Canadian Tribunal Finds Anti-Transgender Election Pamphlet Amounts To Illegal Discrimination

In Canada, the British Columbia Human Rights Tribunal last week held that a Christian activist violated the province's Human Rights Code when he circulated a pamphlet attacking a candidate for the province's Legislative Assembly because of her transgender status.  In Oger v. Whatcott, (BCHRT, March 27, 2019), the Tribunal held that William Whatcott's conduct amounted to unlawful hate speech and discrimination against transgender advocate Morgane Ogerunder.  At issue was the application of Section 7 of the Human Rights Code which prohibits publications that, among other things, indicate an intent to discriminate or which likely expose a person to hatred or contempt on the basis of their gender identity or expression. As described by the Tribunal:

Mr. Whatcott created a flyer entitled “Transgenderism vs. Truth in Vancouver‐False Creek” [Flyer]. In it, he called Ms. Oger a “biological male who has renamed himself… after he embraced a transvestite lifestyle”. He expressed a concern “about the promotion and growth of homosexuality and transvestitism in British Columbia and how it is obscuring the immutable truth about our God given gender”. He described being transgender as an “impossibility”, which exposes people to harm and constitutes a sin. Mr. Whatcott ended the Flyer with a call to action: do not vote for Ms. Oger or the NDP.

In its 105-page opinion, the Tribunal rejected Whatcott's freedom of expression and religion defenses, balancing the Charter of Rights and Freedoms against the objectives of human rights legislation. Toronto Star reports on the opinion.

Iowa Governor Signs Campus Free Speech Bill

Yesterday, Iowa Governor Kim Reynolds signed SF 274 (full text), a bill that is designed to protect free speech at public universities. The new law requires the state Board of Regents and the board of each community college to adopt an extensive policy to protect speech and expression. Among other things, it bars public universities from limiting non-commercial speakers to a free-speech zone.  As reported by Iowa State Daily, the section of the new law that has raised the most controversy is Section 3(3) which prohibits denying benefits to a student organization because it requires that its leaders agree to and support the organization's beliefs as interpreted by the organization.  This presumably allows religious organizations that oppose same-sex relations to bar members of the LGBTQ community from leadership positions.

Consent Decree Defines Protected Anti-Abortion Activity

A consent decree (full text) was issued last week in Zastrow v. City of Toledo, (ND OH, March 19, 2019), enjoining the city of Toledo, Ohio from enforcing various City Code provisions against anti-abortion demonstrators engaged in non-obstructive, expressive activity on public sidewalks and medians outside a Toledo abortion clinic. The decree included a detailed description of the kind of expressive activities that are protected:

3. The “non-obstructive, expressive activity of pro-life demonstrators” ... includes activity protected by the First Amendment, including, but not limited to unamplified prayer, preaching, worship, singing worship songs, playing worship songs with instruments such as the acoustic guitar and violin, holding pro-life signs, distributing literature, and engaging passersby with their pro-life message.

4. The parties agree that the term “non-obstructive, expressive activity” means activity protected by the First Amendment that does not physically prevent a pedestrian from using a public sidewalk or other public way or that does not physically impede a vehicle from traveling on a public road or street. This does not mean that the person or persons engaging in the First Amendment activity must be moving all the time. Additionally, the First Amendment activity is not “obstructive” because a pedestrian might have to walk around the person engaging in the expressive activity. It is only “obstructive” when the person engaging in the First Amendment activity physically prevents a pedestrian from using the public sidewalk or prevents a vehicle from entering onto the premises....

Christian Post reports on the consent decree.

President Trump Issues Executive Order On Campus Free Speech

President Trump yesterday signed Executive Order on Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities. (Full text). In lengthy remarks (full text) delivered by the President at the signing ceremony for the Executive Order, Trump emphasized the protection of religious speech.  He  introduced three students at the ceremony.  One, the president of Students for Life at Miami University, was required to post "trigger warnings" about a display of wooden crosses representing lives of the unborn. Another student from the University of Nebraska reported she was cursed at by staff and an instructor while standing at a table representing a conservative campus group. A third student from Northeast Wisconsin Technical College was told she was restricted to the campus free speech zone to hand out Valentine cards with messages such as "You are special" and "Jesus loves you."

