6th Circuit Hears Oral Arguments In Case of Prof Who Refused To Use Student's Preferred Pronouns

The U.S. 6th Circuit Court of Appeals on Thursday heard oral arguments in Meriwether v. Hartop.(Audio of full oral arguments.) In the case, an Ohio federal district court dismissed a lawsuit by a college philosophy professor who was disciplined by a university when he refused to abide by the school's non-discrimination policy.  The professor refused to address a transgender student using the student's preferred gender identity title and pronouns, and instead used only the student's name. (See prior posting.) Portsmouth Daily Times reports on the oral arguments.

11th Circuit Strikes Down Conversion Therapy Ban

 In Otto v. City of Boca Raton, Florida, (11th Cir., Nov. 20, 2020), the U.S. 11th Circuit Court of Appeals, in a 2-1 decision, struck down city and county ordinances in Florida that ban therapists from engaging in counseling or therapy aimed at changing a minor’s sexual orientation, reducing a minor’s sexual or romantic attractions, or changing a minor’s gender identity or expression. Support to minors undergoing gender transition, however is permitted. The majority said in part:

We understand and appreciate that the therapy is highly controversial. But the First Amendment has no carveout for controversial speech. We hold that the challenged ordinances violate the First Amendment because they are content-based regulations of speech that cannot survive strict scrutiny...

This decision allows speech that many find concerning—even dangerous. But consider the alternative. If the speech restrictions in these ordinances can stand, then so can their inverse. Local communities could prevent therapists from validating a client’s same-sex attractions if the city council deemed that message harmful.... People have intense moral, religious, and spiritual views about these matters—on all sides. And that is exactly why the First Amendment does not allow communities to determine how their neighbors may be counseled about matters of sexual orientation or gender.

Judge Martin, dissenting, said in part:

The majority is correct to say this case implicates sensitive considerations about when and how government bodies may regulate speech. Instances in which a speech restriction is narrowly tailored to serve a compelling interest are deservedly rare. But they do exist.... I believe the Localities’ narrow regulation of a harmful medical practice affecting vulnerable minors falls within the narrow band of permissibility.

Palm Beach Post reports on the decision.

Suit Challenges DC's Refusal To Allow "Black Pre-Born Lives Matter" Mural on Street

Suit was filed this week in D.C. federal district court challenging the constitutionality of D.C.'s refusal to allow protesting groups to paint a mural reading "Black Pre-Born Lives Matter" on the street near a Planned Parenthood Clinic. It also barred the chalking of the same message. The complaint (full text) in Frederick Douglass Foundation, Inc. v. District of Columbia, (D DC, filed 11/18/2020) points out that murals reading "Black Lives Matter" and "Defund the Police" were permitted to be painted along other D.C. streets. Plaintiffs contend that this differential treatment violates their free speech, equal protection and free exercise rights.  ADF issued a press release announcing the filing of the lawsuit.

Suit Filed Over School's Ban On Religious Messages On COVID-19 Masks

Suit was filed yesterday in a Mississippi federal district court challenging the policy of a Mississippi elementary school that prohibits display of religious (as well as political and sexual) messages on masks worn during the COVID-19 pandemic. The complaint (full text) in L.B. v. Simpson County School District, (SD MS, filed 11/2/2020), alleges that school officials would not allow a third-grade student to wear her mask that displayed the phrase "Jesus Loves Me". The suit claims this amounts to violation of the free speech, free exercise and due process clauses. ADF issued a press release announcing the filing of the lawsuit.

Suit Challenges Michigan Mask Mandate Imposed On Catholic School

Suit was filed last week in a Michigan federal district court challenging state COVID-19 orders requiring elementary school students to wear masks during the school day. The complaint (full text) in Resurrection School v. Gordon, (WD MI, filed 10/22/2020), alleges, among other things, that the requirement violates students' free exercise and free speech rights. The complaint, brought by a Catholic school along with some students and parents, alleges in part:

At the start of the school year in August 2020, Plaintiffs C.M., Z.M., and N.M. were beginning to engage in Catholic fellowship with their classmates and form relationships with other children based upon the teachings and example of Jesus Christ. Mandating Plaintiff Mianecki’s young children to wear facial coverings is hindering the formation of these bonds and prevents the body of Christ from freely associating....

When wearing facial coverings, Plaintiffs C.M., Z.M., and N.M struggle to engage in and celebrate the Mass....

