California, known for its progressive values and innovation, is increasingly becoming a battleground over the regulation of speech. The state's regulatory, political, and educational bodies are systematically encroaching on the fundamental right to free expression, attempting to manage and control speech in ways that undermine the First Amendment in the schools and among businesses.
When California sets a precedent, the implications for free speech rights across the country are profound, warranting close scrutiny and robust debate. Yet in California, recent actions reflect a shift towards control and censorship, challenging this essential liberty. Consider the legal battle involving X Corp., formerly known as Twitter. The company has been fighting against surveillance and gag orders that infringe on X’s First Amendment rights while also threatening the Fourth and Sixth Amendment rights of its users. When the government demands access to personal data stored by companies like X Corp. and then issues Non-Disclosure Orders (NDOs) to keep this secret, it coerces companies into acting as government spies, unable to speak to their users about the breaches of their privacy. This case highlights a broader pattern in California's legislative and judicial landscape. One recent law, California Bill AB 587, mandates that social media companies disclose their content moderation practices. Legal scholar Eugene Volokh has argued that this law pressures companies to engage in viewpoint discrimination, reveal their internal editorial processes, and do the government's bidding in managing speech. How would that be different from requiring newspapers to explain their editorial decisions to the government? These laws and regulations are often claimed to be justified as necessary for combating hate speech, misinformation, and harassment; however, they impose significant burdens on companies and threaten to stifle free expression. A court recently ruled against X Corp. in its attempt to block the law requiring it to disclose to the government the internal deliberations of its content moderation policies. While transparency in moderation practices might seem beneficial, the forced disclosure could lead to state-enforced censorship and coercion of private editorial processes, undermining the very principles of free speech the First Amendment is meant to protect. The state's approach to managing speech extends beyond digital platforms. In a recent disturbing case, an elementary school disciplined a first grader for drawing a benign picture with the phrase “Black Lives Matter.” Being young and probably unaware of the larger sensitivities, this elementary school child added: “any life.” The school promptly disciplined the child without telling her parents. This overreaction reflects a broader problem with educational institutions, driven by a hypersensitivity to the perceived (or mis-perceived) demands of political correctness, that end up punishing even innocent expressions of empathy and solidarity. A federal court's support for the school's actions further highlights the precarious state of free speech rights in educational settings, from elementary school up to graduate school, law school, and medical school. California's aggressive stance on speech regulation also manifests in its legal battles over the Second Amendment. A controversial state law tried to impose attorney's fees on plaintiffs challenging gun restrictions even if they win their case, but lose any small portion of their claims. This tactic aims to deter legal challenges and silence dissent, directly contravening First Amendment rights. The law’s similarity to a Texas statute targeting abortion challengers underscores a worrying trend of using financial penalties to stifle constitutional challenges. These cases collectively illustrate a dangerous trajectory in California's approach to managing speech. The state's efforts to regulate and control various forms of expression, whether online, in schools, or through legal deterrents, represent a direct assault on the First Amendment. The complexities and nuances of speech, inherently messy as they are, cannot and should not be sanitized by governmental oversight. Fortunately, the U.S. Supreme Court remains a bulwark against regulations violating the First Amendment. The Court’s decision in AFP v. Bonta, which struck down California's requirement for non-profit organizations to disclose their donors, was a significant victory for free speech. The Court recognized that such disclosure requirements pose a substantial burden on First Amendment rights, particularly by exposing donors to potential harassment and retaliation. This case reinforces the principle that anonymity in association is crucial for protecting free expression and dissent. In the recent NetChoice opinion, a majority of the Court gave a ringing endorsement of editorial freedom, even while sending the case back for a more detailed review of the laws. We remain optimistic the Supreme Court will likewise rein in California’s antagonism toward the First Amendment if, and when, it has the opportunity. The recent session of the U.S. Supreme Court will likely be remembered for two major rulings implicating fundamental separation of powers doctrine: Trump v. United States, establishing presumptive immunity from prosecution for official presidential acts; and Loper Bright Enterprises v. Raimondo, dispensing with the long-established “Chevron Two Step” granting deference to a federal agency’s interpretation of statutes. In both instances, the Court reaffirmed our constitutional system of checks and balances, including protection against encroachment on the powers and privileges of one branch of government by another.
