Court Says Dobbs Decision Does Not Undercut Freedom of Access To Clinic Entrances Act

In United States v. Gallagher, (MD TN, July 3, 2023), a Tennessee federal district court became the first court to rule on whether the Supreme Court's Dobbs decision affects the constitutionality of the Freedom of Access to Clinic Entrances ("FACE") Act.  In the case, eleven co-defendants sought dismissal of their indictments for violating FACE. They first argued that since Dobbs held abortion is not entitled to heightened protection under the 14th Amendment, Congress' reliance in enacting the law on its 14th Amendment Section 5 enforcement powers is undercut. The court responded in part:

While the question of how section 5 applies to the FACE Act may be of some abstract or academic interest, however, it is of limited practical importance, given that section 5 is only one of two powers on which Congress relied in enacting the FACE Act, the other of which—the power to regulate interstate commerce—was not at issue in Dobbs.

Later in its opinion, the court rejected defendants' argument that Dobbs effectively created a carveout of abortion services from commerce clause coverage. It also rejected defendants' argument that they could not be prosecuted under 18 USC §241 for conspiring to prevent the exercise of a federal right. The court said "§ 241 does not require that the right in question be constitutional, only that it be federal. FACE is, of course, a federal statute...."

The court also rejected defendants' argument that the government is engaged in impermissible selective enforcement because it has not brought enough prosecutions under the FACE Act against individuals who have interfered in the operation of anti-abortion “crisis pregnancy centers.”

It went on to reject defendants' free speech arguments, saying in part:

Nor is the FACE Act being applied in an unconstitutional manner to these particular defendants based on their viewpoints or participation in First Amendment-protected activities, as would be required for a so-called “vindictive prosecution” defense. “...

Because there is no actual evidence of any such improper motive, the defendants engage in a sleight of hand, whereby they have treated any statement by the Department of Justice indicating a desire to safeguard access to abortion as evidence of a desire to punish these defendants for Dobbs. The defendants, though, are not the center of the moral or political universe. A desire to safeguard access to abortion is a desire to safeguard access to abortion—not an affront directed at them. More importantly, safeguarding access to abortion is, particularly under Dobbs, an entirely appropriate thing for legislatures and executives to do, if that is the course they choose. Indeed, it is harder to imagine a more fulsome endorsement of the elected branches’ power to set abortion policy than Dobbs...

Moving to defendants' Free Exercise/ RFRA claims, the court said in part:

The boundaries of the Free Exercise Clause are a topic of much disagreement.... The defendants’ argument, however, goes to something much more fundamental. Although the defendants go to great lengths to make this issue more complicated than it is, they ultimately ask a straightforward question: Does the Free Exercise Clause grant individuals who are acting out of religious motivations freedom to commit actions that otherwise would be crimes against the person or property of others through physical invasion, intimidation, or threat? The answer is similarly straightforward: No, it does not....

The defendants argued that RFRA requires that the state have a compelling interest to substantially burden religious exercise, and that after Dobbs there cannot be a compelling interest in protecting access to abortion. The court responded in part:

... [T]he Supreme Court has never held that a “compelling interest” depends upon something being considered a fundamental right. They are different constitutional concepts, performing different jurisprudential functions.

Supreme Court: Web Designer's Free Speech Rights Allow Her to Refuse to Design Websites for Same-Sex Weddings

The U.S. Supreme Court today in 303 Creative LLC v. Elenis, (Sup. Ct., June 30, 2023), in a 6-3 decision, held that the 1st Amendment's free speech protections bars Colorado from using its public accommodation anti-discrimination law to require a wedding website designer to design websites for same-sex weddings in violation of her religious beliefs. Justice Gorsuch's majority opinion says in part:

The Tenth Circuit held that the wedding websites Ms. Smith seeks to create qualify as “pure speech” under this Court’s precedents.... We agree....

Under Colorado’s logic, the government may compel anyone who speaks for pay on a given topic to accept all commissions on that same topic—no matter the underlying message—if the topic somehow implicates a customer’s statutorily protected trait.... Taken seriously, that principle would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty. The government could require “an unwilling Muslim movie director to make a film with a Zionist message,” or “an atheist muralist to accept a commission celebrating Evangelical zeal,” so long as they would make films or murals for other members of the public with different messages.....

