Supreme Court

Among the hubbub over a just-signed law in Indiana concerning the role of religious wedding professionals in same-sex weddings – including a threatened cancellation of a gamer convention – one professor is asking everyone to chill.

Mark Silk, professor of religion in public life at Trinity College, writes at Religion News Service that the law – modeled on the federal Religious Freedom Restoration Act – and other states’ legislation are “far from guarantees of a religious right to discriminate”:

[State] RFRAs would have courts apply the standard of “strict scrutiny” when free exercise claims are made, meaning that when someone asks for a religious exemption from a law the government must demonstrate that it has a “compelling interest” and that it has advanced that interest by the “least restrictive means.” Thus, a sincerely cannibalistic sect could be prevented from exercising its faith by the compelling government interest in protecting human life and the least restrictive means of forbidding the killing and eating of people.

The same principle holds when it comes to serving mixed-race couples, another bogeyman of Indiana RFRA opponents:

As the Court made clear when it banned anti-miscegenation laws in Loving v. Virginia (1967), the government has a compelling interest in prohibiting racial discrimination with respect to marriage. And the least restrictive means of prohibiting it is, simply, not to permit religious exceptions to laws banning racial discrimination in matters related to marriage. So even though it was once common to cite Scripture as the basis for opposing “race mixing,” the courts won’t give florists, bakers etc. the religious right to refuse their services to mixed-race couples.

What we should all be focused on, Silk says, is whether the Supreme Court strikes down same-sex marriage bans – in which case the state RFRAs will be pointless regarding gay marriage.

Read the column.

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What is it with head-scratching student opinion pieces this week?

The editorial board of the The Pitt News at the University of Pittsburgh appears to be unfamiliar with the bedrock judicial precedents that protect its very right to publish.

Responding to the racist chants on a bus by frat members at the University of Oklahoma last week, the board correctly notes that “some legal experts” – you know, the ones who’ve actually read Supreme Court precedents – have assailed the school’s expulsion of the alleged chant leaders as a violation of their First Amendment rights.

The board calls this legal analysis as “equally shocking” as the actual racist chants:

If we construe the Constitution in this manner, we are authorizing and perpetuating a racist culture that trickles down to the university level, making an entire group feel unwelcome on their campus.

While the Supreme Court famously noted in 1969 that students don’t “shed their … rights at the schoolhouse gate,” misconceptions about the First Amendment lead to overreaching, drastic conclusions. It’s all too common to assume that you can say whatever you like because freedom of speech exists. In addition, the framers of the Constitution created the First Amendment to criticize government authority, not necessarily to ostracize others.

Right, that’s what the First Amendment is for.

Without citing any legal precedent whatsoever, the board says the University of Oklahoma “cannot allow students to use such harmful banter without consequence” because it would violate the Civil Rights Act.

It approvingly cites an argument by a law professor with no listed First Amendment scholarship that racist chants on a bus, in and of themselves, count as a “substantial disruption” under the Supreme Court’s Tinker ruling. Good luck finding a court willing to consider applying a high school precedent to a public university, to say nothing of the substantial-disruption threshold.

It’s sad that college students think this is convincing reasoning:

Tolerating such racist language instills a poor reflection upon the school. As a part of a university, students should abide by its policies — with freedom comes responsibility, especially with our essential First Amendment right.

Raving about lynchings might seem innocuous to frat members, but this discourse doesn’t belong at a higher learning institution — or anywhere. If such behavior is excused at the university level, it could seep into modern society.

Right, because these two punished students have been so celebrated in public opinion. And in a sign that the newsroom thesaurus is getting used:

We don’t have a place on our campuses for this barbarous apartheid.

Read the editorial.

h/t Alexandra Zimmern

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College students’ free speech rights were endangered by a 2013 court ruling that at first glance had nothing to do with them – essentially criminalizing violent rap lyrics on Facebook.

First Amendment student advocates are back at the Supreme Court now to argue that another unrelated case will be used to stifle what students can say and do on campus.

The Foundation for Individual Rights in Education (FIRE) filed a friend-of-the-court brief asking the high court to uphold a ruling that says “specialty license plates” aren’t government speech. The ruling concerns a “Confederate veterans” group that wants their own plate in Texas.

What’s the student connection, you ask?

If the Court … holds that the messages and images that appear on state-issued specialty license plates are government speech, public college administrators nationwide will exploit the ruling as a new opportunity to further restrict protected expression on campus. Should this Court decide that specialty license plates are government speech because state officials are involved in the production process, college and university administrators will soon claim student and faculty expression that involves university procedures is likewise “government speech” that they have the power to control and censor.

Despite this Court’s repeated recognition of the crucial importance of free speech on public college campuses, censorship of student and faculty speech is endemic. In FIRE’s experience, college administrators often exploit perceived ambiguities in the law in an attempt to justify restrictions on faculty and student speech. Many colleges already wield dubious claims of trademark infringement against students and faculty in order to curtail speech that is controversial or critical of the institution, alleging that such speech will be mistaken for institutional speech—a contention that touches upon the core issue in this case.