Against the backdrop of those headline-dominating developments, the Supreme Court also took on several important First Amendment cases, with results that were constitutionally sound. Below are the highlights – and summaries – of the Court’s First Amendment jurisprudence released in recent weeks. Food and Drug Administration v. Alliance for Hippocratic Medicine In a unanimous ruling, the Supreme Court rejected a challenge to the Food and Drug Administration’s regulation of the abortion drug mifepristone. Little noticed by the media, the Court’s opinion also firmly nailed down the conscience right of physicians to abstain from participating in abortions and prescribing the drug. Writing for the Court, Justice Kavanaugh said that the Church Amendments, which prohibit the government from imposing requirements that violate the conscience rights of physicians and institutions, “allow doctors and other healthcare personnel to ‘refuse to perform or assist’ an abortion without punishment or discrimination from their employers.” From now on, any effort to restrict or violate the conscience rights of healers will go against the unanimous opinion of all nine justices of the U.S. Supreme Court. Vidal v. Elster The Supreme Court, in another unanimous decision, overturned a lower court ruling that found that the U.S. Patent and Trademark Office’s denial of an application to trademark a phrase including the name “Trump” violated the filer’s First Amendment rights. Writing for the Court, Justice Thomas wrote that “[o]ur courts have long recognized that trademarks containing names may be restricted.” But such trademark restrictions, while “content-based” must be “viewpoint neutral.” This opinion prevents commercial considerations to scissor out pieces of the national debate. While the decision rejected a novel First Amendment claim to a speech-restricting trademark, it affirms sound First Amendment principles and protects the speech of all others who would discuss and debate the virtues and vices of prominent public figures. The Court was right to refuse the endorsement of a government-granted monopoly on a phrase about a presidential candidate. NRA v. Vullo NRA v. Vullo – yet another unanimous opinion – cleared the way for the National Rifle Association to pursue a First Amendment claim against a New York insurance regulator who had twisted the arms of insurance companies and banks to blacklist the group. Maria Vullo, former superintendent of the New York State Department of Financial Services, met with Lloyd’s of London executives in 2018 to bring to their attention technical infractions that plagued the affinity insurance market in New York, unrelated to NRA business. Vullo told the executives that she would be “less interested” in pursuing these infractions “so long as Lloyd’s ceased providing insurance to gun groups.” She added that she would “focus” her enforcement actions “solely” on the syndicates with ties to the NRA, “and ignore other syndicates writing similar policies.” The Court found for the NRA, writing that, “[a]s alleged, Vullo’s communications with Lloyd’s can be reasonably understood as a threat or as an inducement. Either of those can be coercive.” The Supreme Court’s opinion vacates the Second Circuit’s ruling to the contrary and remands the case to allow the lawsuit to continue. As the Court wrote, “the critical takeaway is that the First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech, directly or (as alleged here) through private intermediaries.” And we wholeheartedly agree – censorship by proxy is still government censorship. Moody v. NetChoice In one of two cases involving the nexus of government and social media, the Court seemed to punt on making a final decision on the constitutionality of laws from Florida and Texas restricting the ability of social media companies to regulate access to, and content on, their platforms. Many commentators believed the Court would resolve a split between the Fifth Circuit (upholding a Texas law restricting various forms of content moderation and imposing other obligations on social media platforms) and the Eleventh Circuit (which upheld the injunction against a Florida law regulating content and other activities by social media platforms and by other large internet services and websites). The Court’s ruling was expected to resolve the hot-button issue of whether Facebook and other major social media platforms can depost and deplatform. Instead, the Court found fault with the scope and precision of both the Fifth and the Eleventh Circuit opinions, vacating both of them and telling the lower courts to drill down on the varied details of both laws and be more precise as to the First Amendment issues posed by such different provisions. The opinion did, however, offer constructive guidance with ringing calls for stronger enforcement of First Amendment principles as they relate to the core activities of content moderation. The opinion, written by Justice Elena Kagan, declared that: “On the spectrum of dangers to free expression, there are few greater than allowing the government to change the speech of private actors in order to achieve its own conception of speech nirvana.” Murthy v. Missouri In what looked to be a major case regarding the limits of government “jawboning” to get private actors to restrict speech, the Court instead decided that Missouri, Louisiana, and five individuals whose views were targeted by the government for expressing misinformation could not demonstrate a sufficient connection between the government’s action and their ultimate deplatforming by private actors. Accordingly, the Court’s reasoning in this 6-3 decision is that the two states and five individuals lacked Article III standing to bring this suit. A case that could have defined the limits of government involvement in speech for the central media of our time was thus deflected on procedural grounds. Justice Samuel Alito, in a fiery dissent signed by Justices Clarence Thomas and Neil Gorsuch, criticized the punt, calling Murthy v. Missouri “one of the most important free speech cases to reach this Court in years.” Fortunately, NRA v. Vullo, discussed above, sets a solid baseline against government efforts to pressure private actors to do the government’s dirty work in suppressing speech the government does not like. Later cases will, we hope, expand upon that base. Secret communications from the government to the platforms to take down one post or another is inherently suspect under the Constitution and likely to lead us to a very un-American place. Let us hope that the Court selects a case in which it accepts the standing of the plaintiffs in order to give the government, and our society, a rule to live by. Gonzalez v. Trevino Protect The 1st has reported on the case of Sylvia Gonzalez, a former Castle Hills, Texas, council member who was arrested for allegedly tampering with government records back in 2019. In fact, she merely misplaced them, and was subsequently arrested, handcuffed, and detained in what was likely a retaliatory arrest for criticizing the city manager. In turn, Gonzalez brought suit. Gonzalez’s complaint noted that she was the only person charged in the past 10 years under the state’s government records law for temporarily misplacing government documents. In 2019’s Nieves v. Bartlett, the Supreme Court found that a plaintiff can generally bring a federal civil rights claim alleging retaliation if they can show that police did not have probable cause. The Court also allowed suit by plaintiffs claiming retaliatory arrests if they could show that others who engaged in the same supposedly illegal conduct, but who did not engage in protected but disfavored speech, were not arrested. The U.S. Court of Appeals for the Fifth Circuit threw out Gonzalez’s case, finding that she would have had to offer examples of those who had mishandled a government petition in the same way that she had but – unlike her – were not arrested. The Supreme Court, by contrast, found that, “[a]lthough the Nieves exception is slim, the demand for virtually identical and identifiable comparators goes too far.” The Court thus made it a bit easier for the victims of First Amendment retaliation to sue government officials who would punish people for disfavored speech. The controversy will now go back to the Fifth Circuit for reconsideration. *** While the Court avoided some potentially landmark decisions on procedural grounds, and offered a mixed bag of decisions concerning plaintiffs’ ability to obtain redress against potential First Amendment violations, the majority consistently showed a strong desire to protect First Amendment principles – shielding people and private organizations from government-compelled speech. When a federal judge recently ruled in favor of the Fellowship of Christian Athletes’ (FCA) right to register as an official student group at the Washington, D.C.-based Jackson-Reed High School, she smacked down a copycat challenge by educators that had already recently been rejected – twice – by the federal Ninth Circuit Court of Appeals.
