether she intends to exclude religious schools or force them to change their doctrine.
As Rep. Niska amply demonstrated, by excluding religious institutions from public benefits widely available to private secular institutions, this bill runs afoul of the U.S. Supreme Court opinion in Trinity Lutheran Church of Columbia, Inc. v. Comer, (2017), which held that such discrimination is “odious to our Constitution . . . and cannot stand.” Rep. Niska also pointed out in Carson v. Makin that the Supreme Court held that religious schools in Maine could not be excluded from a state school choice program on the basis of their religious beliefs.
A second, more practical, problem is that Minnesota’s actions disenfranchise students wishing to attend Crown and Northwestern, the latter being the largest provider of PSEO services. Northwestern has already admitted 183 on-campus PSEO students for the 2023-2024 school year. As Becket Fund senior counsel Diana Thomson aptly put it, “Minnesota politicians just slammed the door on thousands of kids in their state who want to get a head start on college, all because the schools they want to attend share their religious beliefs.”
Two families affected by the Legislature’s decision – as well as both Crown and Northwestern – have filed suit against the state asking for injunctive relief and a determination that the new law violates the Constitution and Minnesota law, enshrining the right to the free exercise of religion.
Any law infringing on a fundamental Constitutional right must be narrowly tailored to further a compelling governmental interest. Protect The 1st will be watching this case closely as it progresses.
Erik Jaffe, PT1's Policy Director and PRI adjunct fellow in legal studies and one of America’s top constitutional lawyers, joins us for his annual preview of the hot Supreme Court cases that will be handed down before the end of the term. They discuss cases involving private property rights, tech, college admissions policies, legislative gerrymandering, and more. They also explore the controversy over Supreme Court ethics and the mystery of why we still haven’t found the Supreme Court “leaker.”
In a striking win for advocates of religious freedom (i.e. the vast majority of Americans), Arizona’s Washington Elementary School District agreed to settle a lawsuit brought by Arizona Christian University (ACU) alleging religious discrimination in contravention of the U.S. Constitution and established state law. The settlement walks back the district’s February decision to exclude ACU student teachers from public school classrooms based on the university’s “Statement of Faith” and its traditional, Christian religious beliefs.
For the 11 years preceding the school board’s decision, ACU enjoyed a harmonious and productive relationship with the district, with dozens of its students assisting in the district’s elementary schools as part of the university’s student teaching and practicum requirements. According to the complaint filed by the Alliance Defending Freedom on behalf of ACU, at least 17 of those students went on to be hired as full-time employees. In no instance was there ever any allegation by the district about improper behavior by ACU students, who are required by the Arizona Christian Student Teaching Handbook to “[a]bide by the rules and policies of the assigned school.”
That didn’t stop the school board from terminating the longstanding operating agreement between ACU on Feb. 23 after one member brought up concerns about certain language contained in ACU’s mission statement demonstrating the university’s commitment to “biblically informed values that are foundational to Western civilization, including […] the centrality of family [and the] traditional morality and lifelong marriages between one man and one woman.”
Following a period of discussion, the board voted unanimously to end the agreement with ACU, causing significant harm to university students in the process of completing their teaching requirements – and doing so solely on the basis of their constitutionally protected religious beliefs.
As we noted, many religions and denominations hold beliefs similar to those of ACU. Were a court to uphold the school board’s decision, it would open the floodgates to widespread government discrimination against practicing members of many religions, including Orthodox Jewish and Muslim teachers, as well as those who are Roman Catholic.
Instead, this settlement reflects a positive development in the ongoing and seemingly ceaseless fight to defend the free exercise of religion. The school board’s commendable willingness to reverse itself is emblematic of a growing recognition that quality education is commonplace at religious institutions, even if some may disagree with those institutions doctrines and beliefs.
So long as good teachers don’t bring their faith into the secular, public classroom, there should be no need to further litigate this issue in a courtroom.
“On a Greased Slide to the Supreme Court”
St. Isidore, early medieval Bishop of Seville, is venerated as a doctor of the church for writing extracts from ancient literature that preserved classical wisdom. For this reason, Pope John Paul II established St. Isidore as the patron saint of internet users. In the 21st century, because of a dramatic development in Oklahoma on Monday, St. Isidore is now almost certainly destined to also become known as the name of a major, future U.S. Supreme Court opinion.
This is because Oklahoma has become the first state in the union to explicitly approve a religious charter school, the St. Isidore of Seville Catholic Virtual School, to be run by the Archdiocese of Oklahoma and Diocese of Tulsa. Until now, private religious schools have been eligible to participate in some publicly funded programs – Hasidic schools in New York receive some public funds while charging tuition, for example – but St. Isidore will be the first religious charter school fully paid for by taxpayers.
No sooner did an Oklahoma state board approve St. Isidore for funding than the Americans United for Separation of Church and State signaled it was preparing a lawsuit.
“This case is on a greased slide toward the Supreme Court,” said Gene Schaerr, Protect The 1st general counsel. “It will establish once and for all whether religious schools can be lawfully excluded from charter funding. Recent Court reasoning, from Trinity Lutheran v. Comer to Carson v. Makin, strongly suggests that discrimination against religious charter schools will soon be relegated to the proverbial ash heap of history.”