President Trump said in part:

Today, we are delivering a clear message to the professors and power structures trying to suppress dissent and keep young Americans — and all Americans, not just young Americans like Ellen and Kaitlyn and Polly — from challenging rigid, far-left ideology.  People who are confident in their beliefs do not censor others — we don’t want to censor others — they welcome free, fair and open debate.  And that’s what we’re demanding.

Under the policy I am announcing today, federal agencies will use their authority under various grant-making programs to ensure that public universities protect, cherish — protect the First Amendment and First Amendment rights of their students, or risk losing billions and billions of dollars of federal taxpayer dollars.

The Executive Order itself, however, is vaguer, saying:

It is the policy of the Federal Government to: (a)  encourage institutions to foster environments that promote open, intellectually engaging, and diverse debate, including through compliance with the First Amendment for public institutions and compliance with stated institutional policies regarding freedom of speech for private institutions;....

To advance the policy described in subsection 2(a) of this order, the heads of covered agencies shall, in coordination with the Director of the Office of Management and Budget, take appropriate steps, in a manner consistent with applicable law, including the First Amendment, to ensure institutions that receive Federal research or education grants promote free inquiry, including through compliance with all applicable Federal laws, regulations, and policies.

Much of the Executive Order is devoted to other issues-- primarily transparency regarding the cost of college and student borrowing.

Challenge to Florida City's Conversion Therapy Ban May Move Forward

In Vazzo v. City of Tampa, (MD FL, March 5, 2019), a Florida federal district court adopted a magistrate's recommendations (Jan. 30, 2019) concluding that plaintiffs had stated plausible free speech challenges, but dismissed plaintiffs' free exercise challenges, to Tampa, Florida's ban on providing conversion therapy to minors.  The court allowed plaintiffs to move ahead with claims that the ordinance is content-based, amounts to viewpoint discrimination and a prior restraint, and that it is unconstitutionally vague and overbroad.  It also allowed plaintiffs to move ahead with claims that the ordinance violates the right of their minor clients and constituents to receive information.  Plaintiffs also stated a plausible implied pre-emption claim under state law.

Curriculum On Muslim World Does Not Violate 1st Amendment

In Wood v, Arnold, (4th Cir., Feb. 11, 2019), the U.S. 4th Circuit Court of Appeals rejected a high school student's Establishment Clause and free speech challenges to portions of classroom unit on The Muslim World.  One challenge was to the teacher's Power Point slide that included the statement that most Muslims' faith is stronger than that of the average Christian.  The other challenge was to the requirement on a work sheet for the student to fill in two words of the shahada.  The court said in part:

The use of both the comparative faith statement and the shahada assignment in Wood’s world history class involved no more than having the class read, discuss, and think about Islam. The comparative faith statement appeared on a slide under the heading “Peaceful Islam v. Radical Fundamental Islam.” The slide itself did not advocate any belief system but instead focused on the development of Islamic fundamentalism as a political force. And the shahada assignment appeared on the student worksheet under the heading “Beliefs and Practices: The Five Pillars.” Thus, the assignment asked the students to identify the tenets of Islam, but did not suggest that a student should adopt those beliefs as her own. 

Rejecting the student's compelled speech argument, the court said in part:

[T]he shahada assignment required Wood to write only two words of the shahada as an academic exercise to demonstrate her understanding of the world history curriculum. On these facts, we conclude that Wood’s First Amendment right against compelled speech was not violated.

[Thanks to Will Esser via Religionlaw for the lead.] 

Greek Court Sentences Orthodox Bishop For Anti-Gay Blog Post

AP reports that a 3-judge appeals court in the town of Aigio in southern Greece has convicted Greek Orthodox Bishop Amvrossios of violating laws against racism and of abuse of office in the appeal of the Bishop's acquittal by a lower court.  In a 2015 blog post, the prominent Bishop had urged reader to spit on homosexuals, saying: "They are not human beings, they are rejects of nature."  The court sentenced the bishop to 7 months in prison, suspended for 3 years.