Of course, as the State emphasizes, Ms. Smith offers her speech for pay and does so through 303 Creative LLC, a company in which she is “the sole member-owner.”... But none of that makes a difference. Does anyone think a speechwriter loses his First Amendment right to choose for whom he works if he accepts money in return? Or that a visual artist who accepts commissions from the public does the same? Many of the world’s great works of literature and art were created with an expectation of compensation. Nor, this Court has held, do speakers shed their First Amendment protections by employing the corporate form to disseminate their speech. This fact underlies our cases involving everything from movie producers to book publishers to newspapers....

In this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance. In the past, other States in Barnette, Hurley, and Dale have similarly tested the First Amendment’s boundaries by seeking to compel speech they thought vital at the time. But, as this Court has long held, the opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong.

Justice Sotomayor, joined by Justices Kagan and Jackson, filed a dissenting opinion, saying in part:

A public accommodations law has two core purposes. First, the law ensures “equal access to publicly available goods and services.”...

Second, a public accommodations law ensures equal dignity in the common market. Indeed, that is the law’s “fundamental object”: “to vindicate ‘the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.’”...

Time and again, businesses and other commercial entities have claimed constitutional rights to discriminate. And time and again, this Court has courageously stood up to those claims—until today. Today, the Court shrinks....

This Court has long held that “the First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech.”...

CADA’s Accommodation Clause and its application here are valid regulations of conduct. It is well settled that a public accommodations law like the Accommodation Clause does not “target speech or discriminate on the basis of its content.”... Rather, “the focal point of its prohibition” is “on the act of discriminating against individuals in the provision of publicly available goods, privileges, and services.”...

Petitioners remain free to advocate the idea that same-sex marriage betrays God’s laws.... Even if Smith believes God is calling her to do so through her for-profit company, the company need not hold out its goods or services to the public at large. Many filmmakers, visual artists, and writers never do....

The decision threatens to balkanize the market and to allow the exclusion of other groups from many services. A website designer could equally refuse to create a wedding website for an interracial couple, for example. How quickly we forget that opposition to interracial marriage was often because “‘Almighty God . . . did not intend for the races to mix.’”... Yet the reason for discrimination need not even be religious, as this case arises under the Free Speech Clause. A stationer could refuse to sell a birth announcement for a disabled couple because she opposes their having a child.... And so on.....

AP reports on the decision.

Christian Pre-School Challenges Exclusion from Colorado State Aid Program

Suit was filed this week in a Colorado federal district court challenging requirements that Colorado has imposed on pre-schools in order for them to participate and receive funding in the state's universal pre-school program. The complaint (full text) in Darren Patterson Christian Academy v. Roy, (D CO, filed 6/20/2023), alleges in part:

9.... [T]he Colorado Department of Early Childhood ... is requiring religious preschools like Darren Patterson Christian Academy to forgo their religious character, beliefs, and exercise to participate in UPK.

10. The Department does so through two provisions that prohibit discrimination against any person based on religion, sexual orientation, or gender identity.

11. So even though the school welcomes all families and children, these provisions would force it to hire employees who do not share its faith and to alter internal rules and policies that are based on the school’s religious beliefs about sexuality and gender, including those that relate to restroom usage, pronouns, dress codes, and student housing during school expeditions and field trips....

Plaintiff contends that the requirements violate its rights under the federal Constitiuion's Free Exercise, Free Speech and Equal Protection Clauses. ADF issued a press release announcing the filing of the lawsuit.