For many, including Plaintiffs, forcing them to wear a face mask is forcing them to convey a message with which they disagree even when socially distanced in private homes or non- public schools. Wearing a mask conveys the message that the wearer has surrendered his or her freedom to the government, particularly in light of the facts of this current declared pandemic. During this current political climate, a mask has become a symbol. And because a mask has become a political symbol, the wearing of a mask is a form of symbolic speech. Consequently, via the mask mandates, Defendants are compelling Plaintiffs to engage in a form of expression and to convey a message with which they disagree.

Lansing State Journal reports on the lawsuit.

6th Circuit: Bus Ad Ban Is Unconstituitonal

In American Freedom Defense Initiative v. Suburban Mobility Authority for Regional Transportation (SMART), (6th Cir., Oct. 23, 2020), the U.S. 6th Circuit Court of Appeals held unconstitutional a Detroit public transit authority's rejections of an ad aimed at Muslims considering leaving Islam. The ad read:

Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got Questions? Get Answers! RefugefromIslam.com.

The ads were rejected under rules banning political ads and ads that hold up a group of people to scorn or ridicule.  The court said in part:

SMART’s ban on “political” ads is unreasonable for the same reason that a state’s ban on “political” apparel at polling places is unreasonable: SMART offers no “sensible basis for distinguishing what may come in from what must stay out.” Mansky, 138 S. Ct. at 1888. Likewise, SMART’s ban on ads that engage in “scorn or ridicule” is not viewpoint neutral for the same reason that a ban on trademarks that disparage people is not viewpoint neutral: For any group, “an applicant may [display] a positive or benign [ad] but not a derogatory one.” Matal v. Tam, 137 S. Ct. 1744.

Courthouse News Service reports on the decision. [Thanks to Steven H. Sholk for the lead.]

4th Circuit Hears Oral Arguments In Conversion Therapy Ban Challenge

Yesterday the U.S. 4th Circuit Court of Appeals heard oral arguments in Doyle v. Hogan. (Audio of full oral arguments.) In the case, a Maryland federal district court dismissed free speech and free exercise of religion challenges to Maryland's ban on mental health professionals engaging in conversion therapy with minors. (See prior posting.) Courthouse News Service reported on yesterday's proceedings, saying that questions of standing to sue dominated the arguments.

University Student Government Court Orders Reinstatement of Student Senate President Ousted For Religious Views

 In a 19-page decision, the Florida State University Student Supreme Court held that a Catholic student who had been removed as Student Senate president because of religious views he expressed criticizing Black Lives Matter, the ACLU and Reclaim the Block as taking views opposed to Catholic teachings. The decision in Denton v. Daraldik, (FL Student Sup. Ct., Oct. 26, 2020), ordering plaintiff's reinstatement as Student Senate president, said in part:

Plaintiff was acting in his capacity as a private citizen when he made the statements for which he was removed. Plaintiff sent messages in the CSU group chat. The Catholic Student Union, while funded by SGA, operates to promote the teachings of the Catholic Church.... 

The Senates treatment of Plaintiff’s case violated its obligation under the First Amendment not to take action that is hostile to a religion or religious viewpoint. The Senators’ during debate reveal that they were neither tolerant nor respectful of Plaintiff’s religious beliefs when they held their vote of no-confidence. Here, as in Masterpiece, Plaintiff was entitled to a neutral decisionmaker who would give full and fair consideration to his sincerely held religious beliefs. The Senate did not act as a neutral decisionmaker in this case.

ADF issued a press release announcing the decision. (See prior related posting.)

Student Sues Over Ban On Shirt With Anti-Gay Message

Suit was filed in a Tennessee federal district court last week by a high school student and her father challenging a public school's interpretation of a Policy in its Student Handbook that bars clothing with offensive messages, including sexual connotations.  The school insisted that the Policy prohibits plaintiff from wearing a shirt featuring the message "homosexuality is a sin-- 1 Corinthians 6:9-10".  The suit contends that this violates plaintiff's free exercise and free speech rights. The complaint (full text) in B.A.P. v. Overton County Board of Education, (MD TN, filed 10/16/2020), alleges in part:

Plaintiffs have a personal belief in the Biblical mandate to spread the Gospel of Jesus Christ, and Plaintiff B.A.P. engages in activities, for the purpose of spreading the Gospel of Jesus Christ, that are prohibited by the [school's] Policy.

WZTV reports on the lawsuit.