New York City's Conversion Therapy Ban For Adults Challenged

Suit was filed this week in a New York federal district court challenging New York City's ban on conversion therapy.  New York City's law, unlike almost all other bans, applies to sexual orientation and gender identity change counseling for adults as well as minors.  The complaint (full text) in Schwartz v. City of New York, (ED NY, filed 1/23/2019), contends that NYC Law Number 2018/22-- which the complaint calls the "Counseling Censorship Law"-- violates the free speech and free exercise rights of both psychotherapist David Schwartz and his patients.  It also claims that the law is void for vagueness.  Dr. Schwartz in an Orthodox Jew who identifies with the Lubavitcher movement, and virtually all of his patients are Orthodox Jews.  The complaint alleges in part:

Dr. Schwartz’s patients, as well as their views about morality, human nature, and the possibility of change, are often deeply informed by their religious beliefs. These individuals believe that it is more important to live consistently with their religious values than to conform their lives to their subjective feelings. Because Dr. Schwartz shares that faith and those convictions, he is able to provide psychotherapy that understands, respects, and assists these patients towards their goals.

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

Cert. Denied In Football Coach's Firing For On-Field Prayer

Today, the U.S. Supreme Court denied certiorari in Kennedy v. Bremerton School District, (Docket No. 18-12, cert. denied 1/22/19).  In the case, the 9th Circuit affirmed the district court's denial of a preliminary injunction sought by a Washington-state high school football coach who in a challenge to his school district was suspended for kneeling and praying on the football field 50-yard line immediately after games. (See prior posting.)  In today's action, Justice Alito, joined by Justices Thomas, Gorsuch and Kavanaugh, filed a 6-page concurring statement (scroll to end of Order List), saying in part:

In this case, important unresolved factual questions would make it very difficult if not impossible at this stage to decide the free speech question that the petition asks us to review....

While I thus concur in the denial of the present petition, the Ninth Circuit’s understanding of the free speech rights of public school teachers is troubling and may justify review in the future....

What is perhaps most troubling about the Ninth Circuit’s opinion is language that can be understood to mean that a coach’s duty to serve as a good role model requires the coach to refrain from any manifestation of religious faith—even when the coach is plainly not on duty.....

While the petition now before us is based solely on the Free Speech Clause of the First Amendment, petitioner still has live claims under the Free Exercise Clause of the First Amendment and Title VII of the Civil Rights Act of 1964.... Petitioner’s decision to rely primarily on his free speech claims as opposed to these alternative claims may be due to certain decisions of this Court.

In Employment Div., Dept. of Human Resources of Ore. v. Smith ... the Court drastically cut back on the protection provided by the Free Exercise Clause, and in Trans World Airlines, Inc. v. Hardison ... the Court opined that Title VII’s prohibition of discrimination on the basis of religion does not require an employer to make any accommodation that imposes more than a de minimis burden. In this case, however, we have not been asked to revisit those decisions.

MyNorthwest reports on the decision.

Egyptian TV Host Sentenced For Program Featuring Gay Sex Worker

New York Post reported yesterday that an Egyptian trial court has sentenced a television host Mohammed el-Gheiti to one year in prison at hard labor followed by one year of surveillance, and a fine equivalent to $167 US for promoting debauchery and homosexuality.  Gheiti was also charged with contempt of religion.  The conviction stems from the appearance on his show of journalist Mustafa Mekki who posed as a gay man on the gay dating app Grindr in order to learn more about the Egyptian gay community. Also on the show was an anonymous sex worker who Mekki met on the app who said he wanted to warn other young men not to repeat his mistake.

Fired Employee Loses Suit Over Religious Content of His E-Mail Signature Block

In Sioux City, Iowa on Wednesday, a federal trial court jury rejected a claim by plaintiff who had been hired as a psychiatric security specialist that his firing during his probationary period violated his free speech and free exercise rights.  As reported by the Sioux City Journal, plaintiff Michael Mial pointed to the request by his supervisors at a state sex-offender civil commitment unit that he stop using "In Christ" in his personalized signature block on internal e-mails sent to other employees.

Suit Challenges School Limits on Flyer Distribution For Bible Event

A suit was filed this week in a California federal district court against the Huntington Beach School District for barring a 2nd and a 5th-grade student from handing out flyers promoting Focus on the Family's "Bring Your Bible to School Day."  The complaint (full text) in M.B. v. Huntington Beach City School District, (CD CA, filed 1/7/2019),  contends that plaintiffs' free speech, free exercise, equal protection and due process rights were infringed by not allowing them to distribute the flyers at lunch, recess and other non-instructional times during the school day. School officials limited the distribution to before- and after-school hours. OC Weekly reports on the lawsuit.