2nd Circuit Rejects Challenge to Abortion Clinic Bubble Zone Law

In Vitagliano v. County of Westchester, (2d Cir., June 21, 2023), the U.S. 2nd Circuit Court of Appeals held that plaintiff, who the court describes as "an aspiring pro-life sidewalk counselor who wishes to approach women entering abortion clinics and engage them in peaceful conversation about abortion alternatives," has standing to challenge Westchester County's recently-enacted 8-foot "bubble-zone" law. The court concluded that plaintiff has standing.  She had demonstrated a credible threat of enforcement of the law against her. Plaintiff conceded that the bubble-zone law survived constitutional attack under existing Supreme Court precedent.  She brought suit hoping to convince the Supreme court to overrule its 2000 decision that upheld a similar law. The 2nd Circuit thus affirmed the district court's dismissal of the challenge to Westchester County's ordinance, opening the way for appellant to seek Supreme Court review. Becket has background on the case.

Maine Sued Over New Limits On Religious Schools In Tuition Payment Program

 On Tuesday, a Catholic school in Maine and parents who would like to send their children to that school under Maine's tuition payment program for students from districts without public high schools filed suit in a Maine federal district court challenging new restrictions which the Maine legislature imposed on schools participating in the tuition payment program. The complaint (full text) in St. Dominic Academy v. Makin, (D ME, filed 6/13/2023), contends that the legislature enacted the new provisions to exclude religious schools after the U.S. Supreme Court in Carson v. Makin invalidated a requirement that participating schools be nonsectarian. The complaint explains: 

Among other things, Maine:

• Imposed a new religious neutrality requirement on schools, stating that “to the extent that an educational institution permits religious expression, it cannot discriminate between religions in so doing”;

• Imposed a new religious nondiscrimination requirement on schools; and

• Removed the religious exemption that had previously allowed religious (but “nonsectarian”) schools to handle sensitive issues relating to sexual orientation and gender identity in a way that reflected their faith commitments....

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

Court Tells Catholic Bookstore to Litigate Over Religious Organization Exception to Nondiscrimination Law

In The Catholic Bookstore, Inc. v. City of Jacksonville, (MD FL, June 9, 2023), a Florida federal district court found that a Catholic bookstore has standing to challenge Jacksonville's Human Rights Ordinance on free speech grounds.  It also concluded that the claim is ripe. The bookstore wants to publicize its policy requiring its staff to address co-workers and customers only by "pronouns and titles that align with the biologically originating sex of the person being referenced...." The city's Ordinance provides in part that it is unlawful to publish, circulate or display any communication indicating that service will be denied, or that patronage is unwelcome from a person because of sexual orientation or gender identity. The court, however, concluded that it is unclear whether the Human Rights Ordinance's religious organization exception applies to the bookstore.  The court went on to deny plaintiff's motion for a preliminary injunction, dismiss plaintiff's complaint without prejudice, and ordered plaintiff to file an amended complaint followed by a motion for summary judgment limited to the religious exception issue so it can resolve that issue before dealing with the rest of the case.

3rd Circuit Hears Oral Arguments In Abortion Clinic Buffer Zone Challenge

The U.S. 3rd Circuit Court of Appeals yesterday heard oral arguments in Reilly v. City of Harrisburg (audio of full oral arguments). In the case below (MD PA, March 28, 2022) (full text), the court dismissed a suit by anti-abortion sidewalk counselors to Harrisburg's ordinance creating a 20-foot buffer zone designed to exclude protesters around health-care facilities, including abortion clinics. Liberty Counsel issued a press release previewing its arguments for appellants in the case.

State Law May Bar Women's Spa from Refusing to Serve Transgender Women Who Have Not Had Sex-Confirmation Surgery

In Olympus Spa v. Armstrong, (WD WA, June 5, 2023), a Washington federal district court dismissed, with leave to amend, a suit by a Korean style spa designed for women. The suit challenges Washington's public accommodation law which bars discrimination, among other things, on the basis of gender expression or identity.  Because spa patrons are required to be naked during certain spa services (massages and body scrubs), the spa refuses to serve transgender women who have not gone through post-operative sex-confirmation surgery. The spa advertises itself as welcoming "biological women." Three of the spas employees and one of its patrons are also plaintiffs in the case.  Plaintiffs claim that their requiring them to service nude males and females in the same rooms substantially burdens the exercise of their religious beliefs.  The court held however that because the public accommodation law is neutral and generally applicable, it needs to meet only rational basis review and does so because of the state's interest in ensuring equal access to public accommodation. 