NORML-ISU.norml-isuOne of those instances is happening at Iowa State University, where the administration has told a pro-marijuana campus group it can’t wear T-shirts advocating its cause because they say “ISU” and have the school’s cardinal mascot, implying the school endorses illegal drugs.

FIRE is litigating that case as part of its Stand Up For Speech project, and a judge has already ruled that the case can go forward, including against ISU’s president in his personal capacity. The group told the high court:

In fact, FIRE is aware that at least one university is awaiting the outcome of this case to support its argument in federal district court that a student organization’s T-shirts amount to institutional speech and may thus be censored without violating the First Amendment. In denying the university’s motion to dismiss, the judge stated that the university’s argument could not provide a legal basis to dismiss the case at present but that the issue was undecided and this case was before the Court.

The Supreme Court needs to be aware of unintended consequences from its rulings, FIRE said, referring to the Garcetti decision, which said public employees can be punished for making “statements pursuant to their official duties”:

When this Court left open the possibility that its holding in Garcetti was applicable to the scholarship and teaching of public university professors, universities immediately began to argue—with success in some circuits—that such speech was unprotected, to the continuing detriment of academic freedom on campus. Absent an explicit holding that the speech of students and faculty on public university campuses is presumptively private speech, a holding for Petitioners would do similar damage to freedom of expression.

In a blog post explaining its brief, FIRE notes that trademarks are also at issue in another Stand Up For Speech case,  at Chicago State University, which involves a faculty blog that’s critical of the administration and has been targeted for censorship on “government speech” grounds.

Read the blog post.

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Unlike ‘Hobby Lobby,’ Christian school won’t have to pay fines for noncompliance

Geneva College isn’t “complicit” in providing abortion drugs for students and employees by telling the government it won’t pay for them in its health plan, the 3rd U.S. Circuit Court of Appeals ruled this week.

The appeals court overturned a district court ruling that found “self-certification” by the Presbyterian school in Pennsylvania violated the Religious Freedom Restoration Act.

The Alliance Defending Freedom, which represented the school, said in a statement Wednesday it was “seriously considering” appealing the ruling.

The crux of the dispute lies in whether Geneva College “triggers, facilitates, and makes [it] complicit in the provision” of abortion drugs by its insurance company when it registers its religious objections with the government.

The appeals court decision, written by Judge Marjorie Rendell, distinguishes the case from the Supreme Court’s ruling in the Hobby Lobby case, where a for-profit corporation run by an evangelical family was facing the choice of providing health coverage that includes abortion drugs or paying “substantial fines.”

Geneva College, by contrast, is “not faced with a ‘provide’ or ‘pay’ dilemma because they have a third option—notification pursuant to the accommodation—to avoid both providing contraceptive coverage to their employees and facing penalties for noncompliance with the contraceptive coverage requirement,” Rendell wrote.

Self-certification does nothing to trigger abortion-drug coverage, Rendell said: “Federal law, rather than any involvement by the appellees in filling out or submitting the self-certification form, creates the obligation of the insurance issuers and third-party administrators to provide coverage for contraceptive services” under the Affordable Care Act.

Forcing the government itself to facilitate ‘spiritual development’?

Geneva College chooses to avoid complicity in abortion precisely through a “declaration that they will not be complicit in providing coverage” – the self-certification form, Rendell said. “Ultimately, the regulatory notice requirement does not necessitate any action that interferes with the appellees’ religious activities.”

The judge said the college was trying to exercise “a religious veto” against an insurance company’s legal requirement to provide contraceptive coverage.

Rendell used the hypothetical example of a man who takes time off work on a religious holiday but refuses to submit a “time-off request” because it would make him complicit in someone else working on that religious holiday, in violation of his beliefs.

The decision cites a Supreme Court precedent involving American Indian objections to the use of a Social Security number to get welfare benefits. The high court said in the Bowen decision: “Never to our knowledge has the Court interpreted the First Amendment to require the Government itself to behave in ways that the individual believes will further his or her spiritual development or that of his or her family.”

Rendell said the district court was “misguided” in accepting Geneva College’s claim that its self-certification was the “central cog” that enabled students and employees to get abortion drugs.

Because it has “dispelled the notion that the self-certification procedure is burdensome,” the appeals court “need not consider whether the burden is substantial” on the college, according to the opinion.

Rendell also said the judges wouldn’t consider whether self-certification was the “least restrictive means” of providing abortion drugs to women. That’s part of the legal standard known as strict scrutiny, which courts apply when considering infringements on constitutional rights.

“Geneva College simply wants to abide by the Christian faith it espouses and teaches instead of being forced into an unacceptable inconsistency by the government,” Alliance Defending Freedom said after the ruling. “The administration has no business punishing people of faith for making decisions consistent with that faith.”

Greg Piper is an assistant editor at The College Fix. (@GregPiper)

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Religious groups that operate on college campuses sometimes find themselves under fire for requiring their student leaders to follow certain faith-based rules, or express faith at all.

InterVarsity Christian Fellowship has run into this challenge throughout California and in some other states.

The group got validated by the 6th U.S. Circuit Court of Appeals for a related right on Thursday – the right to require its own employees to follow faith-based rules.