This is the second major challenge to the FCA, an international ministry dedicated to engaging student-athletes in their Christian faith. The FCA had been removed before as an official student group by the San Jose school district, only to be reinstated in federal court. The school’s objected to the FCA's requirement for student leaders to adhere to its Statement of Faith, which among many other tenets includes traditional Christian views on marriage and sexual conduct. Not willing to accept this precedent, the District of Columbia Public Schools sought to exclude FCA at its Jackson-Reed High School. In her ruling, Judge Dabney L. Friedrich granted a preliminary injunction in favor of the FCA, emphasizing that the District's application of its Anti-Discrimination Policy was likely in violation of both the Religious Freedom Restoration Act (RFRA) and the Free Exercise Clause of the First Amendment. The court found that the school district was forcing the FCA to choose between maintaining its religious principles or jettison them to win official recognition, a choice not imposed on secular groups at the school. Judge Friedrich's opinion underscored the unequal treatment of the FCA compared to other student groups that also impose ideological requirements on their members. The court noted, “It makes equal sense that a religious group be allowed to require that its leaders agree with the group’s most fundamental beliefs.” This statement aligns with previous Ninth Circuit rulings which highlighted the discriminatory “double standard” applied against the FCA in similar cases. The court's conclusion was clear: “Antidiscrimination laws, like all other laws, must be applied evenhandedly and not in violation of the Constitution.” This reaffirms the principle that religious organizations should not be penalized for their beliefs, especially when similar secular groups are allowed to operate under their own sets of standards. This ruling not only reinstates the FCA at Jackson-Reed High School but should also reaffirm the Ninth Circuit’s precedent. The court's decision reflects a broader commitment to upholding First Amendment rights and ensuring that religious groups are treated fairly and without bias. This is a significant step forward in protecting religious freedom in educational settings, reminding institutions of the importance of mutual respect and tolerance for diverse beliefs. This should be the last word for some school administrators who want to lock the school door to keep out religious student organizations, but somehow, we doubt it will be. Following the Oct. 7th atrocities committed against Israeli citizens, retaliatory attacks against Hamas with many innocents caught in the crossfire led to protests on campuses nationwide that shut down students’ freedom of movement and learning. Whatever one’s view of that conflict, it is undeniable that many anti-Israel protests turned into antisemitic persecution of students and faculty. Nowhere were these attacks as dark or troubling as those that occurred at the University of California, Los Angeles.
From April 25, 2024, to May 2, 2024, UCLA permitted a group of protestors to set up barricades in the heart of campus, creating what was widely termed a “Jew Exclusion Zone.” Activists locked arms, racially profiled students and faculty presumed to be Jewish, and refused to allow them access to campus or educational buildings unless someone vouched for their belief in the anti-Israel cause. The university, for its part, facilitated this occupation by failing to break up the blockade for a full week. Administrators even went so far as to hire private security to direct Jewish students away from the encampment, where calls for “death to Israel” and “death to Jews” were commonplace. As Chancellor Gene Block testified before Congress, events at UCLA reflected “the disturbing rise of antisemitism across our country since October 7th,” which placed Jewish students in “a state of anxiety and fear.” Now, the Becket Fund, representing three Jewish students from UCLA, is bringing suit against the university. As the plaintiff’s memorandum correctly alleges, the university’s acquiescence to the creation of a disruptive, discriminatory, and dangerous environment right in the heart of campus – in turn, preventing Jewish students from accessing public facilities – constitutes a violation of the Free Exercise Clause, the Free Speech Clause, and the Equal Protection Clause. It also implicates Title VI, which provides that “[n]o person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” The requested preliminary injunction would require that a plaintiff “establish[es] that he is likely to succeed on the merits, that he is likely to suffer irreparable harm” without issuance of an injunction, “that the balance of equities tips in his favor, and that an injunction is in the public interest.” The plaintiffs plainly meet those criteria. Without judicial intervention, there can be no guarantee that Jewish students will be able to safely access the public educational benefits to which they are entitled when they return to campus next month. As Becket Fund president Mark Rienzi said last month in congressional testimony, these episodes sound more like 1930s Germany than 2020s America. But there is a way forward. Rienzi said: “Together, we can defeat the scourge of antisemitism in our institutions of higher learning and society by ‘giving to bigotry no sanction, to persecution no assistance.’ Together, we can live up to George Washington’s promise that in this country, none shall be made afraid on account of his faith or ancestry. And together, we can ensure that the promises of our Constitution and our civil rights laws are kept and safeguarded.” Kudos to the Becket Fund for taking a stand against ignorance and intolerance. We’ll be following this case closely. When Louisiana passed a new law requiring the Ten Commandments to be displayed in all public classrooms, a debate began that will undoubtedly be resolved only in a federal court.
Defenders of the law point out that the Ten Commandments are foundational to Western civilization and much of American history. Doesn’t that justify their posting in terms of civic education? We agree that stripping all religion out of American education would be ahistorical. One cannot teach children about the origins of the American nation or the forces that sparked the American Civil War and the civil rights movement a century later without exploring the role of religion. Even in this context, however, the Ten Commandments seems more like an effort to impart religious moral guidance than teaching civics. Critics respond that the posters violate the First Amendment’s prohibition against the establishment of religion. Doesn’t that justify forbidding posting Judeo-Christian scripture? The American Civil Liberties Union contends that the Ten Commandments mandate constitutes an “unconstitutional religious coercion of students.” A federal court will have to determine if Louisiana’s Ten Commandment mandate violates the Establishment Clause under a historical understanding of similar laws at or near the time of the Bill of Right’s ratification. What is getting lost is that Louisiana is taking another step that presents a better way forward. The state is fostering educational pluralism in a way that includes those who seek a religious education for their children. Louisiana recently expanded its school choice program to allow for vouchers for families to choose private schools. The constitutionality of Louisiana’s school choice vouchers is enhanced by a Supreme Court decision, Carson v. Makin in 2022, and by other recent rulings holding that funding made available for secular schools must also be equitably available to religious schools. The new Louisiana vouchers will enable many children to attend quality private schools, whether religious schools or purely secular. All such schools must meet state standards in the teaching of science, history, civics, math, and other subjects. Enhancing the right of parents to choose values they want to extend to their children – whether secular or religious – is a fruitful path that manages to thread the needle for pluralism, educational standards, and, for those who choose it, a religious education. The U.S. Supreme Court recently ruled in NRA v. Vullo that New York Financial Services superintendent Maria Vullo unlawfully discriminated against a leading firearm advocacy organization by coercing financial institutions to de-bank them.