The court also rejected plaintiffs' claim that their free expression rights were violated by requiring them to remove language from their website that only "biological women" are females. The court said in part:

The WLAD [Washington Law Against Discrimination] bars Olympus Spa from denying services to customers based on sexual orientation and, in this regard, it incidentally burdens Olympus Spa’s speech by prohibiting advertisement of discriminatory entrance policies (e.g., one that permits only “biological women”). But that does not convert the WLAD into a content-based regulation....

Finally, the court dismissed plaintiffs' freedom of association claims, saying in part:

The Court does not minimize the privacy concerns at play when employees are performing exfoliating massages on nude patrons. Aside from this nudity, though, there is simply nothing private about the relationship between Olympus Spa, its employees, and the random strangers who walk in the door seeking a massage. Nor is there anything selective about the association at issue beyond Olympus Spa’s “biological women” policy. The Court therefore has little difficulty concluding that the personal attachments implicated here are too attenuated to qualify for constitutional protection.

Court Reaffirms Refusal to Dismiss Case Challenging 1st-Grade Teacher's Gender Identity Instruction

In Tatel v. Mt. Lebanon School District (II), (WD PA, May 31, 2023), a Pennsylvania federal district court reaffirmed its prior decision and concluded that parents of first-grade students have asserted plausible claims that their due process and free exercise rights, as well as their rights to familial privacy and equal protection, were violated by a teacher who pursued her own agenda in discussing gender identity with young students.  The court said in part:

This case ... involves not merely instruction to influence tolerance of other children or families, but efforts to inculcate a teacher’s beliefs about transgender topics in Plaintiffs’ own children. ... [T]he allegations in this case go beyond mere reading of a few books. Here, the teacher allegedly pursued her agenda throughout the school year, including teaching first-graders that their parents may be wrong about their gender, telling one boy could dress like his mother, and telling the children to keep the teacher’s discussions about gender topics secret from their parents.... [I]t was the children’s own family and their own gender identity that Williams targeted. Plaintiffs allege that Williams targeted one child for repeated approaches about gender dysphoria despite, or because of, the parents’ beliefs.... It is reasonable to infer that Williams intended to influence the children’s own gender identity and to have at least one child become like the teacher’s transgender child.

In assessing plaintiffs' free exercise claim, the court said in part: 

Plaintiffs allege that Williams’ agenda about gender dysphoria and transgender transitioning conflicts with their sincerely held religious and moral beliefs that “human beings are created male or female and that the natural created order regarding human sexuality cannot be changed regardless of individual feelings, beliefs, or discomfort with one’s identity, and biological reality, as either male or female.”... Plaintiffs contend that Defendants deliberately supplanted the parents’ role to control the instruction of their young children about their gender identity in accordance with their religious values ... and adopted a de facto policy that Williams could continue to advocate her agenda to first-graders in the future without notice or opt out rights for the parents.... As noted, this case is not about teaching kindness or tolerance, but about a teacher’s agenda to instruct first-graders that their parents’ religious beliefs about their own children’s gender are or may be wrong.....

Volokh Conspiracy has additional discussion of the case.

Lawsuit Challenges Laws Restricting Abortion Clinic Sidewalk Counselors

Suit was filed yesterday in a Colorado federal district court challenging on free speech grounds a Colorado statute and a Denver ordinance that prohibit approaching a person within 8 feet of an abortion clinic or other health care facility "for the purpose of passing a leaflet or handbill to ..., or engaging in oral protest, education, or counseling with such other person." According to the complaint (full text) in Faustin v. Polis, (D CO, filed 6/1/2023):

Defendants’ ban on approaching women outside of abortion clinics to speak with them unquestionably discriminates based on the content—and even the viewpoint—of speech. On its face, the ban applies only to speech with a particular purpose and message: speech “for the purpose . . . of engaging in oral protest, education, or counseling.”... And it targets only that speech on one side of the abortion debate: speech “protest[ing] or counsel[ing] against” what Colorado euphemistically terms “certain medical procedures.”... Defendants’ ban is also content- and viewpoint-based due to the nature of its justification: protecting the “unwilling listener’s interest in avoiding unwanted communication” from pro-life speakers when seeking “access to a medical facility.”...