Suit Challenges Restrictions On Sharing Food With the Hungry

A suit was filed yesterday in a Missouri federal district court claiming that St. Louis' Temporary Food Service Ordinance is unconstitutional as applied to restrict the non-commercial sharing of food with the hungry.  The complaint (full text) in Redlich v. City of  St. Louis, (ED MO, filed 1/8/2019) pits a pastor and another Christian man who believe they have a religious obligation to feed the hungry against city enforcement officials.  It alleges in part:

Plaintiffs contend that as applied to them and to others similarly situated the Temporary Food Service Ordinance unconstitutionally and unlawfully restricts their free exercise of religion, their freedom of expression, their freedom of association, their rights of conscience, and denies them equal protection of the laws.

St. Louis Public Radio reports on the lawsuit.

Colorado Bakery Can Move Ahead With Suit Over Non-Discrimination Laws

In Masterpiece Cakeshop Inc. v. Elenis, (D CO, Jan. 4, 2018), a Colorado federal district court held that the owner of a Colorado bakery may move ahead with his suit seeking injunctive relief against enforcement of the state's anti-discrimination laws. However the court dismissed plaintiffs' damage claims on immunity grounds.  Plaintiff Jack Phillips won a U.S. Supreme Court victory last year when the Supreme Court held that the Colorado Civil Rights Commission showed impermissible hostility toward his religious objections to designing a cake for a same-sex wedding ceremony.  While that case was pending, a different customer sought a cake to celebrate her gender transition. Phillips refused to make the cake that conveyed a message in conflict with his religious belief that gender is immutable. The Commission again issued a probable cause determination and the state filed a formal complaint against Phillips. In response Phillips filed this suit claiming that the Division's bullying of him violates his free exercise, free speech, due process and equal protection rights. Catholic News Agency reports on the decision.

DC Circuit Denies En Banc Review In Bus Ad Case

Last Friday, the U.S. Court of Appeals for the D.C. Circuit, by a vote of 7-2, denied an en banc rehearing in Archdiocese of Washington v. Washington Metropolitan Transit Authority, (DC Cir., Dec. 21, 2018). In the case, a 3-judge panel rejected challenges to the WMATA's guidelines which preclude the sale of advertising space on public buses for issue-oriented advertising, including political, religious and advocacy ads. (See prior posting.) Judge Griffith, joined by Judge Kastas, filed an opinion dissenting from the denial of a rehearing, arguing in part"

WMATA allows entities like Walmart to speak on the subjects of the perfect Christmas gift (toys) and how to spend the Christmas season (buying gifts and visiting stores at specified hours). And WMATA permits the Salvation Army to run ads encouraging people to donate to certain charities. The Archdiocese would also like to express its views on the perfect Christmas gift (Christ), how to spend the holiday (caring for the needy and visiting churches for Mass at specified hours), and whether to contribute to charities (yes, and particularly to religious charities). By barring the Archdiocese from doing so, WMATA’s policy discriminates against religious viewpoints,,,,

[Thanks to James Phillips for the lead.] 

Evangelists Win Narrow Settlement Victory In Alaska Park Dispute

According to KTUU News, a father-daughter evangelist team have won a narrow victory in the settlement of their lawsuit against the city of Girdwood, Alaska.  They sued challenging the city's "No dogs, no politics, no religious orders" requirement at Girdwood's annual Forest Fair. (See prior posting.) Under the settlement, the city will allow the evangelists to distribute leaflets in the park that is used by Forest Fair. However whether they will be able to proselytize at Forest Fiar itself next year will be up to the Fair's promoters.  A city attorney said that control of the park during events like the Fair in in the hands of the organization that has received a permit to stage the event.

Injunction Denied Against Picketing Ordinance

In O'Connell v. City of New Bern, North Carolina, (ED NC, Dec. 10, 2018), a North Carolina federal district court refused to grant a preliminary injunction to block enforcement of the city's ordinance that regulates picketing.  Plaintiff wanted to share his religious, social and political message near MumFest, but was prevented from handing out literature and carrying a cross.