This case implicates a disturbing trend in corporate America far beyond the dictates of state regulators and politicians. In 2022, JPMorgan Chase 86’ed the bank account of the National Committee for Religious Freedom, run by former Kansas governor and U.S. Sen. Sam Brownback. The bank refused to reinstate the account unless NCRF disclosed its private donor information. The Alliance Defending Freedom fought back, spearheading a campaign against the bank that included the development of a “Viewpoint Diversity Score Business Index,” measuring private companies’ respect for religious freedom. According to ADF, Chase agreed to change its policies, committing “to ongoing engagement on how their company can protect free speech and religious liberty.” Under the law, large corporations are generally free to have opinions and to choose their customers. The First Amendment, after all, only applies to government actors like Commissioner Vullo, not to private entities like Chase. But the values of a First Amendment society are enabled and underscored by pluralism in the commercial sector. This is especially true for service providers like a bank and other businesses that offer public services, often under common carrier law. (For businesses that offer expressive services, from newspapers to social media providers, they have an absolute right to curate their content – though they, too, would do our society a civic good by allowing space for a wide diversity of viewpoints.) Americans should not have to be concerned about a potential loss of financial empowerment just because of their religious or political views. Corporate cancellations are a bad look. While companies may not be subject to First Amendment strictures, they surely are subject to public relations disasters. This was one of them. Protect The 1st congratulates Chase for listening and reversing its policy. Drummond v. Oklahoma Statewide Virtual Charter School Board The Oklahoma Supreme Court ruled 7-1 this week against allowing public charter funds to support a virtual Catholic school, holding that the funding of online religious schools by the state to be unconstitutional.
“Today’s ruling is very disappointing for the hundreds of prospective students and their families from across the state of Oklahoma who desired the educational experience and promise of St. Isidore of Seville Catholic Virtual School,” the Archdiocese of Oklahoma City said in a statement. “We will consider all legal options and remain steadfast in our belief that St. Isidore would have and could still be a valuable asset to students, regardless of socioeconomic, race, or faith backgrounds.” Our take is that the Oklahoma Supreme Court’s opinion is buttoned down, logical, and eminently overturnable. It relies on that state’s version of a Blaine Amendment, a movement that gathered momentum when American politics was infected with anti-Catholic bigotry. In our view, publicly funded charter schools are similar to voucher programs, which are often given to religious schools that – in every state – must meet mandated standards in English, math, history, science, and other subjects. Taking the state’s money, in our view, would make St. Isidore a publicly funded school, but not a “public school.” Justice Dana Kuehn made a similar point in her lone dissent: “St. Isidore would not become a ‘state actor’ merely by contracting with the State to provide a choice in educational opportunities. By allowing St. Isidore to operate a virtual charter school, the State would not be establishing, aiding, or favoring any particular religious organization. To the contrary: Excluding private entities from contracting for functions, based solely on religious affiliation, would violate the Free Exercise Clause of the First Amendment to the United States Constitution.” The Oklahoma State Attorney General, Gentner Drummond – the petitioner filing against St. Isidore – likened the inclusion of a Catholic school to a private takeover of the operations of the Oklahoma Highway Patrol, rebranding it as the “Catholic Church Highway Patrol.” (Imagine the fun comedians would have with that, being pulled over for confession and then having the officer ask you, “sir, you know it’s Friday, is that meat on your breath?”) Justice Kuehn latched on the ridiculous nature of this metaphor. She wrote: “The logical flaw is that, unlike law enforcement, enrollment in a charter school is fundamentally a choice for parents to make. St. Isidore would not be ‘taking over’ any function that is traditionally the exclusive realm of the State. It would exist alongside state-mandated secular options.” Justice Kuehn is right. The issue here is that inclusion of St. Isidore would give the people of Oklahoma a choice in picking a school that would adhere to state-mandated standards, giving parents a choice for a rigorous education and the continuation of their cherished values. Justice Kuehn pointed to the U.S. Supreme Court’s striking down of a Montana Supreme Court opinion, Espinoza (2020). In that case, the Supreme Court ruled that a state-based scholarship program that provides public funds to allow students to attend private schools cannot discriminate against religious schools under the First Amendment’s Free Exercise Clause. Justice Kuehn predicts a similar result. Colorado's attempts to exclude Catholic preschools from its universal preschool program has faced another legal setback. A federal court in Colorado ruled that the state violated the Constitution by excluding religious schools based on their requirements for religious affiliation. This decision follows a lawsuit filed by St. Mary’s and St. Bernadette’s Catholic preschools, supported by the Becket Fund for Religious Liberty.