Student Senate President Who Was Removed For His Religious Views Gets Limited Relief

In Denton v. Thrasher, (ND FL, Oct. 8, 2020), a Florida federal district court held that Florida State University's Student Senate acted unconstitutionally when it removed Jack Denton as Student Senate president. (He remained a member of the Senate.)  Student Senate took the action after Denton's private chat room comments were publicly circulated.  The offending remarks were:

BlackLivesMatter.com fosters “a queer-affirming network” and defends transgenderism. The ACLU defends laws protecting abortion facilities and sued states that restrict access to abortion. Reclaim the Block claims less police will make our communities safer and advocates for cutting PDs’ budgets. This is a little less explicit, but I think it’s contrary to the Church’s teaching on the common good....

I don’t mean to anger anyone – I know this is a very emotional topic. However, it is important to know what you’re supporting when you’re Catholic. If I stay silent while my brothers and sisters may be supporting an organization that promotes grave evils, I have sinned through my silence. I love you all, and I want us all to be aware of the truth. As far as it’s a religious issue or not, there isn’t an aspect of our lives that isn’t religious, because God wants our whole lives and everything we do to be oriented around him!

The court said in part:

Denton is not here to complain about insults or hurt feelings. His claim is that he lost his job—his student government position—because he chose to exercise his First Amendment rights.

The court however limited its relief to an order that Denton be paid for the six hours per week for the rest of the term that he would have served as Student Senate president. It refused to order that Denton be reinstated to his position since that could produce "tumult and chaos."  Inside Higher Ed reports on the decision.

Dakota Access Pipeline Protesters Can Move Ahead On Free Speech, But Not Free Exercise, Claims

In Thunderhawk v. County of Morton, North Dakota, (D ND, Sept. 1, 2020), plaintiffs challenged on numerous constitutional grounds North Dakota's closure of Highway 1806 which was used by the Standing Rock Sioux Tribe and thousands of its supporters to access campsites set up to protest construction of the Dakota Access Pipeline. In a 101-page opinion (which has just been widely made available) the court allowed plaintiffs to move ahead with their claims that the closure prevented them from engaging in protected speech and amounted to a prior restraint on speech. The court however rejected plaintiffs' free exercise claims, saying in part:

While the Plaintiffs provided facts in the Amended Complaint to suggest the Defendants’ actions in closing the road may not meet strict or intermediate scrutiny for their free speech claims, they have failed to allege facts suggesting the road closure may not meet rational basis as it relates to their free exercise claim. Because the Plaintiffs have failed to meet this burden, and as a result of neither Smith exceptions applying in this case to heighten the standard to strict scrutiny, Claim II is dismissed.

The court also rejected a variety of other constitutional challenges including right to travel and commerce clause claims. Turtle Talk blog has links to all the pleadings in the case.

Alabama's Voter Registration Oath Is Challenged

Yesterday four Alabama residents filed suit challenging language in Alabama's voter registration form. The oath in the form ends with "so help me God." No secular alternative is available.  The complaint (full text) in Cragun v. Merrill, (ND AL, filed 10/01/2020) contends that the absence of a secular alternative violates the Establishment, Free Exercise, Free Speech and Equal Protection Clauses. Freedom From Religion Foundation issued a press release announcing the filing of the lawsuit.

Court Temporarily Halts Enforcement of Tennessee's Mandated Abortion Reversal Disclosures

 In Planned Parenthood of  Tennessee and North Mississippi v. Slatery, (D TN, Sept. 29, 2020), a Tennessee federal district court issued a temporary restraining order barring enforcement of a Tennessee law scheduled to take effect Oct. 1 which requires abortion providers to tell patients that medication abortions, once started, can be reversed. Plaintiffs claim that this violates their 1st Amendment rights by forcing them to provide patients with inaccurate information. In temporarily restraining enforcement of the law, the court said in part:

The Court is unable to assess fully the competing expert opinions as to whether the mandated message is “truthful and not misleading,” in the absence of the experts’ testimony, adduced through direct and cross examination. That assessment must await the preliminary injunction hearing....

Nevertheless, the Court does not need to await the hearing to determine that another aspect of the mandated message is “misleading.” The statute gives the Department of Health a period of up to 90 days in which to publish information, on its website and in printed materials, about the possibility of reversing the effects of a chemical abortion.... Section 218 requires abortion providers to tell patients that “information on and assistance with reversing the effects of a chemical abortion” is available on the Department of Health website, when in fact, such information and assistance may not be available.

Courthouse News Service reports on the decision. [Thanks to Scott Mange for the lead.]