Victim of Neo-Nazi Website Attacks Can Move Ahead With Lawsuit

In Gersh v. Anglin, (D MT, Nov. 14, 2018), a Montana federal district court denied a motion to dismiss made by Andrew Anglin, publisher of the alt-right website the Daily Stormer in a suit against him for invasion of privacy, intentional infliction of emotional distress and violation of Montana's Anti-Intimidation Act.  The suit was filed by Tany Gersh, a realtor who was the subject of abusive articles on Daily Stormer over her interactions with the mother of neo-Nazi leader Richard Spencer. As described by the court:

In the articles, Anglin described Gersh's behavior as extortion, and Anglin drew heavily on crude ethnic stereotypes, painting Gersh as acting in furtherance of a perceived Jewish agenda and using Holocaust imagery and rhetoric. He called for "confrontation" and "action"....

When Gersh filed her Complaint in the spring of 2017, she and her family had received more than 700 disparaging and/or threatening messages over phone calls, voicemails, text messages, emails, letters, social media comments, and Christmas cards. 

Refusing to dismiss the suit on free speech grounds without a more fully developed factual record, the court said in part:

At minimum, Gersh has made a plausible claim that Anglin' s speech involved a matter of strictly private concern.... 

The context of the case is, at first blush, public-a series of blog posts on an alt-right "news" blog, which often engages with political issues, albeit from an extremist viewpoint. However, under a liberal interpretation of the Complaint, the content of the speech may be seen as strictly private; Anglin launched a campaign of unrelated personal attacks on a Whitefish realtor, her husband, and their son because of a perceived conflict between Gersh and the mother of Anglin's friend, another white supremacist. Although Anglin drew heavily on his readers' hatred and fear of ethnic Jews, rousing their political sympathies, there is more than a colorable claim that he did so strictly to further his campaign to harass Gersh...

CNN reports on the decision. [Thanks to Scott Mange for the lead.]

ACLU Settles Free Speech Suit Against Missouri City

ACLU of Missouri announced yesterday that it has settled a lawsuit which it filed earlier this year against the city of Wentzville after the city removed a woman from a Board of Alderman's meeting for criticizing a 16-foot "In God We Trust" sign that had been installed on the front of the meeting room dias. According to the ACLU:

Tonight, the Wentzville governing body passed and read aloud a resolution affirming its commitment to uphold First Amendment freedoms and acknowledging that members of the public of any or no religions tradition are welcome to participate in local government. The city also resolved to apply the updated city code evenhandedly, without censoring speech based on its content during the open forum portion of a Wentzville Board of Aldermen meeting.

The settlement also stipulates that Wentzville must advise law enforcement officers assigned to public meetings that they have an independent obligation to uphold the Constitution. Officers will now independently assess if probable cause exists before removing someone from a meeting.

Professor Sues Over Requirement To Address Students Using Their Preferred Pronoun

Yesterday a philosophy professor at Shawnee State University in Portsmouth, Ohio filed suit against the trustees and administrators at the school charging that they have violated his free exercise and free speech rights in the enforcement of the University's policy barring discrimination on the basis of gender identity.  The complaint (full text) in Meriwether v. Trustees of Shawnee State University, (SD OH, filed 11/5/2018) complains that University officials enforce university policies to require faculty to use the pronoun preferred by a student when addressing the student. Plaintiff, Prof. Nicholas Meriwether, asserts in part in his complaint:

85. Dr. Meriwether’s Christian faith governs the way he thinks about human nature, marriage, gender, sexuality, morality, politics, and social issues, and it causes him to hold sincerely-held religious beliefs in these areas.

86. Dr. Meriwether’s convictions concerning human nature, the purpose and meaning of life, and ethical standards that are to govern human conduct are drawn from the Bible.

87. Dr. Meriwether believes that God created human beings as either male orbfemale, that this gender is fixed in each person from the moment of conception, and that it cannot be changed, regardless of an individual’s feelings or desires.

88. Dr. Meriwether also believes he cannot affirm as true ideas and concepts that are not true, as this would violate Biblical injunctions against dishonesty and lying.

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