Another university professor is in the news for showing a depiction of the Muslim Prophet Muhammad in a classroom. This is the second such incident involving a portrayal of the Prophet Muhammad to happen this academic year.
In the fall of 2022, Maziar Behrooz, as associate professor of history at San Francisco State University, was teaching a course on Islamic history when he showed his students a drawing of the prophet. Though artistic portrayals of the prophet are considered idolatry by many in the Muslim world, opinions differ. Behrooz, who was born in Iran, said that such drawings can be purchased in street markets in Tehran.
A Muslim student objected to the depiction to Behrooz outside of class. Behrooz told the student that as the professor he has the ultimate discretion to decide class content. According to some accounts, the professor showed the image again, which the student took as a taunt, prompting him to issue a complaint. When approached by the chair, Behrooz replied that the student's view is not uniform among all Muslims and that many do own and display depictions of the Prophet Muhammad. The SFSU office of Equity & Compliance informed Behrooz in March that he would face an investigation.
Despite appeals from some civil liberties organizations for SFSU to drop the investigation, California law may require the university to investigate the student’s complaint. As SFSU navigates this mine field, it should consider another recent academic drama centered around depictions of the prophet.
In fall 2022, Hamline University professor Erika López Prater was fired for showing a depiction of the Prophet Muhammad in her global art history class. The incident was elevated to a national controversy. In January, professor López Prater sued Hamline for religious discrimination and defamation, as well as for damaging her professional and personal reputation. Hamline has since walked back their comments against professor López Prater, and over one-half of full-time Hamline faculty voted to demand President Fayneese Miller resign. In early April, the president announced that she would retire.
The president of SFSU, Lynn Mahoney, has approached this case with greater care, issuing a statement that balances academic freedom with protecting students from harassment. As more cases like this occur, nuances could arise regarding the First Amendment – not only professors’ academic freedom, but also the religious liberty rights of students.
This is another sign that American universities are in the midst of a major recalibration prompted by an increasingly diverse student body. Such recalibration can never come, however, at the cost of free inquiry, nor can de facto blasphemy laws be enshrined within higher education. Perhaps California law should not mandate such investigations in the first place, but rather give academic leaders flexibility to look into complaints in ways that protect students and academic freedom.
Tennessee’s short-lived ban on drag shows finally met its end in federal court on Friday at the hands of a judge who ruled it unconstitutional while explicitly recognizing the right of Tennessee voters to protect children from sexually explicit materials. The question that remains is why legislators so often pass unconstitutional messaging bills that are doomed to die in court.
Tennessee’s Adult Entertainment Act (AEA) banned “adult cabaret performances” on public property or in locations where the performance “could be viewed by a person who is not an adult.” The law not only outlawed male or female impersonators, but also “exotic” dancers.
As Protect The 1st pointed out, AEA could conceivably outlaw performances of Shakespeare’s As You Like It, or outdoor showings of Mrs. Doubtfire or Tootsie, or even dancing ladies announcing the circus is coming. The state’s attorney referred to a Tennessee Supreme Court ruling that “harmful to minors” would only include “materials which lack serious literary, artistic, political or scientific value for a reasonable 17-year-old.” In other words, leave it to endless litigation to determine what is literature, art, science, or political discourse, not to mention the rare species of reasonable 17-year-olds.
U.S. District Court Judge Thomas L. Parker saw the vacuity of this law. He agreed with the plaintiffs, a Memphis-based theater group threatened with the felony of producing drag shows, that the law’s “harmful to minors standard” is “unconstitutionally vague and substantially overbroad.”
In the opening of his brief, Judge Parker gave a ringing description of the First Amendment. He wrote:
“Freedom of speech is not just about speech. It is also about the right to debate with fellow citizens on self-government, to discover the truth in the marketplace of ideas, to express one’s identity, and to realize self-fulfillment in a free society.”
In the conclusion of his 70-page opinion, Judge Parker wrote:
“Let there be no mistake about this Court’s recognition that Tennessee has a compelling government interest in protecting its minor population. Scores of concerned Tennesseans asked the Court to uphold the Adult Entertainment Act because their State supposedly enacted it to protect their children. Tennesseans deserve to know that their State’s defense of the AEA primarily involved a request for the Court to alter the AEA by changing the meaning of ‘minors’ to a ‘reasonable 17-year-old minor.’ In other words, while its citizens believed this powerful law would protect all children, the State’s lawyers told the Court this law will only protect 17-year-olds. This is only one of several ways in which Tennessee asked this Court to rewrite the AEA.
“To rewrite this law would not only violate the separation-of-powers principle, but it would also offer perverse incentives for legislators to continue their troubling trend of abdicating their responsibilities in exercising ‘considered legislative judgment.’”
The short journey of this law from passage to being overturned is a visible result of a national trend: Namely, voters are sending declining numbers of candidates with law degrees to state legislatures. Perhaps if more legislators were lawyers, they would craft bills that respect the First Amendment and the Constitution.