First Liberty Institute issued a press release announcing the filing of the lawsuit.

Court OK's Police Department's Rejection of Religious-Themed Flags and Uniform Patches

In Sangervasi v. City of San Jose, (ND CA, May 22, 2023), a California federal district court dismissed a suit by a police officer William Sangervasi who challenged the police department's refusal to adopt his proposed patch and flag designs. The court explained:

In August 2019, as part of the region’s celebration of Silicon Valley Pride Month, Chief Garcia raised a rainbow-themed LGBTQ pride flag in place of the City of San Jose flag on the flagpole outside SJPD headquarters....

On July 28, 2020, Chief Garcia issued official SJPD Memorandum #2020-33, introducing a rainbow-themed LGBTQ pride shoulder patch for the SJPD uniform.... 

On November 11, 2020, Mr. Sangervasi sent a memorandum to Chief Garcia titled, “Desecration of The Uniform by Memorandum #2020-33.” ... Mr. Sangervasi’s memorandum “detailed his intent to forever protect and defend the sacrosanct neutral and impartial visual appearance of The American Uniform” by submitting various “free speech patch and flag designs” that he wanted the SJPD to adopt.... Mr. Sangervasi proposed patch designs featuring phrases and images such as “natural hetero-sexual pride,” what appears to be Christian rosary beads encircling the traditional SJPD crest, and an image of the Christian archangel Saint Michael.... He proposed flag designs featuring phrases and images including, for example, “father + mother = girls + boys,” “white lives matter,” and the confederate battle flag.... Two days later... Mr. Sangervasi was placed on indefinite administrative leave.... On December 11, 2020, Mr. Sangervasi received a letter from Acting Chief Dave Knopf denying Mr. Sangervasi’s demand that the SJPD adopt Mr. Sangervasi’s patch and flag designs.

The court, rejecting plaintiff's free exercise, free speech and equal protection claims, held:

Mr. Sangervasi does not allege any burden on his sincere religious practice pursuant to a policy that is not neutral or generally applicable. Rather, he complains that, if the SJPD authorizes specialty uniform patches to be worn on a voluntary basis, it must allow him to wear religion-themed patches of his own design.... These allegations fail to state a claim for relief because the City has not created a public forum in which Mr. Sangervasi has a right to express any views, let alone those views that may be grounded in religious practice or belief. In the absence of such a forum and as discussed above, the SJPD’s patch designs amount to government speech and do not burden Mr. Sangervasi’s religious practice.

Suit Challenges High School-College Dual Enrollment Plan Exclusion of Some Religious Colleges

Suit was filed yesterday in a Minnesota federal district court challenging a Minnesota statute that excludes certain religious colleges from participating in the state's Postsecondary Enrollment Options (PSEO) program. The program allows students to earn college credits free of charge at public or private colleges while still in high school. An amendment to the PSEO law which will take effect on July 1 bars colleges from participating in the program if the school requires a faith statement from high schoolers or if any part of the admission decision is based on a high schooler's religious beliefs or affiliations.  The complaint (full text) in Loe v. Walz, (D MN, filed 5/24/2023), alleges that the new law variously violates the free exercise, free speech, Establishment Clause and equal protection rights of religious families and religious colleges. The complaint alleges in part:

172. The amendment requires Plaintiffs Crown [College] and [University of] Northwestern to choose between maintaining their religious identities and receiving an otherwise available benefit for which they have been eligible for decades. 

173. It likewise forces the Loe family and the Erickson family to either forgo receipt of an otherwise-available benefit or forgo their right to seek an education in accordance with their religious beliefs.