The court's 101-page opinion criticized Colorado's approach, stating it “created an unworkable scheme that breaches the appropriate limits on state power.” The court found no compelling interest for the state's exclusion of Catholic preschools. This decision marks the second federal court ruling against Colorado's universal preschool program. In 2022, Colorado launched its universal preschool program, aiming to provide 15 hours of free education per week to preschoolers at private or public schools chosen by their parents. Despite the program’s intent to be inclusive, the state's Department of Early Childhood imposed restrictions that excluded all Archdiocesan Catholic preschools, affecting over 1,500 children at 36 schools. The lawsuit argued that excluding these schools deprived families of critical resources based on their religious beliefs. The Supreme Court has repeatedly affirmed that the government cannot deny public benefits due to religious affiliation. This principle was upheld in the recent ruling, reinforcing the notion that “universal” should indeed mean universal. The court's decision underscores the importance of religious freedom in public benefit programs. As Nick Reaves, counsel at Becket, remarked, “Of course a Catholic school shouldn’t be punished for caring about its students’ religion.” The ruling emphasized that the state's exclusionary practices are not only unconstitutional but also unjust. At St. Bernadette’s, 86 percent of students qualify for free and reduced-price school meals, and 64 percent are English as a Second Language learners. St. Mary’s also supports many families through scholarships and tuition discounts. This legal victory for Catholic schools in Colorado may face further challenges. The state could appeal the decision to the Denver-based U.S. Court of Appeals for the Tenth Circuit. However, the ruling provides a strong precedent against religious discrimination in public programs. Colorado's attempt to exclude religious schools from its universal preschool program has been firmly rebuked by the courts. This case reaffirms the constitutional principle that public benefits cannot be denied based on religious beliefs, ensuring that all families have the freedom to choose the best educational environment for their children. Protect The 1st will be watching this case closely. Fourth Circuit Forces Parents to Decide Between Religious Values or a Free Public Education6/26/2024
Mahmoud v. McKnight A recent ruling by the Fourth Circuit Court of Appeals has struck a severe blow to the cause of parental rights and religious liberty. This contentious case revolved around the Montgomery County Board of Education's controversial decision to deny opt-out requests for certain LGBTQ+ inclusive texts used in K-5 classrooms.
As we’ve reported, parents argued that this policy infringed upon their First Amendment rights to shape their children's education regarding sexuality and gender, contending that it forced them into an untenable position: compromise their deeply held religious beliefs or withdraw their children from public education altogether. The Fourth Circuit Court of Appeals affirmed the district court's decision, denying the parents' request for a preliminary injunction. The court concluded that the parents failed to demonstrate a substantial burden on their religious exercise, determining that exposure to the inclusive texts did not amount to a violation of their religious rights. The ruling emphasized that the school's curriculum did not compel students to affirm or renounce any beliefs, but merely exposed them to diverse perspectives. Judge A. Marvin Quattlebaum issued a strong dissent in this case that should be required reading for anyone in need of a better understanding of the foundational importance of religious liberty. Judge Quattlebaum criticizes the majority for not recognizing the burden placed on parents' religious rights. He asserts that “the board's decision to deny religious opt-outs burdened these parents' right to exercise their religion and direct the religious upbringing of their children by putting them to the choice of either compromising their religious beliefs or foregoing a public education for their children.” A key point in Judge Quattlebaum's dissent is his emphasis on the non-neutrality and lack of general applicability of the board's actions. He argues that the board's decision was not neutral because it selectively imposed a burden on religious practices while accommodating other types of opt-outs, such as for Halloween or Valentine's Day celebrations. He asserts that the board's actions were discriminatory against religious beliefs, which is contrary to the First Amendment's protections. The judge writes: “The policy was neither neutral nor generally applicable because it invited the government ‘to decide which reasons for not complying with the policy are worthy of solicitude’ in its sole discretion.” Judge Quattlebaum also highlights that the parents were not attempting to ban the books but merely sought the ability to opt out. He points out that the school’s guidelines previously allowed for reasonable accommodations for religious beliefs, and the sudden reversal without clear justification exacerbates the burden on religious parents. He finds it problematic that the board changed its policy to no longer permit notice and opt-out options, a move he describes as an unexplained “about-face” that failed to consider the substantial impact on religious families. While the board aims to foster an inclusive environment, Judge Quattlebaum argues that this goal should not come at the expense of fundamental religious rights. As he says: “The board’s refusal to grant the parents’ requests for religious opt-outs to instruction with the books the board required be used to promote diversity and inclusivity to the LGBTQ+ community forces the parents to make a choice – either adhere to their faith or receive a free public education for their children. They cannot do both.” Judge Quattlebaum's dissent stands as a powerful defense of the fundamental right of parents to direct their children's education according to their beliefs. “Is the Liberty Bell all it’s cracked up to be?” Hear Rabbi Dr. Meir Soloveichik, director of the Zahava and Moshael Straus Center for Torah and Western Thought at Yeshiva University and the rabbi at Congregation Shearith Israel in Manhattan, make wisecracks and wise observations in the keynote address at Becket’s recent Canterbury gala. Pew Research Center’s 14th annual study analyzing global restrictions on religion drew some disturbing conclusions, finding that state-sponsored harassment of religious groups reached an all-time high in 2021.
According to the study, governments across 183 countries (out of a total of 198) engaged in some degree of hostile acts or restrictive policies toward religious groups. The report splits its analysis into two categories – government restrictions on religion, and social hostilities toward religious minorities. While social hostility ticked down somewhat, the Government Restrictions Index (GRI) rose to 3.0 on a 10-point scale. While low on the overall scale, it reflects a jump up from 2.8 in 2020 – with heightened persecution in given regions raising the average global score. As Pew documents, government harassment was reported in each of the 20 countries in the Middle East-North Africa region, as well as in “43 of 45 countries in Europe (96 percent), 33 of 35 countries in the Americas (94 percent), 44 of 48 countries in sub-Saharan Africa (92 percent), and 43 of 50 countries in the Asia-Pacific region (86 percent).” The United States was rated as respecting religious practices overall but had instances in which religious freedom was not respected in practice. In the Netherlands, Party for Freedom leader Geert Wilders (a perennial favorite for such reports) called for countrywide “de-Islamization.” There have been proposals for “a series of measures including closing all mosques and Islamic schools, banning the Quran, and barring all asylum seekers and immigrants from Muslim-majority countries.” In Nicaragua, the president called Catholic clergy members “terrorists in cassocks” for supporting the country’s pro-democracy movement. In the Maldives, non-Muslims are outright prohibited from building places of worship or practicing their faith publicly. Two of the biggest offenders are Pakistan and Turkmenistan, the latter of which openly sanctions government harassment of some religious people. In one instance, Turkmenistan police detained groups of Muslim men and forced them to shave their beards and drink alcohol to prove that they weren’t “extremists.” Despite the fact that religious intolerance seems to be getting worse, it’s not all bad news – at least, not entirely so. Per the report, Sudan saw a large decrease in its GRI score, due largely to government reforms that decriminalized apostasy and “indecent dress.” Still, Pew’s report is a wakeup call – and a reminder that respecting religious freedom is an ideal to which not all aspire. Protecting the ability of people to worship freely requires ongoing vigilance and, most of all, compassion. In the United States, 94 percent of Americans believe religious freedom is a fundamental human right. Even here, the study found that the United States had “moderate” restrictions on religious freedom. We need to guard our American exceptionalism, which already is sometimes the result of a bright spot looking even brighter in contrast to surrounding darkness. The double standard in academia is reaching sickening levels.