Israel's High Court Says Disciplinary Panel Required For Municipal Rabbi's Comments

 A 3-judge panel of Israel's High Court of Justice ruled yesterday that the country's Chief Rabbinate must convene a disciplinary panel to try Safed's Chief Rabbi Shmuel Eliyahu. Jerusalem Post and Haaretz report on the decision. At issue are a number of statements by Eliyahu critical of Arabs and of the LGBTQ community. Also at issue are political statements by Eliyahu. The judges each wrote about the balance between free speech and limits on what a state-funded municipal rabbi may say. Now, according to Jerusalem Post:

Justice Minister Avi Nissenkorn of the Blue and White Party now needs to request that Chief Rabbi Yitzhak Yosef form a disciplinary panel for Eliyahu.

Yosef needs to form that panel, consisting of a rabbinical court judge or emeritus judge and two municipal chief rabbis, within 30 days. The panel can record a note in Eliyahu’s file, issue him with a warning, reprimand him or dismiss him from his position.

Mask-In-School Requirement Challenged On Free Exercise Grounds

Suit was filed last week in an Ohio state trial court challenging as too narrow the religious exemption from Ohio's COVID-19 mask requirement in schools. The complaint (full text) in Miller v. Himes, (Putnam Cty. Com Pl., filed Sept. __, 2020), contends that the exemption for students "when an established sincerely held religious requirement exists which does not permit a facial covering" violates their free exercise rights. A school district denied an exemption to one of the plaintiffs even though she had a sincerely held religious belief  opposing masks. The district took the position that a belief is different from a religious requirement.  The suit also challenges the school mask requirement on various other grounds, including compelled speech and parental rights claims. Cincinnati Enquirer reports on the lawsuit.

DOE Issues Final Rule On College Free Speech and Equal Treatment of Student Religious Groups

Yesterday, the U.S. Department of Education announced the release of its Final Rule (full text) conditioning government grants on protections of free speech rights and equal treatment of religious organizations. Summarizing the 246-page Release, DOE said in part:

[P]ublic colleges and universities must comply with the First Amendment as a requirement to receive Department grants. Private institutions of higher education must comply with their own stated institutional policies regarding freedom of speech, including academic freedom, as a requirement of Department grants.... 

Second, the rule clarifies how an institution may demonstrate that it is controlled by a religious organization for purposes of Title IX. Federal law provides that Title IX “shall not apply” to educational institutions that are “controlled by a religious organization,” to the extent that application of Title IX would not be consistent with the religious tenets of such organization....

Third, the rule ensures equal treatment of religious student organizations at public colleges and universities. As a requirement of the Department’s grants, public colleges and universities must not deny to a religious student group any of the rights, benefits, or privileges that other student groups enjoy. For example, a religious student group must have the same rights as other student groups at the public institution to receive official recognition, to use the institution’s facilities, and to receive student fee funds. Equal treatment of religious student groups is now a material condition of the Department’s grants.  

Fourth, the rule revises regulations governing some discretionary grant programs under Titles III and V of the Higher Education Act.... Current regulations could prohibit a school from using such a grant for even secular activities or services such as teaching a course about world religions. The rule more narrowly tailors the prohibition on the use of these grants to religious instruction, religious worship, or proselytization. The rule also ... clarif[ies] that institutions are not prohibited from using grants for a secular department of religion.

Education Dive reports on the new Rule.

Court Denies Summary Judgment In Attempt To Permanently Enjoin Disclosure Requirements By Pro-Life Pregnancy Centers

 In National Institute of Family and Life Advocates v. Rauner, (ND IL, Sept. 3, 2020), an Illinois federal district court denied summary judgment to two pro-life crisis pregnancy centers that are seeking to permanently enjoin enforcement of an Illinois statutory provision conditioning immunity for health care providers on their disclosure of medical options, including those that conflict with their religious beliefs. They must also facilitate patients' obtaining such services from others. In 2017, a different federal district court judge issued a preliminary injunction against enforcement of the Act. (See prior posting.) In refusing at this stage of litigation to make the injunction permanent, the court said in part:

In this litigation, Plaintiffs allege that the CPCs’ ability to promote their religiously motivated pro-life messaging ... are threatened by changes to the Illinois Healthcare Right of Conscience Act adopted in 2016....The law will compel them, Plaintiffs assert, to discuss the benefits of treatments they deem objectionable: abortion, contraception, or sterilization. Likewise, under the law, Plaintiffs must facilitate those treatments by providing patients with lists of doctors who provide those services or by transferring or referring patients to them. Both requirements violate Plaintiffs’ First Amendment Speech and Free Exercise rights, they claim....

Starting with the requirement to discuss the benefits of abortion, the court agrees with Defendant that as in Casey, this is a regulation of professional conduct that only incidentally burdens speech....