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

Parents Charge That Elementary School Pride Stories Violate Their Free Exercise Rights

Muslim and Christian parents filed suit yesterday in a Maryland federal district court challenging the Montgomery County School Board's policy that introduces their pre-K and elementary school students to various "Pride Storybooks." The parents are seeking the right to opt their children out of family life and human sexuality instruction, including reading of the Storybooks. The complaint (full text) in Mahmoud v. McKnight, (D MD, 5/24/2023), alleges that requiring their children to listen to the Storybooks violates the parents free exercise and free speech rights, as well as their right to control their children's education.  The complaint alleges in part:

222. The School Board’s policy to mandate the Pride Storybooks to discourage a biological understanding of human sexuality is not neutral toward religion, in part because it assumes that traditional religious views regarding family life and sexuality as supported by sound science and common sense are hurtful, hateful, or bigoted.

223. This burdens the Parents’ freedom to form their children on a matter of core religious exercise and parenting: how to understand who they are.

224. It also burdens the Student Plaintiff’s freedom to receive an education in an environment free from religious discrimination....

254. Far from guaranteeing a fair and objective discussion of religious perspectives, the School Board’s Pride Storybooks and corresponding “resource guide” preclude religious viewpoints on the topics of sexual orientation and gender identity—because of their viewpoint. That is unconstitutional.

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

AAUP Issues Report on Hamline University Islamic Art Controversy

 The Association of American University Professors Committee A on Academic Freedom and Tenure has released its report (full text) on the actions of Hamline University in refusing to renew the contract of a part-time art history professor who created a controversy when she presented two historical images of the Prophet Muhammad in an online class session. (See prior posting.) The AAUP Report concluded in part:

Professor Erika López Prater’s decision to display historical images of the Prophet Muhammad in a World Art class was not only justifiable and appropriate on both scholarly and pedagogical grounds; it was also protected by academic freedom. The Hamline administration was wrong to characterize this decision as “undeniably inconsiderate, disrespectful and Islamophobic.” Similarly, the university’s contention that care for students must “supersede” academic freedom reflected an inaccurate and harmful understanding of the nature of academic freedom in the classroom. The university has since disavowed both claims.

The Star Beacon discusses the report and the University's response to it.

European Court Upholds Politician's Conviction for Failing to Remove Third Party Hate Speech from His Facebook Page

In Sanchez v. France, (ECHR, May 15, 2023), the European Court of Human Rights by a vote of 13-4 in a Grand Chamber judgment upheld France's conviction of a candidate for election to Parliament who was convicted of inciting violence against Muslims when he failed to promptly remove anti-Muslim postings by third parties placed on his Facebook page. The authors of the comments were convicted as accomplices. The majority concluded that the conviction did not violate Article 10, §1 of the European Convention on Human Rights since that section permits an interference with free expression when "necessary in a democratic society."  The majority said in part:

148.  While political speech calls for an elevated level of protection, the freedom of political debate is not absolute in nature....

149.  Since tolerance and respect for the equal dignity of all human beings constitute the foundations of a democratic, pluralistic society, it follows that, in principle, it may be considered necessary in certain democratic societies to penalise or even prevent all forms of expression that propagate, encourage, promote or justify hatred based on intolerance (including religious intolerance), provided that any “formalities”, “conditions”, “restrictions” or “penalties” imposed are proportionate to the legitimate aim pursued.... 

176.  ... [I]n an election context, the impact of racist and xenophobic discourse becomes greater and more harmful.... That is particularly true in the present circumstances where the political and social climate was troubled, especially at the local level with “clear tensions within the population, which were evident in particular from the comments at issue, but also between the protagonists”.... 

209.  ... [T]he Court finds that the decisions of the domestic courts were based on relevant and sufficient reasons, both as to the liability attributed to the applicant, in his capacity as a politician, for the unlawful comments posted in the run-up to an election on his Facebook “wall” by third parties, who themselves were identified and prosecuted as accomplices, and as to his criminal conviction. The impugned interference can therefore be considered to have been “necessary in a democratic society”.

The Court also posted a Legal Summary of the decision.