At Rutgers, as at many universities, students who wear some outward sign of adhering to the Jewish faith, such as a kippah or a Star of David necklace, are often stopped and interrogated by self-appointed ideological vigilantes. At the same time, Jewish students are denied the right to hold a peaceful event on campus – including the forced cancellation of a peaceful, pro-Israel barbecue on the Rutgers University campus – out of fear of provoking violence from pro-Hamas protestors occupying the campus. When rhetoric gets violent and confrontation becomes intimidating, viewpoint discrimination edges into persecution. Yet many elite universities flirt with such danger. We would be justly outraged if a young woman on campus was harassed for wearing a hijab, or a young Sikh man was stopped and interrogated about his turban. Yet administrators at Rutgers and other institutions are often missing in action when the targets are Jewish students. A recently filed lawsuit by student Rebecca Schafer against Rutgers University shines a light on how escalating antisemitism on America’s university campuses shuts down speech and free inquiry. Schafer, an Orthodox Jewish student, sued the university after enduring months of harassment, intimidation, and discrimination, which she claims the administration failed to address. Schaffer recounts that eight days after the October 7th Hamas attacks on Israel, a student meeting at Demarest Hall took a dark turn when a student expressed joy over the high death toll in Israel, a sentiment that was met with approval from others. The dust had barely settled from this attack in which elderly Israelis were murdered and babies killed in their cribs. This disturbing incident was compounded when a mezuzah, a Jewish prayer scroll affixed to the doorposts of Jewish homes for protection and blessing, was torn from a student's door and discarded in a bathroom. Schafer left the meeting scared and shaking, feeling deeply threatened by the aggression toward her faith. Rebecca Schafer next became a personal target when posters with her photograph and pro-Palestinian slogans appeared outside her dorm room. This act of intimidation was terrifying for Schafer, leading to a police investigation and charges against two students. The chilling message was clear: “You aren’t safe anywhere at Rutgers.” At a recent House hearing in which Rutgers University President Jonathan Holloway and the presidents of other universities were grilled by Rep. Elise Stefanik (R-NY) and other Members, it came to light just how frightening campus occupations are for Jewish students. In a particularly egregious incident, a student directed the remark “Hitler would have loved you” at Schafer during an encampment. Schafer recounts that Jewish students were forced to flee out the back door of university buildings to escape the hostile environment. The portrait painted by Schafer’s lawsuit is of a spineless university administration leaving Jewish students to fend for themselves in the face of violent rhetoric and threats. The slow and methodical approach by Rutgers and other universities would never be tolerated if another ethnic or religious group were persecuted in such ways. When the fall semester begins in a few months, parents, students, and donors must demand college administrators react with alacrity to the persecution of Jewish students or be ready to give up their jobs. Protect The 1st will monitor this story as it develops. Fourth Circuit Protects Right of Religious Institutions to Make Faith-Based Employment Decisions5/29/2024
Generally speaking, terminating someone’s employment because of their sexual orientation is a gross violation of the law – and it should be. But that doesn’t apply in every instance, particularly when the employer is a religious institution engaged in guiding the spiritual development of others according to the tenets of their faith.
Lonnie Billard served as a teacher of English and drama at Charlotte Catholic High School (CCHS). After CCHS fired him for planning to marry his same-sex partner, Billard brought suit for sex discrimination under Title VII of the Civil Rights Act. The district court granted Billard’s motion for summary judgment, rejecting the school’s argument that religious exceptions inoculated them against Billard’s claim. Now, the Fourth Circuit Court of Appeals has weighed in, reversing the district court’s decision, and entering judgment for the school. This is a tricky and emotional situation, and one would be forgiven for an impassioned reaction – no matter which side of the issue you’re on. Yet, from both a policy and practicality standpoint, you cannot be a teacher charged with imparting a given set of spiritual values while acting in public violation of them. Religious institutions must be able to restrict their staff positions – particularly teaching positions – to those who hold their same beliefs. Otherwise, religion would cease to mean much at all. A Methodist could teach at a mosque, an atheist at a Baptist church school, or an evangelical Christian at a high school atheist club. CCHS describes itself as “an educational community centered in the Roman Catholic faith that teaches individuals to serve as Christians in our changing world.” It posits that “individuals should model and integrate the teachings of Jesus in all areas of conduct in order to nurture faith and inspire action,” and that “prayer, worship and reflection are essential elements which foster spiritual and moral development of [CCHS’s] students, faculty and staff.” Indeed, all members of the teaching staff are expected to play a part in promoting the Christian faith. This includes leading prayers, attending Mass, and ensuring the “catholicity” of their classrooms. As such, the Fourth Circuit found that CCHS’ employment decision fell under a “ministerial exception” to Title VII. We think a better term today is a “religious mission exception,” one that covers all the positions in which those who work in a particular faith are expected to model it for others. As the Court wrote, “settled doctrine tailored to facts like these – the ministerial exception – already immunizes CCHS’s decision to fire Billard.” Drawing from the Supreme Court’s 2020 ruling in Our Lady of Guadalupe Sch. v. Morrissey-Berru, the Fourth Circuit concluded that CCHS tasked Billard with “vital religious duties,” effectively making him a “messenger” of the faith. Thus, related employment decisions require the courts to stay out. The CCHS/Billard controversy is not an ideal situation for anyone, and an employer’s similar actions in nearly any other scenario would constitute illegal discrimination. The long-established ministerial exception, however, requires the courts to abstain from weighing in on ecclesiastical employment matters – and for good reason: the First Amendment requires it, and it protects the beliefs of everyone. The just-completed Memorial Day celebration, for Virginians at least, highlighted two of our most sacred American traditions: honoring our fallen soldiers and celebrating our religious freedom.