The court is mindful that from Plaintiffs’ perspective, the law compels speech on a message antithetical to their beliefs and thereby contradicts this Free Speech principle. But the court too recognizes that Plaintiffs’ patients are no less deserving of this right to decide for themselves what ideas are worth considering and adhering to, and the state may be well within its powers to protect this principle in a context involving “matters of the highest privacy and the most personal nature.”...

If the law does no more than bring the regulations of conscience objectors into conformity with that of other medical professionals (again, still a disputed issue), then the amended HCRCA may not be characterized as discriminating against religious medical professionals. The law’s text and history ... suggest instead that the legislature adopted the changes due to legitimate concerns about patient access to healthcare and not out of a desire to stifle religiously-motivated conduct.

Church Says Signage Required To Exclude Guns Burdens Free Speech

Suit was filed in a Texas federal district court earlier this week by a Unitarian Church (and another plaintiff) challenging a Texas law that makes it difficult to exclude individuals carrying firearms from one's property. The complaint (full text) in Bay Area Unitarian Universalist Church v. Paxton, (SD TX, filed 9/2/2020) alleges in part:

Texas has ignored the First Amendment and enacted legislation that singles out a group with which it disagrees—those who prefer to keep guns off of their property—and selectively burdens their speech. Specifically, Texas property owners who espouse this viewpoint must post multiple large, text-heavy signs containing language specified by the State in order to exercise the longest established and most fundamental of their property rights: the right to exclude. If these property owners use other means of indicating that firearms are not welcome on the premises—even if entirely reasonable and understandable—they cannot avail themselves of Texas’s criminal trespass laws. By contrast, property owners who wish to exclude others for any other reason at all do not face these same burdens. This viewpoint-based discrimination was entirely intentional....

The Church has an official policy that forbids carrying firearms, whether open or concealed, onto church property....  One of the most fundamental religious tenets of the Church is to address conflict through conversation, non-violence, love, and compassion. The Church believes that the signs required by the Acts detract from those religious principles.

[Thanks to Scott Mange for the lead.] 

7th Circuit: COVID-19 Order Exempting Religious Services Is Valid

 In Illinois Republican Party v. Pritzker, (7th Cir., Sept. 3, 2020), the U.S. 7th Circuit Court of Appeals rejected arguments by the Illinois Republican Party that Illinois Governor J.B. Pritzker's COVD-19 Order limiting gatherings (including political gatherings) to 50 people is unconstitutional because there is an exemption from the limit for religious services. The court, denying a preliminary injunction, said in part:

A careful look at the Supreme Court’s Religion Clause cases, coupled with the fact that EO43 is designed to give greater leeway to the exercise of religion, convinces us that the speech that accompanies religious exercise has a privileged position under the First Amendment, and that EO43 permissibly accommodates religious activities....

Because the exercise of religion involves more than simple speech, the equivalency urged on us by the Republicans between political speech and religious exercise is a false one.... Free exercise of religion enjoys express constitutional protection, and the Governor was entitled to carve out some room for religion, even while he declined to do so for other activities.

Jurist reports on the decision.  [Thanks to Steven H. Sholk for the lead.]

Catholic Student Sues After He Is Removed As University Student Senate President Because of His Views

Suit was filed this week in Florida federal district court claiming that plaintiff's free speech and free exercise rights were infringed when he was removed as president of Florida State University's Student Senate.  The complaint (full text) in Denton v. Thrasher, (ND FL, filed 8/31/2020), alleges in part:

Mr. Denton is a devout Catholic, and he expressed basic Catholic teachings to other Catholic students in a private group chat. But, because Catholic teachings have implications for some social issues that some consider offensive, those messages were shared, student outrage was fomented, and the Student Senate implemented an ad hoc religious test for office: no one with Mr. Denton’s beliefs can hold a leadership position in our Student Senate (even if they only talk about those beliefs in private)....

The complaint describes the contents of plaintiff's group chat with members of the Catholic Student Union:

One student shared a link to a video on YouTube that raised advertising and donation revenue for several organizations.... Mr. Denton observed that, “The various funds on that list are fine causes as far as I know, but everyone should be aware that BlackLivesMatter.com, Reclaim the Block, and the ACLU all advocate for things that are explicitly anti-Catholic.” ... “BlackLivesMatter.com fosters ‘a queer-affirming network’ and defends transgenderism. The ACLU defends laws protecting abortion facilities and sued states that restrict access to abortion. Reclaim the Block claims less police will make our communities safer and advocates for cutting PDs’ budgets. This is a little less explicit, but I think it’s contrary to the Church’s teaching on the common good.”

ADF issued a press release announcing the filing of the lawsuit.