Counselor Sues After Being Fired for Speaking About School's Gender Support Plan

Suit was filed yesterday in an Indiana federal district court by a school counselor who was fired for speaking with a reporter about her school's Gender Support Plan policy which involves using a gender transitioning student's preferred name and pronouns, sometimes without informing the student's parents. The school claimed that some of the counselor's statements to the reporter were false. The complaint (full text) in McCord v. South Madison Community School Corporation, (SD IN, filed 5/18/2023), alleges that the firing violated the counselor's free speech rights. It also alleged that the school district violated plaintiff's right to free exercise of religion, in violation of the 1st Amendment and of Indiana's Religious Freedom Restoration Act. The complaint alleges in part:

420. ... Mrs. McCord has sincerely held religious beliefs that require her not to participate in the Gender Support Plan policy; socially transitioning students and hiding social transitions from parents would violate those beliefs.

421. If South Madison had not taken adverse employment action against Mrs. McCord in retaliation for exercising her constitutional rights, she could not comply and would not intend to comply with the Gender Support Plan policy’s requirements regarding socially transitioning students and parental notification.

422. South Madison has failed to act in a neutral manner toward Mrs. McCord’s religious beliefs but has instead acted with hostility towards those beliefs.

423. Among other things, its employee, Mr. Taylor, acting pursuant to South Madison’s policies and practices, instructed Mrs. McCord to leave her religious beliefs out of her job as a school counselor.

424. Additionally, South Madison has targeted Mrs. McCord for her religious beliefs by granting accommodations allowing other employees who have not asserted Mrs. McCord’s religious beliefs not to comply with the Gender Support Plan policy, while refusing to grant one to Mrs. McCord.

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

7th Grader Sues Over School's Hate Speech Dress Code

Suit was filed yesterday in a Massachusetts federal district court challenging the Middleborough school district's Dress Code which provides:

Clothing must not state, imply, or depict hate speech or imagery that target groups based on race, ethnicity, gender, sexual orientation, gender identity, religious affiliation, or any other classification.

The complaint (full text) in Morrison v. Town of Middleborough, (ED MA, filed 5/17/2023), alleges that a 7th-grader's free speech rights were violated when he was not permitted to attend classes wearing a T-shirt carrying the message, "There are only two genders". Two weeks later he came to school wearing a shirt with the message, "There are censored genders". He was also barred from wearing this shirt.  The complaint alleges in part:

101. As Defendants interpret their Speech Policy, some viewpoints on the topic of “gender identity or expression” are permitted while some viewpoints on the same topic are prohibited. In particular, speech expressing the viewpoint that there are only two genders is prohibited, while speech expressing the viewpoint that gender is fluid and is on a spectrum is permitted....

135. Defendants’ censorship of Liam’s shirts while permitting shirts and other apparel with different messages on related topics is viewpoint discrimination, which is unconstitutional in any type of forum....

153. The Due Process Clause of the Fourteenth Amendment prohibits the government from censoring speech pursuant to vague standards that grant enforcement officials unbridled discretion.

154. The arbitrary determination by school officials of what is and is not “hate speech,” what speech “targets” a specific group, or what speech is “unacceptable to community standards” violates this norm.

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

Teachers Sue Over School District's Policy on Transgender Students

Suit was filed last month in a California federal district court by two middle school teachers who claim that their school district's policy on dealing with transgender students violates their free speech and free exercise rights, as well as the rights of parents.  The complaint (full text) in Mirabelli v. Olson, (SD CA, filed 4/27/2023), alleges in part:

According to EUSD’s policies, all elementary and middle school teachers must unhesitatingly accept a child’s assertion of a transgender or gender diverse identity, and must “begin to treat the student immediately” according to their asserted gender identity. “There’s no requirement for parent or caretaker agreement or even for knowledge.”... There is absolutely no room for discussion, polite disagreement, or even questioning whether the child is sincere or acting on a whim. 

... Once a child’s social transitioning has begun, EUSD elementary and middle school teachers must ensure that parents do not find out. EUSD’s policies state that “revealing a student’s transgender status to individuals who do not have a legitimate need for the information, without the student’s consent” is prohibited, and “parents or caretakers” are, according to EUSD, individuals who “do not have a legitimate need for the information,” irrespective of the age of the student or the specific facts of the situation....