In an unequivocal victory for the First Amendment, the National Park Service backtracked and allowed the Knights of Columbus to conduct their annual Memorial Day Mass at the Poplar Grove National Cemetery in Petersburg, Virginia. The change in course followed NPS’s denial of a permit for the Catholic fraternal organization (for the second year in a row), a decision which it based on a 2022 policy memorandum restricting the types of events that may be held within national cemeteries. The Knights of Columbus have celebrated a Memorial Day Mass at Poplar Grove since the 1960s. After learning that their permit request was again denied, the group filed for an injunction in coordination with the First Liberty Institute and the McGuireWoods law firm. In their brief, the Knights explain that NPS decided to interpret their religious service as a “demonstration,” and thus impermissible under current regulations. They write: “By prohibiting the Knights from exercising their religious convictions and expressing their patriotism by praying for and honoring the fallen through a Catholic mass held inside the cemetery, NPS is misapplying its own regulations, unlawfully infringing on the Knights’ First Amendment rights and violating the Religious Freedom Restoration Act (RFRA).” That this blatant constitutional disregard occurred in Virginia – arguably the birthplace of America’s tradition of religious freedom (see Jefferson’s Virginia Statute for Religious Freedom, passed in 1786) – makes it all the more surprising. Some credit might be afforded to the Biden Administration for reversing course here (though the denial never should have happened in the first place). More importantly, our gratitude goes out to the Knights of Columbus for standing up for the First Amendment – and proving in the process that we don’t have to accept a shrinking space for religious liberty. These are, after all, freedoms that Americans have fought for and died to protect. Protect The 1st is proud to announce our filing of an amicus brief before the U.S. Supreme Court in a pivotal case challenging a law in Michigan that restricts the religious rights of parents.
This legal challenge opposes what is known as a Blaine Amendment. This lawsuit is spearheaded by a group of Michigan parents confronting the amendment's prohibition on state aid to private, religiously affiliated schools. They show that it violates the Equal Protection Clause by denying families the opportunity to advocate for the freedom to choose educational options that align with their religious values. The origins of Blaine Amendments are steeped in ugly history marked by discrimination and bigotry. Initially proposed as a federal law in 1875 by House Speaker James G. Blaine, these amendments seek to prevent direct government aid to religiously affiliated educational institutions. They reflect a period of intense anti-Catholic sentiment, targeting the influx of Catholic immigrants and their schools. While the federal amendment failed, many states, including Michigan, adopted similar provisions. Michigan's Blaine Amendment, like those of other states, effectively bars state support for religious schools, impacting those who seek education aligned with their religious beliefs and cultural values. Protect The 1st believes that such amendments are not only a relic of a prejudiced past but continue to infringe on our First Amendment rights today. They undermine the pluralism that is vital to our nation’s educational landscape by restricting access to diverse schooling options that reflect familial and cultural values. This approach runs counter to the essence of American liberty and the pursuit of happiness, which includes the right of parents to direct their children's education. Our brief celebrates the opportunity to challenge Michigan’s outdated and discriminatory Blaine Amendment. By standing with the petitioners, we aim to affirm the importance of educational choice and religious freedom, ensuring that all families have the right to educate their children in a manner consistent with their beliefs. Just five days after the petitioners filed before the U.S. Supreme Court, the Court called for a response in this case, a positive sign that the Court is seriously considering granting it cert. Protect The 1st looks forward to further developments in this case. Loffman v. California Department of EducationChaya and Yoni Loffman in RealClearPolicy:
“When we learned that our three-year-old son had autism, we knew that finding the right school would be hard. But we were confident that with the right help and resources, our son could thrive. “Unfortunately, California politicians disagree. When public schools fail to meet the needs of students with disabilities, the federal and state funding for that student can be redirected to private schools that are better able to accommodate their disabilities. But while California lets secular private schools receive these funds, it completely excludes religious private schools, simply because they are religious.” Michael Helfand and Maury Litwack in The Hill “A group of Los Angeles Jewish parents, children and two schools were in court this week challenging a California law that explicitly bans religious schools from becoming state-certified special needs schools, all the while allowing other private schools the ability to apply for the same state-certification. “The consequences of this law have long been devastating, preventing the Jewish community from accessing the necessary funds to build and operate educational institutions that can meet the needs of its special-needs community. “But California’s unlawful exclusion has taken on greater urgency in recent months as allegations of rampant antisemitism have plagued California educational institutions from public schools to college campuses. Now, California’s rules put Jews in a damned-if-you-do, damned-if-you-don’t dilemma: You can’t have your own schools, and when you come to our schools, be prepared for an environment hostile to your Jewish identity and practices. California cannot allow this state of affairs to continue.” The latest from FIRE, the Foundation for Individual Rights and Expression. Iowa has proudly become the 27th state to enact its own version of the Religious Freedom Restoration Act (RFRA), reinforcing the Hawkeye State’s commitment to the right of religious expression. This landmark legislation underscores Iowa's alignment with a majority of states that have already recognized the importance of protecting religious freedoms at the state level. By adopting RFRA, Iowa joins a diverse coalition of states – from Massachusetts to Texas – committed to safeguarding the freedoms that form the cornerstone of American values.