The appeals court ruled that an InterVarsity employee who was let go because her marriage fell apart can’t sue the organization under employment discrimination laws, because it’s protected by the First Amendment’s “ministerial exception” as most recently defined by the Supreme Court in 2012.

Though it’s an equal opportunity employer, InterVarsity requires employees annually to agree with its “purpose statement and doctrinal basis,” one of which concerns marriage.

The court said that though InterVarsity isn’t a denomination, it’s a “religiously affiliated entity” that actively ministers in a Christian light. Because the employee has a “formal title” – spiritual director – and “religious function,” her job falls under the ministerial exception.

Though the employee claims that InterVarsity “waived” its right to use the exception – apparently because it didn’t dismiss men in ministry who got divorced – the court said the Supreme Court spoke clearly in 2012 in saying that religious organizations simply can’t waive their ministerial exception rights.

The Alliance Defending Freedom, which filed a brief in favor of InterVarsity, applauded the decision, specifically its finding that the First Amendment’s religion clauses are a “structural limitation imposed on the government … that can never be waived.”

Read the decision.

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If you don’t know much about First Amendment law, start with the Tinkers.

Siblings Mary Beth and John went all the way to the Supreme Court in 1969 to defend their right to wear black armbands to their public school, a silent protest against the Vietnam War. The majority opinion recognized that students – and their teachers – don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Though that precedent for the rights of students has been muddied by subsequent rulings, Tinker still carries substantial weight – which is why it’s so heartening to see the siblings return to the high court to demand speech rights in the face of the “heckler’s veto.”

They filed a friend-of-the-court brief in favor of California students who were told they couldn’t wear American flag-themed clothing on Cinco de Mayo because Hispanic students complained.

Their lawyers are the UCLA law professor and blogger Eugene Volokh and Bob Corn-Revere, a D.C. heavy-hitter who’s leading the Stand Up for Speech litigation project.

Keep your Manson T-shirts at home

The 9th U.S. Circuit Court of Appeals approved the school’s action, saying it wasn’t a First Amendment violation, sparking a severe rebuke from three judges who asked for a full-court rehearing.

Even aside from the circuit split – the 9th Circuit diverged from the 7th and 11th – it’s long past time for the Supreme Court to answer “the question of student political speech at school,” the siblings said:

The lack of guidance [about applying Tinker] has left lower courts in the dark about how Tinker should apply in elementary and secondary schools today. This case is an excellent vehicle to offer such further guidance that will provide much-needed clarity for judges, administrators, and students.

Many school speech cases involve speech that might potentially lead to a hostile, even violent, reaction. Tinker itself involved such speech. This case is thus within the core of the Tinker doctrine, and provides an opportunity to address how the First Amendment applies to such potentially provocative speech. Indeed the Ninth Circuit’s approval of a heckler’s veto in this case shows how far some courts have traveled from Tinker.

The siblings warn that students will get the idea that “threatening speakers is an effective way to suppress speech,” producing more threats and more suppression of speech beyond patriotic sentiments.

The brief amusingly lays out the convoluted interpretations of Tinker, where in some parts of the country students can wear T-shirts with anti-homosexual messages, while in others, they can’t wear Marilyn Manson T-shirts because that band “promote[d] destructive conduct and demoralizing values.”

You think Vietnam was polite disagreement?

And nothing has really changed since Tinker, the brief says – debate over Vietnam was “vehement” across the country, and the district judge who upheld the anti-armband policy warned that wearing armbands would “disturb the disciplined atmosphere required for any classroom.”

The Tinker house even got death threats:

One person telephoned the Tinkers’ home on Christmas Eve and said “the house would be blown up by morning.” … A woman called for Mary Beth, and when the young teen got on the line, said, “Is this Mary Beth? … I’m going to kill you.” … The Tinkers received other threatening telephone calls as well. They also received hate mail, and their house was vandalized with red paint.

The heckler’s veto was also attempted during the civil rights movement and in the expulsion of Jehovah’s Witness children who refused to salute the flag, the brief says:

In such an atmosphere, a school principal confronted with a wave of patriotic fervor might conclude that preventing potential disruption justifies forcing a few dissenters to profess love for flag and country. After all, if the Ninth Circuit is correct in holding that the need for order in the public schools trumps the heckler’s veto doctrine, why not dispense with the prohibition against compelled speech as well?

School officials have “some latitude” to maintain order and prevent physical confrontations, but not “absolute discretion,” the brief says:

The [9th Circuit] decision … undermines constitutional values by teaching law-abiding students that the peaceful must surrender their rights in the face of hostility from the violent. Nothing could be more antithetical to First Amendment principles, especially in view of recent events.

Hinting at the growing use of anonymous communications tools like Yik Yak, the brief says:

[Students] might be able to convey their threats indirectly or anonymously, thus facing little risk of punishment. And for this little risk, they would get a substantial reward, in the form of successfully shutting up the speech they dislike – a cheap exercise of power over others that is especially likely to appeal to some

It’s a powerful brief, so read the whole thing.

h/t Student Press Law Center

Greg Piper is an assistant editor at The College Fix. (@GregPiper)

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