Faced with EUSD’s immoral policies deceiving parents, both Mrs. Mirabelli and Mrs. West sought an accommodation that would allow them to act in the best interests of the children in their care—as required by their moral and religious convictions....

Mrs. Mirabelli’s and Mrs. West’s request was flatly denied.

The two plaintiffs devised a "joint statement of faith" for purposes of the lawsuit, even though they come from different religious traditions. One is Roman Catholic and the other a "devout Christian."  They alleged:

Plaintiffs’ faith teaches that God immutably creates each person as male or female; these two distinct, complementary sexes reflect the image of God; and rejection of one’s biological sex is a rejection of the image of God within that person.

... Plaintiffs also believe that they cannot affirm as true those ideas and concepts that they believe are not true, nor can they aid and abet the deception of others. Doing so, they believe, would violate biblical commands against dishonesty and lying.

Fox News reports on the lawsuit.

Court Says School Must Allow After School Satan Club to Use School Space For Meetings

In The Satanic Temple, Inc. v. Saucon Valley School District, (ED PA, May 1, 2023), a Pennsylvania federal district court issued a preliminary injunction requiring the District to allow the After School Satan Club to use school facilities for meetings pursuant to a District Policy on use of school facilities by community organizations. After initial approval of the group's use of Saucon Valley Middle School for meetings, the school had received a shooting threat that required it to close for a day.  Subsequently, it "received over 40 phone calls and 50 emails or handwritten letters, daily, from concerned staff, parents, and community members." This led the District to rescind approval for the Club's use of school facilities, and led to the filing of this lawsuit. The court said in part:

Here, TST states a colorable claim that the District’s decision to rescind approval of its application and prohibit the ASSC from using school facilities for the remainder of the current school year restricts TST’s speech based on TST’s viewpoint, which shifts the burden to the District to justify its restriction on speech....

The District argues its restriction of TST’s speech is justified under the First Amendment because the District determined TST violated the District’s content-neutral Advertising Restriction contained in Policy 707 by posting social media advertisements on February 20, 2023 and February 23, 2023 that failed to clearly communicate the ASSC was not sponsored by the District....

TST makes a sufficient showing that the District selectively and inconsistently enforced its Advertising Restriction against TST as compared to other similarly situated speakers. The District’s proffered distinctions and rationale for this inconsistent enforcement are unpersuasive and fail to satisfy the District’s burden of justification. This inconsistent treatment strongly suggests viewpoint discrimination....

There is no doubt the District and Superintendent were faced with difficult, time-sensitive decisions. However, the Court’s analysis is guided by the law, not practical decision-making considerations or the Court’s own personal opinions. The law requires the Court to determine whether the District’s decision to rescind approval of TST’s application was based on the content of TST’s religious viewpoint and the reactions to it. The Court concludes it was.

ACLU issued a press release announcing the decision.

Sign Permit Did Not Infringe 1st Amendment Rights of Anti-Abortion Protester

In Roswell v. Mayor & City Council of Baltimore, (D MD, April 28, 2023), a Maryland federal district court denied a preliminary injunction to plaintiff who challenged the requirement that he obtain a permit in order to place A-frame signs outside a Planned Parenthood Clinic as part of his anti-abortion protest. Rejecting plaintiff's free speech claim, the court concluded that the permit ordinance is content neutral, is narrowly tailored to serve a significant governmental interest, and that there are ample alternatives for plaintiff to communicate his message. Rejecting plaintiff's free exercise claim, the court said in part:

Here, the challenged ordinances are unconcerned with religious exercise; they neither prohibit nor compel religious conduct. Importantly, Plaintiff has made no allegation that either the Police or Zoning ordinance was enacted for the purpose of suppressing religious expression. Further, as discussed, Plaintiff has been freely engaging in protest activity outside of the Planned Parenthood. Plaintiff contends that “his religious conviction compels him to use every effort available to dissuade women” from obtaining abortions, and he has continued to freely express his religious beliefs in front of the facility, merely without the use of A-frame signs.