RFRA is designed to ensure that any government action potentially infringing on religious practices serves a compelling governmental interest in the least restrictive manner possible. Iowa’s RFRA reflects the Hawkeye State’s deep respect for individual rights and religious diversity. This law isn't merely a replication of the federal RFRA passed thirty years ago, but a reaffirmation of a commitment seen across a spectrum of states, both red and blue. The original federal law, championed by political figures such as Chuck Schumer and Ted Kennedy and signed by President Bill Clinton, showcases the bipartisan foundation upon which the RFRA stands. Such historical bipartisanship highlights the act's fundamental purpose: protecting religious freedoms. While concerns have been raised about potential misuses of the RFRA, particularly regarding discrimination against LGBTQ individuals, states with longstanding RFRAs like Connecticut and Illinois have been recognized as among the best for LGBTQ rights. These examples demonstrate that RFRAs can coexist with strong protections for minority communities. The Becket Foundation reminds us that RFRAs have historically defended the rights of various minority groups – from Native Americans to Muslims and Sikhs – against governmental overreach without negating anti-discrimination laws concerning race or gender. Religious freedom is no zero-sum game. The adoption of RFRA in Iowa also coincides with a national shift towards more robust protections of individual rights, as seen in the prairie fire expansion of school choice from coast-to-coast. This trend reflects a growing recognition of the importance of safeguarding personal freedoms against governmental overreach. More states should take Iowa’s example to heart. Respecting deeply held religious beliefs and protecting civil rights are not mutually exclusive objectives. The continued expansion of RFRA laws could serve as a model for maintaining harmony between personal liberties and social obligations, ensuring that religious freedom remains a protected and cherished American value. Protect The 1st congratulates Gov. Kim Reynolds on her accomplishment and urges every state to join the push to protect religious freedom. The Becket Foundation is seeking to restore the ability of Mike and Kitty Burke to foster children in Massachusetts. As PT1st observed last year, the state blocked the Burkes from participating in the state foster program because they hold traditional Catholic views on gender and sexuality. The problem with the Burkes, the social worker wrote in her report, is that “their faith is not supportive, and neither are they.” But is that fair? The state enforces this policy despite the more than 1,500 unplaced minors in the system, some living in hotels. Blocking traditional religious couples from participating in a program that sorely needs more foster parents is just asking for children to grow up in a system, not a family. It sets a worrying precedent that millions of religious Americans can be blocked from state programs simply for holding traditional religious views. Watch this compelling video from Becket: A case from Grants Pass, Oregon, presents a compelling study and examination of the role that religious charities play in helping the helpless.
In 2018, a group of homeless people sued the City of Grants Pass over its municipal ordinances – and hefty fines – meant to prohibit sleeping on public land. Specifically, the group alleged violations of the Eighth Amendment, which bans “cruel and unusual punishment.” In 2023, the Ninth Circuit Court of Appeals ruled for the plaintiffs using its own particularized formula that bans the prosecution of homeless people if there “is a greater number of homeless individuals … than the number of available” shelter beds. At the same time, the court relied on precedent asserting that shelters with a “mandatory religious focus” could not be included in their calculations due to possible violations of the Constitutional prohibition against the establishment of religion. Whatever one thinks of the underlying issue about rights and responsibilities regarding homelessness, the Ninth Circuit’s disregard for religious charitable organizations shows a broader legal hostility towards religion itself. Worse, it discounts religious institutions’ many contributions to social welfare and safety. In 1971, the Supreme Court held in Lemon v. Kurtzman that state statutes do not violate the Establishment Clause if they: 1) have a secular purpose 2) do not advance or inhibit religion, and 3) do not result in “excessive government entanglement” with religion. The test was used repeatedly as a means to disenfranchise – or entirely disregard – religious institutions that contribute to the public good. In 2022’s Kennedy v. Bremerton School District, U.S. Supreme Court Justice Neil Gorsuch instructed lower courts to ignore Lemon, instead directing them towards a historical analysis that takes into account what was understood as a religious “establishment” when our nation was founded. Unfortunately, this guidance is largely disregarded across the United States. As the Becket Fund writes, “[f]or decades, the Lemon test had caused courts to incorrectly apply the Establishment Clause, driving religious people and religious ideas out of public life. Even though Lemon was overturned, many lower courts, including ones within the Ninth Circuit, continue to rely on it.” Becket’s amicus brief before the U.S. Supreme Court, which is set to review the case soon, urges the justices to “reiterate that courts should apply a historical test” when deciding on Establishment Clause violations. Much is at stake behind this seemingly esoteric legal issue. Religious institutions unquestionably have always had and continue to have a major role in providing a social safety net in the United States. Continuing to rely on the Lemon test, which categorically excludes religious organizations from public life due to their “overall religious atmosphere,” is a gross overextension and misinterpretation of the First Amendment’s Establishment Clause. As the Becket Fund notes, it “confuses private and state action” when it comes to making distinctions about religion. Overall, this ruling is indicative of widespread local government dismissal of, or even hostility toward, the social contributions of people of faith. If a theocracy is one extreme the courts wish to avoid, a secular lack of acceptance for religious pluralism is the opposite extreme. Governments should welcome religious institutions that provide social safety nets. And it starts with the rejection of a reactionary, overruled legal doctrine that discredits the civic contribution of religious charities. Dissenting Judge: “Will prevent worshipers from ever again exercising their religion” |
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